G.R. No.

191002

March 17, 2010

ARTURO M. DE CASTRO, Petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL - ARROYO, Respondents. DECISION BERSAMIN, J.: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his successor, considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his successor? May the Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or being considered to succeed Chief Justice Puno, and submit the list of nominees to the incumbent President even during the period of the prohibition under Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the JBC? Precs of the Consolidated Cases Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 1910021 and G.R. No. 1911492 as special civil actions for certiorari and mandamus, praying that the JBC be compelled to submit to the incumbent President the list of at least three nominees for the position of the next Chief Justice. In G.R. No. 191032,3 Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC from conducting its search, selection and nomination proceedings for the position of Chief Justice. In G.R. No. 191057, a special civil action for mandamus,4 the Philippine Constitution Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because the incumbent President is not covered by the prohibition that applies only to appointments in the Executive Department. In Administrative Matter No. 10-2-5-SC,5 petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary. In G.R. No. 191342,6 which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice to the President for appointment during the period provided for in Section 15, Article VII. All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental importance to the Nation, because the appointment of the Chief Justice is any Presidents most important appointment.

A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),7 by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed. In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal luminaries one side holds that the incumbent President is prohibited from making appointments within two months immediately before the coming presidential elections and until the end of her term of office as President on June 30, 2010, while the other insists that the prohibition applies only to appointments to executive positions that may influence the election and, anyway, paramount national interest justifies the appointment of a Chief Justice during the election ban has impelled the JBC to defer the decision to whom to send its list of at least three nominees, whether to the incumbent President or to her successor.8 He opines that the JBC is thereby arrogating unto itself "the judicial function that is not conferred upon it by the Constitution," which has limited it to the task of recommending appointees to the Judiciary, but has not empowered it to "finally resolve constitutional questions, which is the power vested only in the Supreme Court under the Constitution." As such, he contends that the JBC acted with grave abuse of discretion in deferring the submission of the list of nominees to the President; and that a "final and definitive resolution of the constitutional questions raised above would diffuse (sic) the tension in the legal community that would go a long way to keep and maintain stability in the judiciary and the political system."9 In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on January 18, 2010 to open the search, nomination, and selection process for the position of Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief Justice is the Supreme Court itself, the Presidents authority being limited to the appointment of the Members of the Supreme Court. Hence, the JBC should not intervene in the process, unless a nominee is not yet a Member of the Supreme Court.10 For its part, PHILCONSA observes in its petition in G.R. No. 191057 that "unorthodox and exceptional circumstances spawned by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution" have bred "a frenzied inflammatory legal debate on the constitutional provisions mentioned that has divided the bench and the bar and the general public as well, because of its dimensional impact to the nation and the people," thereby fashioning "transcendental questions or issues affecting the JBCs proper exercise of its "principal function of recommending appointees to the Judiciary" by submitting only to the President (not to the next President) "a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy" from which the members of the Supreme Court and judges of the lower courts may be appointed."11 PHILCONSA further believes and submits that now is the time to revisit and review Valenzuela, the "strange and exotic Decision of the Court en banc."12 Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC "to immediately transmit to the President, within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in compliance with its mandated duty under the Constitution" in the event that the Court resolves that the President can appoint a Chief Justice even during the election ban under Section 15, Article VII of the Constitution.13 The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the "JBC has initiated the process of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the applications to the position," and "is perilously near completing the nomination

process and coming up with a list of nominees for submission to the President, entering into the period of the ban on midnight appointments on March 10, 2010," which "only highlights the pressing and compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within the period of the ban on midnight appointments."14 Antecedents These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that "vacancy shall be filled within ninety days from the occurrence thereof" from a "list of at least three nominees prepared by the Judicial and Bar Council for every vacancy." On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately. In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,15 which reads: The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno. It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates. As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter. 18 January 2010. (sgd.) MA. LUISA D. VILLARAMA Clerk of Court & Ex-Officio Secretary Judicial and Bar Council As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement dated January 20, 2010,16 viz: The Judicial and Bar Council (JBC) announces the opening for application or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO. Applications or recommendations for this position must be submitted not later than 4 February 2010 (Thursday) to the JBC Secretariat xxx: The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star.17 Conformably with its existing practice, the JBC "automatically considered" for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura.

However, the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.18 Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied, but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales.19 Declining their nominations were Atty. Henry Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Executive Officer of the JBC on February 8, 2010).20 The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office of the Ombudsman).21 In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.22 Issues Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy now before us being yet unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief Justice Puno. The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an administrative matter "to avoid any possible polemics concerning the matter," but he opines that the polemics leading to Valenzuela "would be miniscule [sic] compared to the "polemics" that have now erupted in regard to the current controversy," and that unless "put to a halt, and this may only be achieved by a ruling from the Court, the integrity of the process and the credibility of whoever is appointed to the position of Chief Justice, may irreparably be impaired."23 Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their petitions. G.R. No. 191002 a. Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent President can appoint a Chief Justice during the election ban period? b. Does the incumbent President have the power and authority to appoint during the election ban the successor of Chief Justice Puno when he vacates the

position of Chief Justice on his retirement on May 17, 2010? G.R. No. 191032 a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc? G.R. No. 191057 a. Is the constitutional prohibition against appointment under Section 15, Article VII of the Constitution applicable only to positions in the Executive Department? b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the exigencies of public service, thereby justifying these appointments during the period of prohibition? c. Does the JBC have the authority to decide whether or not to include and submit the names of nominees who manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until June 30, 2010? A. M. No. 10-2-5-SC a. Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 9, Article VIII of the Constitution? b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010? G.R. No. 191149 a. Does the JBC have the discretion to withhold the submission of the short list to President Gloria Macapagal-Arroyo? G.R. No. 191342 a. Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a grave violation of the Constitution and jurisprudence prohibiting the incumbent President from making midnight appointments two months immediately preceding the next presidential elections until the end of her term? b. Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice, constitutionally invalid in view of the JBC's illegal composition allowing each member from the Senate and the House of Representatives to have one vote each? On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342. On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the process for the selection of the nominees for the position of Chief Justice would be the public interview of the candidates and the preparation of the short list of candidates, "including the interview of the constitutional experts, as may be needed."24 It stated:25

Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential appointments "two (2) months immediately before the next presidential elections and up to the end of his term" and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines. 12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative Matter. On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010. The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function under the Constitution to recommend appointees in the Judiciary; (b) the JBC's function to recommend is a "continuing process," which does not begin with each vacancy or end with each nomination, because the goal is "to submit the list of nominees to Malacaang on the very day the vacancy arises";26 the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice Puno;27 (c) petitioner Soriano's theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase "members of the Supreme Court" found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the Chief Justice; 28 (d) a writ of mandamus can issue to compel the JBC to submit the list of nominees to the President, considering that its duty to prepare the list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the list from the President; 29 and (e) a writ of mandamus cannot issue to compel the JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the JBC's determination of who it nominates to the President is an exercise of a discretionary duty.30 The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; 31 that in their deliberations on the mandatory period for the appointment of Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight appointments, or its effects on such period, or vice versa;32 that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the President's power to appoint members of the Supreme Court to ensure its independence from "political vicissitudes" and its "insulation from political pressures,"33 such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice. The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation now refers to the appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate, Valenzuela even recognized that there might be "the imperative need for an appointment during

the period of the ban," like when the membership of the Supreme Court should be "so reduced that it will have no quorum, or should the voting on a particular important question requiring expeditious resolution be divided";34 and that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if there is any compelling reason to justify the making of the appointments during the period of the prohibition.35 Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive political issues is "quite expected";36 (b) the Court acts as the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice President and, as such, has "the power to correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC)";37 (c) if history has shown that during ordinary times the Chief Justice was appointed immediately upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason to appoint the next Chief Justice immediately upon the retirement of Chief Justice Puno;38 and (d) should the next Chief Justice come from among the incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start the selection process for the filling up of the vacancy in accordance with the constitutional mandate.39 On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit: (a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);40 (b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim (Lim); (c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan); (d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union of People's Lawyers (NUPL); (e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano); (f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur); (g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser); (h)The consolidated comment/opposition-inintervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);

(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and (j) The consolidated comment/opposition-inintervention dated March 4, 2010 of the Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP). Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the position that De Castro's petition was bereft of any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional prohibition. Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castro's fears are unfounded and baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will create a crisis in the judicial system and will worsen an already vulnerable political situation. ice is imperative for the stability of the judicial system and the political situation in the country when the election-related questions reach the Court as false, because there is an existing law on filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or an acting Chief Justice is not anathema to judicial independence; that the designation of an acting Chief Justice is not only provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on Elections, perBrillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has been repeatedly observed and has become a part of its tradition. Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election Code penalizes as an election offense the act of any government official who appoints, promotes, or gives any increase in salary or remuneration or privilege to any

government official or employee during the period of 45 days before a regular election; that the provision covers all appointing heads, officials, and officers of a government office, agency or instrumentality, including the President; that for the incumbent President to appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election Code, constitutes an election offense; that even an appointment of the next Chief Justice prior to the election ban is fundamentally invalid and without effect because there can be no appointment until a vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010. Intervenor Boiser adds that De Castro's prayer to compel the submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy. All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that the appointments by the President of the two judges during the prohibition period were void. Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the Executive Department, but also to judicial appointments, contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that Valenzuela already interpreted the prohibition as applicable to judicial appointments. Intervenor WTLOP further posits that petitioner Soriano's contention that the power to appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term "members" was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSA's prayer that the Court pass a resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSA's petition; that the role of the JBC cannot be separated from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight appointments has expired. Oppositor IBP Davao del Sur opines that the JBC - because it is neither a judicial nor a quasi-judicial body - has no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception. Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBC's act of nominating appointees to the Supreme Court is purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in submitting the list of nominees to the President, considering that the call for applications only begins from the occurrence of the vacancy in the Supreme Court; and that the commencement of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on May 17, 2010, for,

prior to this date, there is no definite legal basis for any party to claim that the submission or non-submission of the list of nominees to the President by the JBC is a matter of right under law. The main question presented in all the filings herein - because it involves two seemingly conflicting provisions of the Constitution - imperatively demands the attention and resolution of this Court, the only authority that can resolve the question definitively and finally. The imperative demand rests on the ever-present need, first, to safeguard the independence, reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily dragged into the harsh polemics brought on by the controversy; second, to settle once and for all the doubt about an outgoing President's power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of the presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of screening and nominating qualified persons for appointment to the Judiciary. Thus, we resolve. Ruling of the Court Locus Standi of Petitioners The preliminary issue to be settled is whether or not the petitioners have locus standi. Black defines locus standi as "a right of appearance in a court of justice on a given question."41 In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:42 The question on legal standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."43 Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.44 It is true that as early as in 1937, in People v. Vera,45 the Court adopted the direct injury test for determining whether a petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." Vera was followed in Custodio v. President of the Senate,46 Manila Race Horse Trainers' Association v. De la Fuente,47 Anti-Chinese League of the Philippines v. Felix,48 and Pascual v. Secretary of Public Works.49 Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan,50 the Court liberalized the approach when the cases had "transcendental importance." Some notable controversies

whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.51 In the 1975 decision in Aquino v. Commission on Elections,52 this Court decided to resolve the issues raised by the petition due to their "far-reaching implications," even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary citizens, legislators, and civic organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.53 However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right. Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,54 the Court aptly explains why: Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid down in Beauchamp v. Silk,55 where it was held that the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:56 "In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied." With respect to taxpayer's suits, Terr v. Jordan57 held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied."58 Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the continuing proceedings in the JBC, which involve "unnecessary, if not, illegal disbursement of public funds."59 PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the purpose of defending, protecting, and preserving the Constitution and promoting its growth and flowering. It also alleges that the Court has recognized its legal standing to file cases on constitutional issues in several cases.60 In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the Philippine Bar engaged in the active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the University of the Philippines. The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal standing to enjoin the submission of the list of nominees by the JBC to the President, for "[a]n adjudication of the proper interpretation and application of the constitutional ban on midnight appointments with regard to respondent JBC's function in submitting the list of

nominees is well within the concern of petitioners, who are duty bound to ensure that obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme of our democratic institution." They further allege that, reposed in them as members of the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the person appointed becomes a member of the body that has constitutional supervision and authority over them and other members of the legal profession.61 The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest them with the requisite locus standi. The issues before us are of transcendental importance to the people as a whole, and to the petitioners in particular. Indeed, the issues affect everyone (including the petitioners), regardless of one's personal interest in life, because they concern that great doubt about the authority of the incumbent President to appoint not only the successor of the retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from a far too great number of vacancies in the ranks of trial judges throughout the country. In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the requirement.62 Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,63 we pointed out: "Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest." But even if, strictly speaking, the petitioners "are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised."64 Justiciability Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe for adjudication, considering that although the selection process commenced by the JBC is going on, there is yet no final list of nominees; hence, there is no imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming President. Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination, pointing out that petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial review. Intervenors Corvera and Lim separately opine that De Castro's petition rests on an overbroad and vague allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review. Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the President should do, and are not invoking any issues that are justiciable in nature.

Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional manifestations of two Members of the Court, accented by the divided opinions and interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily newspapers are "matters of paramount and transcendental importance to the bench, bar and general public"; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court should "rule for the guidance of" the JBC; that the fact that the Court supervises the JBC does not automatically imply that the Court can rule on the issues presented in the Mendoza petition, because supervision involves oversight, which means that the subordinate officer or body must first act, and if such action is not in accordance with prescribed rules, then, and only then, may the person exercising oversight order the action to be redone to conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being illegal or unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the law in the absence of an actual case or controversy. We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the "interview of constitutional experts, as may be needed." A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy. The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to open the process of nomination and to continue the process until the submission of the list of nominees; the insistence of some of the petitioners to compel the JBC through mandamus to submit the short list to the incumbent President; the counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the incumbent President on the ground that said list should be submitted instead to the next President; the strong position that the incumbent President is already prohibited under Section 15, Article VII from making any appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the contrary position that the incumbent President is not so prohibited are only some of the real issues for determination. All such issues establish the ripeness of the controversy, considering that for some the short list must be submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely settle - with finality - the nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues.65 Herein, the facts are not in doubt, for only legal issues remain. Substantive Merits I Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary Two constitutional provisions are seemingly in conflict. The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary. The Court agrees with the submission. First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain. The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech: We have in the political part of this Constitution opted for the separation of powers in government because we believe that the only way to protect freedom and liberty is to separate and divide the awesome powers of government. Hence, we return to the separation of powers doctrine and the legislative, executive and judicial departments.66 As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the

Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article. Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President's or Acting President's term does not refer to the Members of the Supreme Court. Although Valenzuela67 came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail. Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz: V. Intent of the Constitutional Commission The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy "must be filled within two months from the date that the vacancy occurs." His proposal to have a 15member Court was not initially adopted. Persisting however in his desire to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Court's membership) of the same mandate that "IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He later agreed to suggestions to make the period three, instead of two, months. As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence. In this connection, it may be pointed out that that instruction that any "vacancy shall be filled within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language - that "a President or Acting President shall not make appointments" The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: "WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE

SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a "uniform rule" for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one. On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing power "two months immediately before the next presidential elections up to the end of his term" - was approved without discussion.68 However, the reference to the records of the Constitutional Commission did not advance or support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, "a command [to the President] to fill up any vacancy therein within 90 days from its occurrence," which even Valenzuela conceded.69 The exchanges during deliberations of the Constitutional Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court within the 90-day period was a true mandate for the President, viz: MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11. MR. CONCEPCION. Yes. MR. DE CASTRO. And the second sentence of this subsection reads: "Any vacancy shall be filled within ninety days from the occurrence thereof." MR. CONCEPCION. That is right. MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy? MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the Court had a complete complement.70 Moreover, the usage in Section 4(1), Article VIII of the word shall - an imperative, operating to impose a duty that may be enforced71 - should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution. The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was "couched in stronger negative language." Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commission's deliberations on Section 4 (1), Article VIII. How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory construction:72 xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled.

Consequently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rule's application, largely because of the principle of implied repeal. In this connection, PHILCONSA's urging of a revisit and a review of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission to have Section 4 (1), Article VIII stand independently of any other provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers.73 Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be allowed to last after its false premises have been exposed.74 It will not do to merely distinguish Valenzuela from these cases, for the result to be reached herein is entirely incompatible with what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and forgettable. We reverse Valenzuela. Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary. There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo.75 In fact, in Valenzuela, the Court so observed, stating that: xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.: xxx The second type of appointments prohibited by Section 15, Article VII consists of the so-called "midnight" appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a "caretaker" administrator whose duty was to "prepare for the orderly transfer of authority to the incoming President." Said the Court: "The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and

appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments." As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are "few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications," can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld. Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only "midnight" appointments - those made obviously for partisan reasons as shown by their number and the time of their making but also appointments presumed made for the purpose of influencing the outcome of the Presidential election. On the other hand, the exception in the same Section 15 of Article VII - allowing appointments to be made during the period of the ban therein provided - is much narrower than that recognized in Aytona. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Court's view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.76 Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the incoming President or for partisanship,77 the appointments to the Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBC's prior processing of candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must necessarily shed considerable light on "the law of the statute," i.e., the intent; hence, the enactment should be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it.78

Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the time of the establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the President could not always be assured of being recommended for the consideration of the President, because they first had to undergo the vetting of the JBC and pass muster there. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments. This insulating process was absent from the Aytona midnight appointment. Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the "constitutionality of xxx appointments" to the Court of Appeals in light of the forthcoming presidential elections. He assured that "on the basis of the (Constitutional) Commission's records, the election ban had no application to appointments to the Court of Appeals."79 This confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies in the Court of Appeals.80 The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the President's power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado. Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President. Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting President,81 and evidently refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary, because temporary or acting appointments can only undermine the independence of the Judiciary due to their being revocable at will.82 The letter and spirit of the Constitution safeguard that independence. Also, there is no law in the books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of the first and second level courts and the Justices of the third level courts may only be removed for cause, but the Members of the Supreme Court may be removed only by impeachment. Section 16 covers only the presidential appointments that require confirmation by the Commission on Appointments. Thereby, the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the requirement was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored requirement did not include appointments to the Judiciary.83 Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.84 It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of

appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof. Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010. Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining. The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Puno's retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court. The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment. Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity. In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts. Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President any President - to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court. Sec. 9, Article VIII says: xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation. xxx The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the

10

Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC. Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice? The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile's statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list. II The Judiciary Act of 1948 The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of having the next President appoint the successor. Section 12 of the Judiciary Act of 1948 states: Section 12. Vacancy in Office of Chief Justice. - In case of a vacancy in the office of Chief Justice of the Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice. The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the disability is removed. Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby resolved the question of consequence, we do not find it amiss to confront the matter now. We cannot agree with the posture. A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy, which appointments require no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution. For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to perform the duties and powers of the office. It ought to be remembered, however, that it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to the confirmation of the Commission on Appointments, and the confirmation process might take longer than expected.

The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President. Historically, under the present Constitution, there has been no wide gap between the retirement and the resignation of an incumbent Chief Justice, on one hand, and the appointment to and assumption of office of his successor, on the other hand. As summarized in the comment of the OSG, the chronology of succession is as follows: 1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the same day; 2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day; 3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991; 4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning of November 30, 1998; 5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and 6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.85 III Writ of mandamus does not lie against the JBC May the JBC be compelled to submit the list of nominees to the President? Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station.86 It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer.Mandamus is not available to direct the exercise of a judgment or discretion in a particular way.87 For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

11

Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to the President for every vacancy in the Judiciary: Section 8. xxx (5) The Council shall have the principal function of recommending appointees to the Judiciary. xxx Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list. However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy. Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment. The duty of the JBC to submit a list of nominees before the start of the President's mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty.88 For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President. The distinction between a ministerial act and a discretionary one has been delineated in the following manner: The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.89 Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill the

vacancy created by the compulsory retirement of Chief Justice Puno. IV Writ of prohibition does not lie against the JBC In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief Justice. Hence, Soriano's petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the process of nominating the successor of Chief Justice Puno, lacks merit. On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to the ex officio members from the Senate and the House of Representatives, thereby prejudicing the chances of some candidates for nomination by raising the minimum number of votes required in accordance with the rules of the JBC, is not based on the petitioners' actual interest, because they have not alleged in their petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack locus standi on that issue. WHEREFORE, the Court: 1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature; 2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and 3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council: (a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010; (b) To prepare the short list of nominees for the position of Chief Justice; (c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010; and (d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to the President the short list of nominees corresponding thereto in accordance with this decision. SO ORDERED.

12

G.R. No. 196271

October 18, 2011

DATU MICHAEL ABAS KIDA, in his personal capacity, and in representation of MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH ALSAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH SAUPI, Petitioners, vs. SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office of the President Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO TAN, Treasurer of the Philippines,Respondents. DECISION BRION, J.: On June 30, 2011, Republic Act (RA) No. 10153, entitled "An Act Providing for the Synchronization of the Elections in the Autonomous Region in Muslim Mindanao (ARMM) with the National and Local Elections and for Other Purposes" was enacted. The law reset the ARMM elections from the 8th of August 2011, to the second Monday of May 2013 and every three (3) years thereafter, to coincide with the countrys regular national and local elections. The law as well granted the President the power to "appoint officers-in-charge (OICs) for the Office of the Regional Governor, the Regional Vice-Governor, and the Members of the Regional Legislative Assembly, who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office." Even before its formal passage, the bills that became RA No. 10153 already spawned petitions against their validity; House Bill No. 4146 and Senate Bill No. 2756 were challenged in petitions filed with this Court. These petitions multiplied after RA No. 10153 was passed. Factual Antecedents The State, through Sections 15 to 22, Article X of the 1987 Constitution, mandated the creation of autonomous regions in Muslim Mindanao and the Cordilleras. Section 15 states: Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Section 18 of the Article, on the other hand, directed Congress to enact an organic act for these autonomous regions to concretely carry into effect the granted autonomy. Section 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units

in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. On August 1, 1989 or two years after the effectivity of the 1987 Constitution, Congress acted through Republic Act (RA) No. 6734 entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao." A plebiscite was held on November 6, 1990 as required by Section 18(2), Article X of RA No. 6734, thus fully establishing the Autonomous Region of Muslim Mindanao (ARMM). The initially assenting provinces were Lanao del Sur, Maguindanao, Sulu and Tawi-tawi. RA No. 6734 scheduled the first regular elections for the regional officials of the ARMM on a date not earlier than 60 days nor later than 90 days after its ratification. RA No. 9054 (entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended") was the next legislative act passed. This law provided further refinement in the basic ARMM structure first defined in the original organic act, and reset the regular elections for the ARMM regional officials to the second Monday of September 2001. Congress passed the next law affecting ARMM RA No. 91401 on June 22, 2001. This law reset the first regular elections originally scheduled under RA No. 9054, to November 26, 2001. It likewise set the plebiscite to ratify RA No. 9054 to not later than August 15, 2001. RA No. 9054 was ratified in a plebiscite held on August 14, 2001. The province of Basilan and Marawi City voted to join ARMM on the same date. RA No. 93332 was subsequently passed by Congress to reset the ARMM regional elections to the 2nd Monday of August 2005, and on the same date every 3 years thereafter. Unlike RA No. 6734 and RA No. 9054, RA No. 9333 was not ratified in a plebiscite. Pursuant to RA No. 9333, the next ARMM regional elections should have been held on August 8, 2011. COMELEC had begun preparations for these elections and had accepted certificates of candidacies for the various regional offices to be elected. But on June 30, 2011, RA No. 10153 was enacted, resetting the ARMM elections to May 2013, to coincide with the regular national and local elections of the country. RA No. 10153 originated in the House of Representatives as House Bill (HB) No. 4146, seeking the postponement of the ARMM elections scheduled on August 8, 2011. On March 22, 2011, the House of Representatives passed HB No. 4146, with one hundred ninety one (191) Members voting in its favor. After the Senate received HB No. 4146, it adopted its own version, Senate Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen (13) Senators voted favorably for its passage. On June 7, 2011, the House of Representative concurred with the Senate amendments, and on June 30, 2011, the President signed RA No. 10153 into law. As mentioned, the early challenge to RA No. 10153 came through a petition filed with this Court G.R. No. 1962713 - assailing the constitutionality of both HB No. 4146 and SB No. 2756, and challenging the validity of RA No. 9333 as well for noncompliance with the constitutional plebiscite requirement. Thereafter, petitioner Basari Mapupuno in G.R. No. 196305 filed another petition4 also assailing the validity of RA No. 9333. With the enactment into law of RA No. 10153, the COMELEC stopped its preparations for the ARMM elections. The law gave rise as well to the filing of the following petitions against its constitutionality:

13

a) Petition for Certiorari and Prohibition5 filed by Rep. Edcel Lagman as a member of the House of Representatives against Paquito Ochoa, Jr. (in his capacity as the Executive Secretary) and the COMELEC, docketed as G.R. No. 197221; b) Petition for Mandamus and Prohibition6 filed by Atty. Romulo Macalintal as a taxpayer against the COMELEC, docketed as G.R. No. 197282; c) Petition for Certiorari and Mandamus, Injunction and Preliminary Injunction7 filed by Louis "Barok" Biraogo against the COMELEC and Executive Secretary Paquito N. Ochoa, Jr., docketed as G.R. No. 197392; and d) Petition for Certiorari and Mandamus8 filed by Jacinto Paras as a member of the House of Representatives against Executive Secretary Paquito Ochoa, Jr. and the COMELEC, docketed as G.R. No. 197454. Petitioners Alamarim Centi Tillah and Datu Casan Conding Cana as registered voters from the ARMM, with the Partido Demokratiko Pilipino Lakas ng Bayan (a political party with candidates in the ARMM regional elections scheduled for August 8, 2011), also filed a Petition for Prohibition and Mandamus9 against the COMELEC, docketed as G.R. No. 197280, to assail the constitutionality of RA No. 9140, RA No. 9333 and RA No. 10153. Subsequently, Anak Mindanao Party-List, Minority Rights Forum Philippines, Inc. and Bangsamoro Solidarity Movement filed their own Motion for Leave to Admit their Motion for Intervention and Comment-in-Intervention dated July 18, 2011. On July 26, 2011, the Court granted the motion. In the same Resolution, the Court ordered the consolidation of all the petitions relating to the constitutionality of HB No. 4146, SB No. 2756, RA No. 9333, and RA No. 10153. Oral arguments were held on August 9, 2011 and August 16, 2011. Thereafter, the parties were instructed to submit their respective memoranda within twenty (20) days. On September 13, 2011, the Court issued a temporary restraining order enjoining the implementation of RA No. 10153 and ordering the incumbent elective officials of ARMM to continue to perform their functions should these cases not be decided by the end of their term on September 30, 2011. The Arguments The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert that these laws amend RA No. 9054 and thus, have to comply with the supermajority vote and plebiscite requirements prescribed under Sections 1 and 3, Article XVII of RA No. 9094 in order to become effective. The petitions assailing RA No. 10153 further maintain that it is unconstitutional for its failure to comply with the three-reading requirement of Section 26(2), Article VI of the Constitution. Also cited as grounds are the alleged violations of the right of suffrage of the people of ARMM, as well as the failure to adhere to the "elective and representative" character of the executive and legislative departments of the ARMM. Lastly, the petitioners challenged the grant to the President of the power to appoint OICs to undertake the functions of the elective ARMM officials until the officials elected under the May 2013 regular elections shall have assumed office. Corrolarily, they also argue that the power of appointment also gave the President the power of control over the ARMM, in complete violation of Section 16, Article X of the Constitution.

The Issues From the parties submissions, the following issues were recognized and argued by the parties in the oral arguments of August 9 and 16, 2011: I. Whether the 1987 Constitution mandates the synchronization of elections II. Whether the passage of RA No. 10153 violates Section 26(2), Article VI of the 1987 Constitution III. Whether the passage of RA No. 10153 requires a supermajority vote and plebiscite A. Does the postponement of the ARMM regular elections constitute an amendment to Section 7, Article XVIII of RA No. 9054? B. Does the requirement of a supermajority vote for amendments or revisions to RA No. 9054 violate Section 1 and Section 16(2), Article VI of the 1987 Constitution and the corollary doctrine on irrepealable laws? C. Does the requirement of a plebiscite apply only in the creation of autonomous regions under paragraph 2, Section 18, Article X of the 1987 Constitution? IV. Whether RA No. 10153 violates the autonomy granted to the ARMM V. Whether the grant of the power to appoint OICs violates: A. Section 15, Article X of the 1987 Constitution B. Section 16, Article X of the 1987 Constitution C. Section 18, Article X of the 1987 Constitution VI. Whether the proposal to hold special elections is constitutional and legal. We shall discuss these issues in the order they are presented above. OUR RULING We resolve to DISMISS the petitions and thereby UPHOLD the constitutionality of RA No. 10153 in toto. I. Synchronization as a recognized constitutional mandate The respondent Office of the Solicitor General (OSG) argues that the Constitution mandates synchronization, and in support of this position, cites Sections 1, 2 and 5, Article XVIII (Transitory Provisions) of the 1987 Constitution, which provides: Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987. The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area.

14

Section 2. The Senators, Members of the House of Representatives and the local officials first elected under this Constitution shall serve until noon of June 30, 1992. Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes shall serve for six year and the remaining twelve for three years. xxx Section 5. The six-year term of the incumbent President and Vice President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for President and Vice-President under this Constitution shall be held on the second Monday of May, 1992. We agree with this position. While the Constitution does not expressly state that Congress has to synchronize national and local elections, the clear intent towards this objective can be gleaned from the Transitory Provisions (Article XVIII) of the Constitution,10 which show the extent to which the Constitutional Commission, by deliberately making adjustments to the terms of the incumbent officials, sought to attain synchronization of elections.11 The objective behind setting a common termination date for all elective officials, done among others through the shortening the terms of the twelve winning senators with the least number of votes, is to synchronize the holding of all future elections whether national or local to once every three years.12 This intention finds full support in the discussions during the Constitutional Commission deliberations.13 These Constitutional Commission exchanges, read with the provisions of the Transitory Provisions of the Constitution, all serve as patent indicators of the constitutional mandate to hold synchronized national and local elections, starting the second Monday of May, 1992 and for all the following elections. This Court was not left behind in recognizing the synchronization of the national and local elections as a constitutional mandate. In Osmea v. Commission on Elections,14 we explained: It is clear from the aforequoted provisions of the 1987 Constitution that the terms of office of Senators, Members of the House of Representatives, the local officials, the President and the Vice-President have been synchronized to end on the same hour, date and year noon of June 30, 1992. It is likewise evident from the wording of the above-mentioned Sections that the term of synchronization is used synonymously as the phrase holding simultaneously since this is the precise intent in terminating their Office Tenure on the same day or occasion. This common termination date will synchronize future elections to once every three years (Bernas, the Constitution of the Republic of the Philippines, Vol. II, p. 605). That the election for Senators, Members of the House of Representatives and the local officials (under Sec. 2, Art. XVIII) will have to be synchronized with the election for President and Vice President (under Sec. 5, Art. XVIII) is likewise evident from the x x x records of the proceedings in the Constitutional Commission. [Emphasis supplied.] Although called regional elections, the ARMM elections should be included among the elections to be synchronized as it is a "local" election based on the wording and structure of the Constitution.1avvphil

A basic rule in constitutional construction is that the words used should be understood in the sense that they have in common use and given their ordinary meaning, except when technical terms are employed, in which case the significance thus attached to them prevails.15 As this Court explained in People v. Derilo,16 "[a]s the Constitution is not primarily a lawyers document, its language should be understood in the sense that it may have in common. Its words should be given their ordinary meaning except where technical terms are employed." Understood in its ordinary sense, the word "local" refers to something that primarily serves the needs of a particular limited district, often a community or minor political subdivision.17 Regional elections in the ARMM for the positions of governor, vice-governor and regional assembly representatives obviously fall within this classification, since they pertain to the elected officials who will serve within the limited region of ARMM. From the perspective of the Constitution, autonomous regions are considered one of the forms of local governments, as evident from Article X of the Constitution entitled "Local Government." Autonomous regions are established and discussed under Sections 15 to 21 of this Article the article wholly devoted to Local Government. That an autonomous region is considered a form of local government is also reflected in Section 1, Article X of the Constitution, which provides: Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao, and the Cordilleras as hereinafter provided. Thus, we find the contention that the synchronization mandated by the Constitution does not include the regional elections of the ARMM unmeritorious. We shall refer to synchronization in the course of our discussions below, as this concept permeates the consideration of the various issues posed in this case and must be recalled time and again for its complete resolution. II. The Presidents Certification on the Urgency of RA No. 10153 The petitioners in G.R. No. 197280 also challenge the validity of RA No. 10153 for its alleged failure to comply with Section 26(2), Article VI of the Constitution18 which provides that before bills passed by either the House or the Senate can become laws, they must pass through three readings on separate days. The exception is when the President certifies to the necessity of the bills immediate enactment. The Court, in Tolentino v. Secretary of Finance,19 explained the effect of the Presidents certification of necessity in the following manner: The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. The phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, Section 26[2] qualifies the two stated conditions before a bill can become a law: [i] the bill has passed three readings on separate days and [ii] it has been printed in its final form and distributed three days before it is finally approved. xxx That upon the certification of a bill by the President, the requirement of three readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice. For example, the bill defining the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No. 5440, was passed on second and third readings in the House of Representatives on the same day [May 14, 1968] after the bill had been certified by the President as urgent.

15

In the present case, the records show that the President wrote to the Speaker of the House of Representatives to certify the necessity of the immediate enactment of a law synchronizing the ARMM elections with the national and local elections.20 Following our Tolentino ruling, the Presidents certification exempted both the House and the Senate from having to comply with the three separate readings requirement. On the follow-up contention that no necessity existed for the immediate enactment of these bills since there was no public calamity or emergency that had to be met, again we hark back to our ruling in Tolentino: The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law Art. VII, Section 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, Section 23(2) is subject to judicial review because basic rights of individuals may be of hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review. [Emphasis supplied.] The House of Representatives and the Senate in the exercise of their legislative discretion gave full recognition to the Presidents certification and promptly enacted RA No. 10153. Under the circumstances, nothing short of grave abuse of discretion on the part of the two houses of Congress can justify our intrusion under our power of judicial review.21 The petitioners, however, failed to provide us with any cause or justification for this course of action. Hence, while the judicial department and this Court are not bound by the acceptance of the President's certification by both the House of Representatives and the Senate, prudent exercise of our powers and respect due our co-equal branches of government in matters committed to them by the Constitution, caution a stay of the judicial hand.22 In any case, despite the Presidents certification, the two-fold purpose that underlies the requirement for three readings on separate days of every bill must always be observed to enable our legislators and other parties interested in pending bills to intelligently respond to them. Specifically, the purpose with respect to Members of Congress is: (1) to inform the legislators of the matters they shall vote on and (2) to give them notice that a measure is in progress through the enactment process.23 We find, based on the records of the deliberations on the law, that both advocates and the opponents of the proposed measure had sufficient opportunities to present their views. In this light, no reason exists to nullify RA No. 10153 on the cited ground. III. A. RA No. 9333 and RA No. 10153 are not amendments to RA No. 9054 The effectivity of RA No. 9333 and RA No. 10153 has also been challenged because they did not comply with Sections 1 and 3, Article XVII of RA No. 9054 in amending this law. These provisions require: Section 1. Consistent with the provisions of the Constitution, this Organic Act may be reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately. Section 3. Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision. We find no merit in this contention.

In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No. 9054. As an examination of these laws will show, RA No. 9054 only provides for the schedule of the first ARMM elections and does not fix the date of the regular elections. A need therefore existed for the Congress to fix the date of the subsequent ARMM regular elections, which it did by enacting RA No. 9333 and thereafter, RA No. 10153. Obviously, these subsequent laws RA No. 9333 and RA No. 10153 cannot be considered amendments to RA No. 9054 as they did not change or revise any provision in the latter law; they merely filled in a gap in RA No. 9054 or supplemented the law by providing the date of the subsequent regular elections. This view that Congress thought it best to leave the determination of the date of succeeding ARMM elections to legislative discretion finds support in ARMMs recent history. To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The First Organic Act RA No. 6734 not only did not fix the date of the subsequent elections; it did not even fix the specific date of the first ARMM elections,24 leaving the date to be fixed in another legislative enactment. Consequently, RA No. 7647,25 RA No. 8176,26 RA No. 8746,27 RA No. 8753,28 and RA No. 901229 were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not change or modify any part or provision of RA No. 6734, they were not amendments to this latter law. Consequently, there was no need to submit them to any plebiscite for ratification. The Second Organic Act RA No. 9054 which lapsed into law on March 31, 2001, provided that the first elections would be held on the second Monday of September 2001. Thereafter, Congress passed RA No. 914030to reset the date of the ARMM elections. Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve RA No. 9054. Thereafter, Congress passed RA No. 9333,31 which further reset the date of the ARMM regional elections. Again, this law was not ratified through a plebiscite. From these legislative actions, we see the clear intention of Congress to treat the laws which fix the date of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only acted consistently with this intent when it passed RA No. 10153 without requiring compliance with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054. III. B. Supermajority voting requirement unconstitutional for giving RA No. 9054 the character of an irrepealable law Even assuming that RA No. 9333 and RA No. 10153 did in fact amend RA No. 9054, the supermajority (2/3) voting requirement required under Section 1, Article XVII of RA No. 905432 has to be struck down for giving RA No. 9054 the character of an irrepealable law by requiring more than what the Constitution demands. Section 16(2), Article VI of the Constitution provides that a "majority of each House shall constitute a quorum to do business." In other words, as long as majority of the members of the House of Representatives or the Senate are present, these bodies have the quorum needed to conduct business and hold session. Within a quorum, a vote of majority is generally sufficient to enact laws or approve acts. In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no less than two-thirds (2/3) of the Members of the House of Representatives and of the Senate, voting separately, in order to effectively amend RA No. 9054. Clearly, this 2/3 voting requirement is higher than what the Constitution requires for the passage of bills, and served to restrain the plenary powers of Congress to amend, revise or repeal the laws it had passed. The Courts pronouncement in City of Davao v. GSIS33 on this subject best explains the basis and reason for the unconstitutionality:

16

Moreover, it would be noxious anathema to democratic principles for a legislative body to have the ability to bind the actions of future legislative body, considering that both assemblies are regarded with equal footing, exercising as they do the same plenary powers. Perpetual infallibility is not one of the attributes desired in a legislative body, and a legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of omniscience. xxx A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes.34 (Emphasis ours.) Thus, while a supermajority is not a total ban against a repeal, it is a limitation in excess of what the Constitution requires on the passage of bills and is constitutionally obnoxious because it significantly constricts the future legislators room for action and flexibility. III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the plebiscite requirement found in Section 18, Article X of the Constitution The requirements of RA No. 9054 not only required an unwarranted supermajority, but enlarged as well the plebiscite requirement, as embodied in its Section 3, Article XVII of that Act. As we did on the supermajority requirement, we find the enlargement of the plebiscite requirement required under Section 18, Article X of the Constitution to be excessive to point of absurdity and, hence, a violation of the Constitution. Section 18, Article X of the Constitution states that the plebiscite is required only for the creation of autonomous regions and for determining which provinces, cities and geographic areas will be included in the autonomous regions. While the settled rule is that amendments to the Organic Act have to comply with the plebiscite requirement in order to become effective,35 questions on the extent of the matters requiring ratification may unavoidably arise because of the seemingly general terms of the Constitution and the obvious absurdity that would result if a plebiscite were to be required for every statutory amendment. Section 18, Article X of the Constitution plainly states that "The creation of the autonomous region shall be effective when approved by the majority of the votes case by the constituent units in a plebiscite called for the purpose." With these wordings as standard, we interpret the requirement to mean that only amendments to, or revisions of, the Organic Act constitutionallyessential to the creation of autonomous regions i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in the Organic Act require ratification through a plebiscite. These amendments to the Organic Act are those that relate to: (a) the basic structure of the regional government; (b) the regions judicial system, i.e., the special courts with personal, family, and property law jurisdiction; and, (c) the grant and extent of the legislative powers constitutionally conceded to the regional government under Section 20, Article X of the Constitution.36 The date of the ARMM elections does not fall under any of the matters that the Constitution specifically mandated Congress to provide for in the Organic Act. Therefore, even assuming that the

supermajority votes and the plebiscite requirements are valid, any change in the date of elections cannot be construed as a substantial amendment of the Organic Act that would require compliance with these requirements. IV. The synchronization issue As we discussed above, synchronization of national and local elections is a constitutional mandate that Congress must provide for and this synchronization must include the ARMM elections. On this point, an existing law in fact already exists RA No. 7166 as the forerunner of the current RA No. 10153. RA No. 7166 already provides for the synchronization of local elections with the national and congressional elections. Thus, what RA No. 10153 provides is an old matter for local governments (with the exception of barangay and Sanggunian Kabataan elections where the terms are not constitutionally provided) and is technically a reiteration of what is already reflected in the law, given that regional elections are in reality local elections by express constitutional recognition.37 To achieve synchronization, Congress necessarily has to reconcile the schedule of the ARMMs regular elections (which should have been held in August 2011 based on RA No. 9333) with the fixed schedule of the national and local elections (fixed by RA No. 7166 to be held in May 2013). During the oral arguments, the Court identified the three options open to Congress in order to resolve this problem. These options are: (1) to allow the elective officials in the ARMM to remain in office in a hold over capacity, pursuant to Section 7(1), Article VII of RA No. 9054, until those elected in the synchronized elections assume office;38 (2) to hold special elections in the ARMM, with the terms of those elected to expire when those elected in the synchronized elections assume office; or (3) to authorize the President to appoint OICs, pursuant to Section 3 of RA No. 10153, also until those elected in the synchronized elections assume office. As will be abundantly clear in the discussion below, Congress, in choosing to grant the President the power to appoint OICs, chose the correct option and passed RA No. 10153 as a completely valid law. V. The Constitutionality of RA No. 10153 A. Basic Underlying Premises To fully appreciate the available options, certain underlying material premises must be fully understood. The first is the extent of the powers of Congress to legislate; the second is the constitutional mandate for the synchronization of elections; and the third is on the concept of autonomy as recognized and established under the 1987 Constitution. The grant of legislative power to Congress is broad, general and comprehensive.39 The legislative body possesses plenary power for all purposes of civil government.40 Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere.41 Except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to all matters of general concern or common interest.42 The constitutional limitations on legislative power are either express or implied. The express limitations are generally provided in some provisions of the Declaration of Principles and State Policies (Article 2) and in the provisions Bill of Rights (Article 3). Other constitutional provisions (such as the initiative and referendum clause of Article 6, Sections 1 and 32, and the autonomy provisions of Article X) provide their own express limitations. The implied limitations are found "in the evident purpose which was in view and the circumstances and historical events which led to the enactment of the particular provision as a part of organic law."43

17

The constitutional provisions on autonomy specifically, Sections 15 to 21 of Article X of the Constitution constitute express limitations on legislative power as they define autonomy, its requirements and its parameters, thus limiting what is otherwise the unlimited power of Congress to legislate on the governance of the autonomous region. Of particular relevance to the issues of the present case are the limitations posed by the prescribed basic structure of government i.e., that the government must have an executive department and a legislative assembly, both of which must be elective and representative of the constituent political units; national government, too, must not encroach on the legislative powers granted under Section 20, Article X. Conversely and as expressly reflected in Section 17, Article X, "all powers and functions not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government." The totality of Sections 15 to 21 of Article X should likewise serve as a standard that Congress must observe in dealing with legislation touching on the affairs of the autonomous regions. The terms of these sections leave no doubt on what the Constitution intends the idea of self-rule or self-government, in particular, the power to legislate on a wide array of social, economic and administrative matters. But equally clear under these provisions are the permeating principles of national sovereignty and the territorial integrity of the Republic, as expressed in the abovequoted Section 17 and in Section 15.44 In other words, the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium et imperio45 in the relationship between the national and the regional governments. In relation with synchronization, both autonomy and the synchronization of national and local elections are recognized and established constitutional mandates, with one being as compelling as the other. If their compelling force differs at all, the difference is in their coverage; synchronization operates on and affects the whole country, while regional autonomy as the term suggests directly carries a narrower regional effect although its national effect cannot be discounted. These underlying basic concepts characterize the powers and limitations of Congress when it acted on RA No. 10153. To succinctly describe the legal situation that faced Congress then, its decision to synchronize the regional elections with the national, congressional and all other local elections (save for barangay and sangguniang kabataan elections) left it with the problem of how to provide the ARMM with governance in the intervening period between the expiration of the term of those elected in August 2008 and the assumption to office twenty-one (21) months away of those who will win in the synchronized elections on May 13, 2013. The problem, in other words, was for interim measures for this period, consistent with the terms of the Constitution and its established supporting jurisprudence, and with the respect due to the concept of autonomy. Interim measures, to be sure, is not a strange phenomenon in the Philippine legal landscape. The Constitutions Transitory Provisions themselves collectively provide measures for transition from the old constitution to the new46and for the introduction of new concepts.47 As previously mentioned, the adjustment of elective terms and of elections towards the goal of synchronization first transpired under the Transitory Provisions. The adjustments, however, failed to look far enough or deeply enough, particularly into the problems that synchronizing regional autonomous elections would entail; thus, the present problem is with us today. The creation of local government units also represents instances when interim measures are required. In the creation of Quezon del Sur48 and Dinagat Islands,49 the creating statutes authorized the President to appoint an interim governor, vice-governor and members of the sangguniang panlalawigan although these positions are essentially elective in character; the appointive officials were to serve until a new set of provincial officials shall have been elected and qualified.50 A similar authority to appoint

is provided in the transition of a local government from a subprovince to a province.51 In all these, the need for interim measures is dictated by necessity; out-of-the-way arrangements and approaches were adopted or used in order to adjust to the goal or objective in sight in a manner that does not do violence to the Constitution and to reasonably accepted norms. Under these limitations, the choice of measures was a question of wisdom left to congressional discretion. To return to the underlying basic concepts, these concepts shall serve as the guideposts and markers in our discussion of the options available to Congress to address the problems brought about by the synchronization of the ARMM elections, properly understood as interim measures that Congress had to provide. The proper understanding of the options as interim measures assume prime materiality as it is under these terms that the passage of RA No. 10153 should be measured, i.e., given the constitutional objective of synchronization that cannot legally be faulted, did Congress gravely abuse its discretion or violate the Constitution when it addressed through RA No. 10153 the concomitant problems that the adjustment of elections necessarily brought with it? B. Holdover Option is Unconstitutional We rule out the first option holdover for those who were elected in executive and legislative positions in the ARMM during the 2008-2011 term as an option that Congress could have chosen because a holdover violates Section 8, Article X of the Constitution. This provision states: Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. [emphases ours] Since elective ARMM officials are local officials, they are covered and bound by the three-year term limit prescribed by the Constitution; they cannot extend their term through a holdover. As this Court put in Osmea v. COMELEC:52 It is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify within the time. In American Jurisprudence it has been stated as follows: "It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as limited by the Constitution." [Emphasis ours.] Independently of the Osmea ruling, the primacy of the Constitution as the supreme law of the land dictates that where the Constitution has itself made a determination or given its mandate, then the matters so determined or mandated should be respected until the Constitution itself is changed by amendment or repeal through the applicable constitutional process. A necessary corollary is that none of the three branches of government can deviate from the constitutional mandate except only as the Constitution itself may allow.53 If at all, Congress may only pass legislation filing in details to fully operationalize the constitutional command or to implement it by legislation if it is non-self-executing; this Court, on the other hand, may only interpret the mandate if an interpretation is appropriate and called for.54

18

In the case of the terms of local officials, their term has been fixed clearly and unequivocally, allowing no room for any implementing legislation with respect to the fixed term itself and no vagueness that would allow an interpretation from this Court. Thus, the term of three years for local officials should stay at three (3) years as fixed by the Constitution and cannot be extended by holdover by Congress. If it will be claimed that the holdover period is effectively another term mandated by Congress, the net result is for Congress to create a new term and to appoint the occupant for the new term. This view like the extension of the elective term is constitutionally infirm because Congress cannot do indirectly what it cannot do directly, i.e., to act in a way that would effectively extend the term of the incumbents. Indeed, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.55 Congress cannot also create a new term and effectively appoint the occupant of the position for the new term. This is effectively an act of appointment by Congress and an unconstitutional intrusion into the constitutional appointment power of the President.56 Hence, holdover whichever way it is viewed is a constitutionally infirm option that Congress could not have undertaken. Jurisprudence, of course, is not without examples of cases where the question of holdover was brought before, and given the imprimatur of approval by, this Court. The present case though differs significantly from past cases with contrary rulings, particularly from Sambarani v. COMELEC,57 Adap v. Comelec,58 and Montesclaros v. Comelec,59 where the Court ruled that the elective officials could hold on to their positions in a hold over capacity. All these past cases refer to elective barangay or sangguniang kabataan officials whose terms of office are not explicitly provided for in the Constitution; the present case, on the other hand, refers to local elective officials the ARMM Governor, the ARMM Vice-Governor, and the members of the Regional Legislative Assembly whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution. Because of their constitutionally limited term, Congress cannot legislate an extension beyond the term for which they were originally elected. Even assuming that holdover is constitutionally permissible, and there had been statutory basis for it (namely Section 7, Article VII of RA No. 9054) in the past,60 we have to remember that the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident.61 Congress, in passing RA No. 10153, made it explicitly clear that it had the intention of suppressing the holdover rule that prevailed under RA No. 9054 by completely removing this provision. The deletion is a policy decision that is wholly within the discretion of Congress to make in the exercise of its plenary legislative powers; this Court cannot pass upon questions of wisdom, justice or expediency of legislation,62 except where an attendant unconstitutionality or grave abuse of discretion results. C. The COMELEC has no authority to order special elections Another option proposed by the petitioner in G.R. No. 197282 is for this Court to compel COMELEC to immediately conduct special elections pursuant to Section 5 and 6 of Batas Pambansa Bilang (BP) 881. The power to fix the date of elections is essentially legislative in nature, as evident from, and exemplified by, the following provisions of the Constitution: Section 8, Article VI, applicable to the legislature, provides: Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. [Emphasis ours]

Section 4(3), Article VII, with the same tenor but applicable solely to the President and Vice-President, states: xxxx Section 4. xxx Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. [Emphasis ours] while Section 3, Article X, on local government, provides: Section 3. The Congress shall enact a local government code which shall provide for xxx the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials[.] [Emphases ours] These provisions support the conclusion that no elections may be held on any other date for the positions of President, Vice President, Members of Congress and local officials, except when so provided by another Act of Congress, or upon orders of a body or officer to whom Congress may have delegated either the power or the authority to ascertain or fill in the details in the execution of that power.63 Notably, Congress has acted on the ARMM elections by postponing the scheduled August 2011 elections and setting another date May 13, 2011 for regional elections synchronized with the presidential, congressional and other local elections. By so doing, Congress itself has made a policy decision in the exercise of its legislative wisdom that it shall not call special elections as an adjustment measure in synchronizing the ARMM elections with the other elections. After Congress has so acted, neither the Executive nor the Judiciary can act to the contrary by ordering special elections instead at the call of the COMELEC. This Court, particularly, cannot make this call without thereby supplanting the legislative decision and effectively legislating. To be sure, the Court is not without the power to declare an act of Congress null and void for being unconstitutional or for having been exercised in grave abuse of discretion.64 But our power rests on very narrow ground and is merely to annul a contravening act of Congress; it is not to supplant the decision of Congress nor to mandate what Congress itself should have done in the exercise of its legislative powers. Thus, contrary to what the petition in G.R. No. 197282 urges, we cannot compel COMELEC to call for special elections. Furthermore, we have to bear in mind that the constitutional power of the COMELEC, in contrast with the power of Congress to call for, and to set the date of, elections, is limited to enforcing and administering all laws and regulations relative to the conduct of an election.65 Statutorily, COMELEC has no power to call for the holding of special elections unless pursuant to a specific statutory grant. True, Congress did grant, via Sections 5 and 6 of BP 881, COMELEC with the power to postpone elections to another date. However, this power is limited to, and can only be exercised within, the specific terms and circumstances provided for in the law. We quote: Section 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect. Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on

19

the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [Emphasis ours] A close reading of Section 5 of BP 881 reveals that it is meant to address instances where elections have already been scheduled to take place but have to be postponed because of (a) violence, (b) terrorism, (c) loss or destruction of election paraphernalia or records, (d) force majeure, and (e) other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision. Under the principle of ejusdem generis, the term "analogous causes" will be restricted to those unforeseen or unexpected events that prevent the holding of the scheduled elections. These "analogous causes" are further defined by the phrase "of such nature that the holding of a free, orderly and honest election should become impossible." Similarly, Section 6 of BP 881 applies only to those situations where elections have already been scheduled but do not take place because of (a) force majeure, (b) violence, (c) terrorism, (d) fraud, or (e) other analogous causes the election in any polling place has not been held on the date fixed, or had been suspendedbefore the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect. As in Section 5 of BP 881, Section 6 addresses instances where the elections do not occur or had to be suspended because of unexpected and unforeseen circumstances. In the present case, the postponement of the ARMM elections is by law i.e., by congressional policy and is pursuant to the constitutional mandate of synchronization of national and local elections. By no stretch of the imagination can these reasons be given the same character as the circumstances contemplated by Section 5 or Section 6 of BP 881, which all pertain to extralegal causes that obstruct the holding of elections. Courts, to be sure, cannot enlarge the scope of a statute under the guise of interpretation, nor include situations not provided nor intended by the lawmakers.66 Clearly, neither Section 5 nor Section 6 of BP 881 can apply to the present case and this Court has absolutely no legal basis to compel the COMELEC to hold special elections. D. The Court has no power to shorten the terms of elective officials Even assuming that it is legally permissible for the Court to compel the COMELEC to hold special elections, no legal basis likewise exists to rule that the newly elected ARMM officials shall hold office only until the ARMM officials elected in the synchronized elections shall have assumed office. In the first place, the Court is not empowered to adjust the terms of elective officials. Based on the Constitution, the power to fix the term of office of elective officials, which can be exercised only in the case of barangay officials,67 is specifically given to Congress. Even Congress itself may be denied such power, as shown when the Constitution shortened the terms of twelve Senators obtaining the least votes,68 and extended the terms of the President and the Vice-President69 in order to synchronize elections; Congress was not granted this same power. The settled rule is that terms fixed by the Constitution cannot be changed by mere statute.70 More particularly, not even Congress and certainly not this Court, has the authority to fix the terms of elective local officials in the ARMM for less, or more, than the

constitutionally mandated three years71 as this tinkering would directly contravene Section 8, Article X of the Constitution as we ruled in Osmena. Thus, in the same way that the term of elective ARMM officials cannot be extended through a holdover, the term cannot be shortened by putting an expiration date earlier than the three (3) years that the Constitution itself commands. This is what will happen a term of less than two years if a call for special elections shall prevail. In sum, while synchronization is achieved, the result is at the cost of a violation of an express provision of the Constitution. Neither we nor Congress can opt to shorten the tenure of those officials to be elected in the ARMM elections instead of acting on their term (where the "term" means the time during which the officer may claim to hold office as of right and fixes the interval after which the several incumbents shall succeed one another, while the "tenure" represents the term during which the incumbent actually holds the office).72 As with the fixing of the elective term, neither Congress nor the Court has any legal basis to shorten the tenure of elective ARMM officials. They would commit an unconstitutional act and gravely abuse their discretion if they do so. E. The Presidents Power to Appoint OICs The above considerations leave only Congress chosen interim measure RA No. 10153 and the appointment by the President of OICs to govern the ARMM during the pre-synchronization period pursuant to Sections 3, 4 and 5 of this law as the only measure that Congress can make. This choice itself, however, should be examined for any attendant constitutional infirmity. At the outset, the power to appoint is essentially executive in nature, and the limitations on or qualifications to the exercise of this power should be strictly construed; these limitations or qualifications must be clearly stated in order to be recognized.73 The appointing power is embodied in Section 16, Article VII of the Constitution, which states: Section 16. 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 departments, agencies, commissions, or boards. [emphasis ours] This provision classifies into four groups the officers that the President can appoint. These are: First, the heads of the executive departments; ambassadors; other public ministers and consuls; officers of the Armed Forces of the Philippines, from the rank of colonel or naval captain; and other officers whose appointments are vested in the President in this Constitution; Second, all other officers of the government whose appointments are not otherwise provided for by law; Third, those whom the President may be authorized by law to appoint; and Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.74 Since the Presidents authority to appoint OICs emanates from RA No. 10153, it falls under the third group of officials that the President can appoint pursuant to Section 16, Article VII of the

20

Constitution. Thus, the assailed law facially rests on clear constitutional basis. If at all, the gravest challenge posed by the petitions to the authority to appoint OICs under Section 3 of RA No. 10153 is the assertion that the Constitution requires that the ARMM executive and legislative officials to be "elective and representative of the constituent political units." This requirement indeed is an express limitation whose non-observance in the assailed law leaves the appointment of OICs constitutionally defective. After fully examining the issue, we hold that this alleged constitutional problem is more apparent than real and becomes very real only if RA No. 10153 were to be mistakenly read as a law that changes the elective and representative character of ARMM positions. RA No. 10153, however, does not in any way amend what the organic law of the ARMM (RA No. 9054) sets outs in terms of structure of governance. What RA No. 10153 in fact only does is to "appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office." This power is far different from appointing elective ARMM officials for the abbreviated term ending on the assumption to office of the officials elected in the May 2013 elections. As we have already established in our discussion of the supermajority and plebiscite requirements, the legal reality is that RA No. 10153 did not amend RA No. 9054. RA No. 10153, in fact, provides only for synchronization of elections and for the interim measures that must in the meanwhile prevail. And this is how RA No. 10153 should be read in the manner it was written and based on its unambiguous facial terms.75 Aside from its order for synchronization, it is purely and simply an interim measure responding to the adjustments that the synchronization requires. Thus, the appropriate question to ask is whether the interim measure is an unreasonable move for Congress to adopt, given the legal situation that the synchronization unavoidably brought with it. In more concrete terms and based on the above considerations, given the plain unconstitutionality of providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected ARMM officials, is the choice of the Presidents power to appoint for a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the Constitution an unconstitutional or unreasonable choice for Congress to make? Admittedly, the grant of the power to the President under other situations or where the power of appointment would extend beyond the adjustment period for synchronization would be to foster a government that is not "democratic and republican." For then, the peoples right to choose the leaders to govern them may be said to be systemically withdrawn to the point of fostering an undemocratic regime. This is the grant that would frontally breach the "elective and representative" governance requirement of Section 18, Article X of the Constitution. But this conclusion would not be true under the very limited circumstances contemplated in RA No. 10153 where the period is fixed and, more importantly, the terms of governance both under Section 18, Article X of the Constitution and RA No. 9054 will not systemically be touched nor affected at all. To repeat what has previously been said, RA No. 9054 will govern unchanged and continuously, with full effect in accordance with the Constitution, save only for the interim and temporary measures that synchronization of elections requires. Viewed from another perspective, synchronization will temporarily disrupt the election process in a local community, the ARMM, as well as the communitys choice of leaders, but this will take place under a situation of necessity and as an interim measure in the manner that interim measures have been adopted and used in the creation of local government units76 and the adjustments of sub-provinces to the status of provinces.77 These measures, too, are used in light of the wider national demand for

the synchronization of elections (considered vis--vis the regional interests involved). The adoption of these measures, in other words, is no different from the exercise by Congress of the inherent police power of the State, where one of the essential tests is the reasonableness of the interim measure taken in light of the given circumstances. Furthermore, the "representative" character of the chosen leaders need not necessarily be affected by the appointment of OICs as this requirement is really a function of the appointment process; only the "elective" aspect shall be supplanted by the appointment of OICs. In this regard, RA No. 10153 significantly seeks to address concerns arising from the appointments by providing, under Sections 3, 4 and 5 of the assailed law, concrete terms in the Appointment of OIC, the Manner and Procedure of Appointing OICs, and their Qualifications. Based on these considerations, we hold that RA No. 10153 viewed in its proper context is a law that is not violative of the Constitution (specifically, its autonomy provisions), and one that is reasonable as well under the circumstances. VI. Other Constitutional Concerns Outside of the above concerns, it has been argued during the oral arguments that upholding the constitutionality of RA No. 10153 would set a dangerous precedent of giving the President the power to cancel elections anywhere in the country, thus allowing him to replace elective officials with OICs. This claim apparently misunderstands that an across-the-board cancellation of elections is a matter for Congress, not for the President, to address. It is a power that falls within the powers of Congress in the exercise of its legislative powers. Even Congress, as discussed above, is limited in what it can legislatively undertake with respect to elections. If RA No. 10153 cancelled the regular August 2011 elections, it was for a very specific and limited purpose the synchronization of elections. It was a temporary means to a lasting end the synchronization of elections. Thus, RA No. 10153 and the support that the Court gives this legislation are likewise clear and specific, and cannot be transferred or applied to any other cause for the cancellation of elections. Any other localized cancellation of elections and call for special elections can occur only in accordance with the power already delegated by Congress to the COMELEC, as above discussed. Given that the incumbent ARMM elective officials cannot continue to act in a holdover capacity upon the expiration of their terms, and this Court cannot compel the COMELEC to conduct special elections, the Court now has to deal with the dilemma of a vacuum in governance in the ARMM. To emphasize the dire situation a vacuum brings, it should not be forgotten that a period of 21 months or close to 2 years intervenes from the time that the incumbent ARMM elective officials terms expired and the time the new ARMM elective officials begin their terms in 2013. As the lessons of our Mindanao history past and current teach us, many developments, some of them critical and adverse, can transpire in the countrys Muslim areas in this span of time in the way they transpired in the past.78 Thus, it would be reckless to assume that the presence of an acting ARMM Governor, an acting ViceGovernor and a fully functioning Regional Legislative Assembly can be done away with even temporarily. To our mind, the appointment of OICs under the present circumstances is an absolute necessity. Significantly, the grant to the President of the power to appoint OICs to undertake the functions of the elective members of the Regional Legislative Assembly is neither novel nor innovative. We hark back to our earlier pronouncement in Menzon v. Petilla, etc., et al.:79

21

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 is, 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.80 (Emphasis ours.) As in Menzon, leaving the positions of ARMM Governor, Vice Governor, and members of the Regional Legislative Assembly vacant for 21 months, or almost 2 years, would clearly cause disruptions and delays in the delivery of basic services to the people, in the proper management of the affairs of the regional government, and in responding to critical developments that may arise. When viewed in this context, allowing the President in the exercise of his constitutionally-recognized appointment power to appoint OICs is, in our judgment, a reasonable measure to take. B. Autonomy in the ARMM It is further argued that while synchronization may be constitutionally mandated, it cannot be used to defeat or to impede the autonomy that the Constitution granted to the ARMM. Phrased in this manner, one would presume that there exists a conflict between two recognized Constitutional mandates synchronization and regional autonomy such that it is necessary to choose one over the other. We find this to be an erroneous approach that violates a basic principle in constitutional construction ut magis valeat quam pereat: that the Constitution is to be interpreted as a whole,81 and one mandate should not be given importance over the other except where the primacy of one over the other is clear.82 We refer to the Courts declaration in Ang-Angco v. Castillo, et al.,83 thus: A provision of the constitution should not be construed in isolation from the rest. Rather, the constitution must be interpreted as a whole, and apparently, conflicting provisions should be reconciled and harmonized in a manner that may give to all of them full force and effect. [Emphasis supplied.] Synchronization is an interest that is as constitutionally entrenched as regional autonomy. They are interests that this Court should reconcile and give effect to, in the way that Congress did in RA No. 10153 which provides the measure to transit to synchronized regional elections with the least disturbance on the interests that must be respected. Particularly, regional autonomy will be respected instead of being sidelined, as the law does not in any way alter, change or modify its governing features, except in a very temporary manner and only as necessitated by the attendant circumstances. Elsewhere, it has also been argued that the ARMM elections should not be synchronized with the national and local elections in order to maintain the autonomy of the ARMM and insulate its

own electoral processes from the rough and tumble of nationwide and local elections. This argument leaves us far from convinced of its merits. As heretofore mentioned and discussed, while autonomous regions are granted political autonomy, the framers of the Constitution never equated autonomy with independence. The ARMM as a regional entity thus continues to operate within the larger framework of the State and is still subject to the national policies set by the national government, save only for those specific areas reserved by the Constitution for regional autonomous determination. As reflected during the constitutional deliberations of the provisions on autonomous regions: Mr. Bennagen. xxx We do not see here a complete separation from the central government, but rather an efficient working relationship between the autonomous region and the central government. We see this as an effective partnership, not a separation. Mr. Romulo. Therefore, complete autonomy is not really thought of as complete independence. Mr. Ople. We define it as a measure of self-government within the larger political framework of the nation.84[Emphasis supplied.] This exchange of course is fully and expressly reflected in the above-quoted Section 17, Article X of the Constitution, and by the express reservation under Section 1 of the same Article that autonomy shall be "within the framework of this Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines." Interestingly, the framers of the Constitution initially proposed to remove Section 17 of Article X, believing it to be unnecessary in light of the enumeration of powers granted to autonomous regions in Section 20, Article X of the Constitution. Upon further reflection, the framers decided to reinstate the provision in order to "make it clear, once and for all, that these are the limits of the powers of the autonomous government. Those not enumerated are actually to be exercised by the national government[.]"85 Of note is the Courts pronouncement in Pimentel, Jr. v. Hon. Aguirre86 which we quote: Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development. But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the entire country still lies in the President and Congress. [Emphasis ours.] In other words, the autonomy granted to the ARMM cannot be invoked to defeat national policies and concerns. Since the synchronization of elections is not just a regional concern but a national one, the ARMM is subject to it; the regional autonomy granted to the ARMM cannot be used to exempt the region from having to act in accordance with a national policy mandated by no less than the Constitution. Conclusion Congress acted within its powers and pursuant to a constitutional mandate the synchronization of national and local elections when it enacted RA No. 10153. This Court cannot question the manner by which Congress undertook this task; the Judiciary does not and cannot pass upon questions of wisdom, justice or expediency of legislation.87 As judges, we can only interpret and

22

apply the law and, despite our doubts about its wisdom, cannot repeal or amend it.88 Nor can the Court presume to dictate the means by which Congress should address what is essentially a legislative problem. It is not within the Courts power to enlarge or abridge laws; otherwise, the Court will be guilty of usurping the exclusive prerogative of Congress.89 The petitioners, in asking this Court to compel COMELEC to hold special elections despite its lack of authority to do so, are essentially asking us to venture into the realm of judicial legislation, which is abhorrent to one of the most basic principles of a republican and democratic government the separation of powers. The petitioners allege, too, that we should act because Congress acted with grave abuse of discretion in enacting RA No. 10153. Grave abuse of discretion is such capricious and whimsical exercise of judgment that is patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of the law as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.90 We find that Congress, in passing RA No. 10153, acted strictly within its constitutional mandate. Given an array of choices, it acted within due constitutional bounds and with marked reasonableness in light of the necessary adjustments that synchronization demands. Congress, therefore, cannot be accused of any evasion of a positive duty or of a refusal to perform its duty. We thus find no reason to accord merit to the petitioners claims of grave abuse of discretion. On the general claim that RA No. 10153 is unconstitutional, we can only reiterate the established rule that every statute is presumed valid.91 Congress, thus, has in its favor the presumption of constitutionality of its acts, and the party challenging the validity of a statute has the onerous task of rebutting this presumption.92 Any reasonable doubt about the validity of the law should be resolved in favor of its constitutionality.93 As this Court declared inGarcia v. Executive Secretary:94 The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted.95 [Emphasis ours.] Given the failure of the petitioners to rebut the presumption of constitutionality in favor of RA No. 10153, we must support and confirm its validity. WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We likewise LIFT the temporary restraining order we issued in our Resolution of September 13, 2011. No costs. SO ORDERED.

G.R. No. 139554

July 21, 2006

ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and FREDDIE GARCIA, petitioners, vs. BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE POTENCIANO, and DOREEN FERNANDEZ, respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x G.R. No. 139565 July 21, 2006 BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE POTENCIANO, and DOREEN FERNANDEZ, petitioners, vs. ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and FREDDIE GARCIA, respondents. DECISION CARPIO, J.: Presidential Decree No. 15 (PD 15) created the Cultural Center of the Philippines (CCP) for the primary purpose of propagating arts and culture in the Philippines.1 The CCP is to awaken the consciousness of the Filipino people to their artistic and cultural heritage and encourage them to preserve, promote, enhance, and develop such heritage.2 PD 15 created a Board of Trustees ("Board") to govern the CCP. PD 15 mandates the Board to draw up programs and projects that (1) cultivate and enhance public interest in, and appreciation of, Philippine art; (2) discover and develop talents connected with Philippine cultural pursuits; (3) create opportunities for individual and national self-expression in cultural affairs; and (4) encourage the organization of cultural groups and the staging of cultural exhibitions.3 The Board administers and holds in trust real and personal properties of the CCP for the benefit of the Filipino people.4 The Board invests income derived from its projects and operations in a Cultural Development Fund set up to attain the CCP's objectives.5 The consolidated petitions in the case at bar stem from a quo warranto proceeding involving two sets of CCP Boards. The controversy revolves on who between the contending groups, both claiming as the rightful trustees of the CCP Board, has the legal right to hold office. The resolution of the issue boils down to the constitutionality of the provision of PD 15 on the manner of filling vacancies in the Board. The Case Before us are two consolidated Petitions for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure. In G.R. No. 139554, petitioners Armita B. Rufino ("Rufino"), Zenaida R. Tantoco ("Tantoco"),6 Lorenzo Calma ("Calma"), Rafael Simpao, Jr. ("Simpao"), and Freddie Garcia ("Garcia"), represented by the Solicitor General and collectively referred to as the Rufino group, seek to set aside the Decision7 dated 14 May 1999 of the Court of Appeals in CA-G.R. SP No. 50272 as well as the Resolution dated 3 August 1999 denying the motion for reconsideration. The dispositive portion of the appellate court's decision reads: WHEREFORE, judgment is hereby rendered 1) Declaring petitioners [the Endriga group] to have a clear right to their respective offices to which they were elected by the CCP Board up to the expiration of their 4year term, 2) Ousting respondents [the Rufino group], except respondent Zenaida R. Tantoco, from their respective offices and excluding them therefrom, and 3) Dismissing the case against respondent Zenaida R. Tantoco. SO ORDERED.8

23

In G.R. No. 139565, petitioners Baltazar N. Endriga ("Endriga"), Ma. Paz D. Lagdameo ("Lagdameo"), Patricia C. Sison ("Sison"), Irma Ponce-Enrile Potenciano ("Potenciano"), and Doreen Fernandez ("Fernandez"), collectively referred to as the Endriga group, assail the Resolution dated 3 August 1999 issued by the Court of Appeals in the same case insofar as it denied their Motion for Immediate Execution of the Decision dated 14 May 1999. The Antecedents On 25 June 1966, then President Ferdinand E. Marcos issued Executive Order No. 30 (EO 30) creating the Cultural Center of the Philippines as a trust governed by a Board of Trustees of seven members to preserve and promote Philippine culture. The original founding trustees, who were all appointed by President Marcos, were Imelda Romualdez-Marcos, Juan Ponce-Enrile, Andres Soriano, Jr., Antonio Madrigal, Father Horacio Dela Costa, S.J., I.P. Soliongco, and Ernesto Rufino. On 5 October 1972, or soon after the declaration of Martial Law, President Marcos issued PD 15,9 the CCP's charter, which converted the CCP under EO 30 into a non-municipal public corporation free from the "pressure or influence of politics."10 PD 15 increased the members of CCP's Board from seven to nine trustees. Later, Executive Order No. 1058, issued on 10 October 1985, increased further the trustees to 11. After the People Power Revolution in 1986, then President Corazon C. Aquino asked for the courtesy resignations of the then incumbent CCP trustees and appointed new trustees to the Board. Eventually, during the term of President Fidel V. Ramos, the CCP Board included Endriga, Lagdameo, Sison, Potenciano, Fernandez, Lenora A. Cabili ("Cabili"), and Manuel T. Maosa ("Maosa"). On 22 December 1998, then President Joseph E. Estrada appointed seven new trustees to the CCP Board for a term of four years to replace the Endriga group as well as two other incumbent trustees. The seven new trustees were: 1. Armita B. Rufino - President, vice Baltazar N. Endriga 2. Zenaida R. Tantoco - Member, vice Doreen Fernandez 3. Federico Pascual - Member, vice Lenora A. Cabili 4. Rafael Buenaventura - Member, vice Manuel T. Maosa 5. Lorenzo Calma - Member, vice Ma. Paz D. Lagdameo 6. Rafael Simpao, Jr. - Member, vice Patricia C. Sison 7. Freddie Garcia - Member, vice Irma Ponce-Enrile Potenciano Except for Tantoco, the Rufino group took their respective oaths of office and assumed the performance of their duties in early January 1999. On 6 January 1999, the Endriga group filed a petition for quo warranto before this Court questioning President Estrada's appointment of seven new members to the CCP Board. The Endriga group alleged that under Section 6(b) of PD 15, vacancies in the CCP Board "shall be filled by election by a vote of a majority of the trustees held at the next regular meeting x x x." In case "only one trustee survive[s], the vacancies shall be filled by the surviving trustee acting in consultation with the ranking officers of the [CCP]." The Endriga group claimed that it is only when the CCP Board is entirely vacant may the President of the Philippines fill such vacancies, acting in consultation with the ranking officers of the CCP. The Endriga group asserted that when former President Estrada appointed the Rufino group, only one seat was vacant due to the expiration of Maosa's term. The CCP Board then had 10 incumbent trustees, namely, Endriga, Lagdameo, Sison, Potenciano, Fernandez, together with Cabili, Father Bernardo P. Perez ("Fr. Perez"), Eduardo De los Angeles ("De los Angeles"), Ma. Cecilia Lazaro ("Lazaro"), and Gloria M. Angara ("Angara").

President Estrada retained Fr. Perez, De los Angeles, Lazaro, and Angara as trustees. Endriga's term was to expire on 26 July 1999, while the terms of Lagdameo, Sison, Potenciano, and Fernandez were to expire on 6 February 1999. The Endriga group maintained that under the CCP Charter, the trustees' fixed four-year term could only be terminated "by reason of resignation, incapacity, death, or other cause." Presidential action was neither necessary nor justified since the CCP Board then still had 10 incumbent trustees who had the statutory power to fill by election any vacancy in the Board. The Endriga group refused to accept that the CCP was under the supervision and control of the President. The Endriga group cited Section 3 of PD 15, which states that the CCP "shall enjoy autonomy of policy and operation x x x." The Court referred the Endriga group's petition to the Court of Appeals "for appropriate action" in observance of the hierarchy of courts. On 14 May 1999, the Court of Appeals rendered the Decision under review granting the quo warranto petition. The Court of Appeals declared the Endriga group lawfully entitled to hold office as CCP trustees. On the other hand, the appellate court's Decision ousted the Rufino group from the CCP Board. In their motion for reconsideration, the Rufino group asserted that the law could only delegate to the CCP Board the power to appoint officers lower in rank than the trustees of the Board. The law may not validly confer on the CCP trustees the authority to appoint or elect their fellow trustees, for the latter would be officers of equal rank and not of lower rank. Section 6(b) of PD 15 authorizing the CCP trustees to elect their fellow trustees should be declared unconstitutional being repugnant to Section 16, Article VII of the 1987 Constitution allowing the appointment only of "officers lower in rank" than the appointing power. On 3 August 1999, the Court of Appeals denied the Rufino group's motion for reconsideration. The Court of Appeals also denied the Endriga group's motion for immediate execution of the 14 May 1999 Decision. Hence, the instant consolidated petitions. Meanwhile, Angara filed a Petition-in-Intervention before this Court alleging that although she was not named as a respondent in the quo warranto petition, she has an interest in the case as the then incumbent CCP Board Chairperson. Angara adopted the same position and offered the same arguments as the Rufino group. The Ruling of the Court of Appeals The Court of Appeals held that Section 6(b) of PD 15 providing for the manner of filling vacancies in the CCP Board is clear, plain, and free from ambiguity. Section 6(b) of PD 15 mandates the remaining trustees to fill by election vacancies in the CCP Board. Only when the Board is entirely vacant, which is not the situation in the present case, may the President exercise his power to appoint. The Court of Appeals stated that the legislative history of PD 15 shows a clear intent "to insulate the position of trustee from the pressure or influence of politics by abandoning appointment by the President of the Philippines as the mode of filling"11 vacancies in the CCP Board. The Court of Appeals held that until Section 6(b) of PD 15 is declared unconstitutional in a proper case, it remains the law. The Court of Appeals also clarified that PD 15 vests on the CCP Chairperson the power to appoint all officers, staff, and personnel of the CCP, subject to confirmation by the Board.

24

The Court of Appeals denied the Rufino group's motion for reconsideration for failure to raise new issues except the argument that Section 6(b) of PD 15 is unconstitutional. The Court of Appeals declined to rule on the constitutionality of Section 6(b) of PD 15 since the Rufino group raised this issue for the first time in the motion for reconsideration. The Court of Appeals also held, "Nor may the President's constitutional and/or statutory power of supervision and control over government corporations restrict or modify the application of the CCP Charter."12 The Court of Appeals, moreover, denied the Endriga group's motion for immediate execution of judgment on the ground that the reasons submitted to justify execution pending appeal were not persuasive. The Issues In G.R. No. 139554, the Rufino group, through the Solicitor General, contends that the Court of Appeals committed reversible error: I x x x in holding that it was "not actuated" to pass upon the constitutionality of Section 6(b) of PD 15 inasmuch as the issue was raised for the first time in [Rufino et al.'s] motion for reconsideration; II x x x in not holding that Section 6(b) of PD 15 is unconstitutional considering that: A. x x x [it] is an invalid delegation of the President's appointing power under the Constitution; B. x x x [it] effectively deprives the President of his constitutional power of control and supervision over the CCP; III x x x in declaring the provisions of PD 15 as clear and complete and in failing to apply the executive/administrative construction x x x which has been consistently recognized and accepted since 1972; IV x x x in finding that [Endriga et al.] have a clear legal right to be the incumbent trustees and officers of the CCP considering that: A. Endriga et al. are estopped from instituting the quo warranto action since they recognized and benefited from the administrative construction regarding the filling of vacancies in the CCP Board of Trustees x x x; B. x x x [Endriga et al.'s] terms did not legally commence as [they] were not validly elected under PD 15; C. assuming that [Endriga et al.] were validly elected, they lost their right to retain their offices because their terms as trustees expired on 31 December 1998; D. [Endriga et al.] assumed positions in conflict x x x with their offices in the CCP and were thus not entitled to retain the same;

V x x x in not dismissing the quo warranto petition for being moot x x x; VI x x x in holding that [Rufino et al.'s] prayer [that the] disputed offices [be declared] entirely as vacant is bereft of basis and amounts to "an admission of their lack of right to the office they claim."13 In G.R. No. 139565, the Endriga group raises the following issue: whether a writ of quo warranto involving a public office should be declared a self-executing judgment and deemed immediately executory under Rule 39, Section 4 of the Rules of Court.14 The Court's Ruling The petition in G.R. No. 139554 has merit. The battle for CCP's leadership between the Rufino and Endriga groups dealt a blow to the country's artistic and cultural activities. The highly publicized leadership row over the CCP created discord among management, artists, scholars, employees, and even the public because of the public interest at stake. Subsequently, the assumption to office of a new President in 2001 seemingly restored normalcy to the CCP leadership. After then Vice-President Gloria Macapagal-Arroyo assumed the Presidency on 20 January 2001, the Rufino group tendered their respective resignations on 24-29 January 2001 as trustees of the CCP Board. On 12 July 2001, President Macapagal-Arroyo appointed 11 trustees to the CCP Board with the corresponding positions set opposite their names: 1. Baltazar N. Endriga - Chairman 2. Nestor O. Jardin - President 3. Ma. Paz D. Lagdameo - Member 4. Teresita O. Luz - Member 5. Irma P.E. Potenciano - Member 6. Eduardo D. De los Angeles - Member 7. Patricia C. Sison - Member 8. Benjamin H. Cervantes - Member 9. Sonia M. Roco - Member 10. Ruperto S. Nicdao, Jr. - Member 11. Lina F. Litton - Member In its special meeting on 13 July 2001, the CCP Board elected these 11 newly-appointed trustees to the same positions and as trustees of the CCP Board. In the same meeting, the Board also elected the Chairman and President. On 21 December 2001, the Solicitor General submitted to this Court a manifestation stating that the "election of the trustees was made without prejudice to the resolution of the constitutional issues before this Honorable Court in G.R. Nos. 139554 and 139565, x x x."15 The Issue of Mootness We first consider the Rufino group's contention that the Endriga group's quo warranto suit should have been dismissed for being moot. The Rufino group argued that when the Endriga group's terms subsequently expired, there was no more actual controversy for the Court to decide. For the Court to exercise its power of adjudication, there must be an actual case or controversy one that involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution.16 The case must not be moot or based on extra-legal or other similar considerations not cognizable by

25

courts of justice.17 A case becomes moot when its purpose has become stale.18 The purpose of the quo warranto petition was to oust the Rufino group from the CCP Board and to declare the Endriga group as the rightful trustees of the CCP Board. It may appear that supervening events have rendered this case moot with the resignation of the Rufino group as well as the expiration of the terms of the Endriga group based on their appointments by then President Ramos. A "new" set of CCP trustees had been appointed by President Macapagal-Arroyo and subsequently elected by the CCP Board. However, there are times when the controversy is of such character that to prevent its recurrence, and to assure respect for constitutional limitations, this Court must pass on the merits of a case. This is one such case. The issues raised here are no longer just determinative of the respective rights of the contending parties. The issues pertaining to circumstances personal to the Endriga group may have become stale. These issues are (1) whether the Endriga group is estopped from bringing the quo warranto for they themselves were appointed by the incumbent President; (2) whether they were validly elected by the remaining CCP trustees; (3) whether their terms expired on 31 December 1998 as specified in their appointment papers; and (4) whether they are entitled to immediate execution of judgment. However, the constitutional question that gave rise to these issues will continue to spawn the same controversy in the future, unless the threshold constitutional question is resolved the validity of Section 6(b) and (c) of PD 15 on the manner of filling vacancies in the CCP Board. While the issues may be set aside in the meantime, they are certain to recur every four years, especially when a new President assumes office, generating the same controversy all over again. Thus, the issues raised here are capable of repetition, yet evading review if compromises are resorted every time the same controversy erupts and the constitutionality of Section 6(b) and (c) of PD 15 is not resolved. The Court cannot refrain from passing upon the constitutionality of Section 6(b) and (c) of PD 15 if only to prevent a repeat of this regrettable controversy and to protect the CCP from being periodically wracked by internecine politics. Every President who assumes office naturally wants to appoint his or her own trustees to the CCP Board. A frontal clash will thus periodically arise between the President's constitutional power to appoint under Section 16, Article VII of the 1987 Constitution and the CCP trustees' power to elect their fellow trustees under Section 6(b) and (c) of PD 15. This Court may, in the exercise of its sound discretion, brush aside procedural barriers19 and take cognizance of constitutional issues due to their paramount importance. It is the Court's duty to apply the 1987 Constitution in accordance with what it says and not in accordance with how the Legislature or the Executive would want it interpreted.20 This Court has the final word on what the law means.21 The Court must assure respect for the constitutional limitations embodied in the 1987 Constitution. Interpreting Section 6(b) and (c) of PD 15 At the heart of the controversy is Section 6(b) of PD 15, as amended, which reads: Board of Trustees. The governing powers and authority of the corporation shall be vested in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation. xxxx (b) Vacancies in the Board of Trustees due to termination of term, resignation, incapacity, death or

other cause as may be provided in the By-laws, shall be filled by election by a vote of a majority of the trustees held at the next regular meeting following occurrence of such vacancy. The elected trustee shall then hold office for a complete term of four years unless sooner terminated by reason of resignation, incapacity, death or other cause. Should only one trustee survive, the vacancies shall be filled by the surviving trustee acting in consultation with the ranking officers of the Center. Such officers shall be designated in the Center's Code of By-Laws. Should for any reason the Board be left entirely vacant, the same shall be filled by the President of the Philippines acting in consultation with the aforementioned ranking officers of the Center. (Emphasis supplied) Inextricably related to Section 6(b) is Section 6(c) which limits the terms of the trustees, as follows: (c) No person may serve as trustee who is not a resident of the Philippines, of good moral standing in the community and at least 25 years of age: Provided, That there shall always be a majority of the trustees who are citizens of the Philippines. Trustees may not be reelected for more than two (2) consecutive terms. (Emphasis supplied) The clear and categorical language of Section 6(b) of PD 15 states that vacancies in the CCP Board shall befilled by a majority vote of the remaining trustees. Should only one trustee survive, the vacancies shall be filled by the surviving trustee acting in consultation with the ranking officers of the CCP. Should the Board become entirely vacant, the vacancies shall be filled by the President of the Philippines acting in consultation with the same ranking officers of the CCP. Thus, the remaining trustees, whether one or more, elect their fellow trustees for a fixed four-year term. On the other hand, Section 6(c) of PD 15 does not allow trustees to reelect fellow trustees for more than two consecutive terms. The Power of Appointment The source of the President's power to appoint, as well as the Legislature's authority to delegate the power to appoint, is found in Section 16, Article VII of the 1987 Constitution which provides: 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 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. (Emphasis supplied) The power to appoint is the prerogative of the President, except in those instances when the Constitution provides otherwise. Usurpation of this fundamentally Executive power by the Legislative and Judicial branches violates the system of separation of powers that inheres in our democratic republican government.22

26

Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of officers. The first group refers to 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 the President by the Constitution. The second group refers to those whom the President may be authorized by law to appoint. The third group refers to all other officers of the Government whose appointments are not otherwise provided by law. Under the same Section 16, there is a fourth group of lowerranked officers whose appointments Congress may by law vest in the heads of departments, agencies, commissions, or boards. The present case involves the interpretation of Section 16, Article VII of the 1987 Constitution with respect to the appointment of this fourth group of officers.23 The President appoints the first group of officers with the consent of the Commission on Appointments. The President appoints the second and third groups of officers without the consent of the Commission on Appointments. The President appoints the third group of officers if the law is silent on who is the appointing power, or if the law authorizing the head of a department, agency, commission, or board to appoint is declared unconstitutional. Thus, if Section 6(b) and (c) of PD 15 is found unconstitutional, the President shall appoint the trustees of the CCP Board because the trustees fall under the third group of officers. The Scope of the Appointment Power of the Heads of Departments, Agencies, Commissions, or Boards The original text of Section 16, Article VII of the 1987 Constitution, as written in Resolution No. 51724 of the Constitutional Commission, is almost a verbatim copy of the one found in the 1935 Constitution. Constitutional Commissioner Father Joaquin Bernas, S.J., explains the evolution of this provision and its import, thus: The last sentence of the first paragraph of Section 16 x x x is a relic from the 1935 and 1973 Constitutions, x x x. Under the 1935 Constitution, the provision was: "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." As already seen, it meant that, while the general rule was that all presidential appointments needed confirmation by the Commission on Appointments, Congress could relax this rule by vesting the power to appoint "inferior officers" in "the President alone, in the courts, or in the heads of departments." It also meant that while, generally, appointing authority belongs to the President, Congress could let others share in such authority. And the word "inferior" was understood to mean not petty or unimportant but lower in rank than those to whom appointing authority could be given. Under the 1973 Constitution, according to which the power of the President to appoint was not limited by any other body, the provision read: "However, the Batasang Pambansa may by law vest in members of the Cabinet, courts, heads of agencies, commissions, and boards the power to appoint inferior officers in their respective offices." No mention was made of the President. The premise was that the power to appoint belonged to the President; but the Batasan could diffuse this authority by allowing it to be shared by officers other than the President. The 1987 provision also has the evident intent of allowing Congress to give to officers other than the President the authority to appoint. To that extent therefore reference to the President is pointless. And by using the word "alone," copying the tenor of the 1935

provision, it implies, it is submitted, that the general rule in the 1935 Constitution of requiring confirmation by the Commission on Appointments had not been changed. Thereby the picture has been blurred. This confused text, however, should be attributed to oversight. Reference to the President must be ignored and the whole sentence must be read merely as authority for Congress to vest appointing power in courts, in heads of departments, agencies, commissions, or boards after the manner of the 1973 text. Incidentally, the 1987 text, in order to eschew any pejorative connotation, avoids the phrase "inferior officers" and translates it instead into "officers lower in rank," that is, lower in rank than the courts or the heads of departments, agencies, commissions, or boards.25 (Emphasis supplied) The framers of the 1987 Constitution clearly intended that Congress could by law vest the appointment of lower-ranked officers in the heads of departments, agencies, commissions, or boards. The deliberations26 of the 1986 Constitutional Commission explain this intent beyond any doubt.27 The framers of the 1987 Constitution changed the qualifying word "inferior" to the less disparaging phrase "lower in rank" purely for style. However, the clear intent remained that these inferior or lower in rank officers are the subordinates of the heads of departments, agencies, commissions, or boards who are vested by law with the power to appoint. The express language of the Constitution and the clear intent of its framers point to only one conclusion the officers whom the heads of departments, agencies, commissions, or boards may appoint must be of lower rank than those vested by law with the power to appoint. Congress May Vest the Authority to Appoint Only in the Heads of the Named Offices Further, Section 16, Article VII of the 1987 Constitution authorizes Congress to vest "in the heads of departments, agencies, commissions, or boards" the power to appoint lowerranked officers. Section 16 provides: 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) In a department in the Executive branch, the head is the Secretary. The law may not authorize the Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive department. In an agency, the power is vested in the head of the agency for it would be preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the commission. In a board, the head is also the chairperson of the board. In the last three situations, the law may not also authorize officers other than the heads of the agency, commission, or board to appoint lower-ranked officers. The grant of the power to appoint to the heads of agencies, commissions, or boards is a matter of legislative grace. Congress has the discretion to grant to, or withhold from, the heads of agencies, commissions, or boards the power to appoint lowerranked officers. If it so grants, Congress may impose certain conditions for the exercise of such legislative delegation, like requiring the recommendation of subordinate officers or the concurrence of the other members of the commission or board. This is in contrast to the President's power to appoint which is a self-executing power vested by the Constitution itself and thus not subject to legislative limitations or conditions.28 The power to appoint conferred directly by the Constitution on the Supreme Court en banc29 and on the Constitutional Commissions30 is also self-executing and not subject to legislative limitations or conditions.

27

The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically in the "heads" of the specified offices, and in no other person.31 The word "heads" refers to the chairpersons of the commissions or boards and not to their members, for several reasons. First, a plain reading of the last sentence of the first paragraph of Section 16, Article VII of the 1987 Constitution shows that the word "heads" refers to all the offices succeeding that term, namely, the departments, agencies, commissions, or boards. This plain reading is consistent with other related provisions of the Constitution. Second, agencies, like departments, have no collegial governing bodies but have only chief executives or heads of agencies. Thus, the word "heads" applies to agencies. Any other interpretation is untenable. Third, all commissions or boards have chief executives who are their heads. Since the Constitution speaks of "heads" of offices, and all commissions or boards have chief executives or heads, the word "heads" could only refer to the chief executives or heads of the commissions or boards. Fourth, the counterpart provisions of Section 16, Article VII of the 1987 Constitution in the 1935 and 1973 Constitutions uniformly refer to "heads" of offices. The 1935 Constitution limited the grant of the appointment power only to "heads of departments."32 The 1973 Constitution expanded such grant to other officers, namely, "members of the Cabinet, x x x, courts, heads of agencies, commissions, and boards x x x."33 If the 1973 Constitution intended to extend the grant to members of commissions or boards, it could have followed the same language used for "members of the Cabinet" so as to state "members of commissions or boards." Alternatively, the 1973 Constitution could have placed the words commissions and boards after the word "courts" so as to state "members of the Cabinet, x x x, courts, commissions and boards." Instead, the 1973 Constitution used "heads of agencies, commissions, and boards." Fifth, the 1935, 1973, and 1987 Constitutions make a clear distinction whenever granting the power to appoint lowerranked officers to members of a collegial body or to the head of that collegial body. Thus, the 1935 Constitution speaks of vesting the power to appoint "in the courts, or in the heads of departments." Similarly, the 1973 Constitution speaks of "members of the Cabinet, courts, heads of agencies, commissions, and boards." Also, the 1987 Constitution speaks of vesting the power to appoint "in the courts, or in the heads of departments, agencies, commissions, or boards." This is consistent with Section 5(6), Article VIII of the 1987 Constitution which states that the "Supreme Court shall x x x [a]ppoint all officials and employees of the Judiciary in accordance with the Civil Service Law," making the Supreme Court en banc the appointing power. In sharp contrast, when the 1987 Constitution speaks of the power to appoint lower-ranked officers in the Executive branch, it vests the power "in the heads of departments, agencies, commissions, or boards." In addition, the 1987 Constitution expressly provides that in the case of the constitutional commissions, the power to appoint lower-ranked officers is vested in the commission as a body. Thus, Section 4, Article IX-A of the 1987 Constitution provides, "The Constitutional Commissions shall appoint their officials and employees in accordance with law." Sixth, the last clause of the pertinent sentence in Section 16, Article VII of the 1987 Constitution is anenumeration of offices whose heads may be vested by law with the power to appoint lower-ranked officers. This is clear from the framers' deliberations of the 1987 Constitution, thus: THE PRESIDENT: Commissioner Davide is recognized.

MR. DAVIDE: On page 8, line 3, change the period (.) after "departments" to a comma (,) and add AGENCIES, COMMISSIONS, OR BOARDS. This is just to complete the enumeration in the 1935 Constitution from which this additional clause was taken. THE PRESIDENT: Does the Committee accept? xxxx MR. SUMULONG: We accept the amendment. MR. ROMULO: The Committee has accepted the amendment, Madam President. THE PRESIDENT: Is there any objection to the addition of the words "AGENCIES, COMMISSIONS, OR BOARDS" on line 3, page 8? (Silence) The Chair hears none; the amendment is approved.34 (Italicization in the original; boldfacing supplied) As an enumeration of offices, what applies to the first office in the enumeration also applies to the succeeding offices mentioned in the enumeration. Since the words "in the heads of" refer to "departments," the same words "in the heads of" also refer to the other offices listed in the enumeration, namely, "agencies, commissions, or boards." The Chairperson of the CCP Board is the Head of CCP The head of the CCP is the Chairperson of its Board. PD 15 and its various amendments constitute the Chairperson of the Board as the head of CCP. Thus, Section 8 of PD 15 provides: Appointment of Personnel. The Chairman, with the confirmation of the Board, shall have the power to appoint all officers, staff and personnel of the Center with such compensation as may be fixed by the Board, who shall be residents of the Philippines. The Center may elect membership in the Government Service Insurance System and if it so elects, its officers and employees who qualify shall have the same rights and privileges as well as obligations as those enjoyed or borne by persons in the government service. Officials and employees of the Center shall be exempt from the coverage of the Civil Service Law and Rules. Section 3 of the Revised Rules and Regulations of the CCP recognizes that the head of the CCP is the Chairman of its Board when it provides: CHAIRMAN OF THE BOARD. The Board of Trustees shall elect a Chairman who must be one of its members, and who shall be the presiding officer of the Board of Trustees, with power among others, to appoint, within the compensation fixed by the Board, and subject to confirmation of the Board, remove, discipline all officers and personnel of the Center, and to do such other acts and exercise such other powers as may be determined by the Board of Trustees. The Chairman shall perform his duties and exercise his powers as such until such time as the Board of Trustees, by a majority vote, shall elect another Chairman. The Chairman shall be concurrently President, unless the Board otherwise elects another President. Thus, the Chairman of the CCP Board is the "head" of the CCP who may be vested by law, under Section 16, Article VII of the 1987 Constitution, with the power to appoint lower-ranked officers of the CCP. Under PD 15, the CCP is a public corporation governed by a Board of Trustees. Section 6 of PD 15, as amended, states:

28

Board of Trustees. The governing powers and authority of the corporation shall be vested in, and exercised by, a Board of eleven (11) Trustees who shall serve without compensation. The CCP, being governed by a board, is not an agency but a board for purposes of Section 16, Article VII of the 1987 Constitution. Section 6(b) and (c) of PD 15 Repugnant to Section 16, Article VII of the 1987 Constitution Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent with Section 16, Article VII of the 1987 Constitution. Section 6(b) and (c) of PD 15 empowers the remaining trustees of the CCP Board to fill vacancies in the CCP Board, allowing them to elect their fellow trustees. On the other hand, Section 16, Article VII of the 1987 Constitution allows heads of departments, agencies, commissions, or boards to appoint only "officers lower in rank" than such "heads of departments, agencies, commissions, or boards." This excludes a situation where the appointing officer appoints an officer equal in rank as him. Thus, insofar as it authorizes the trustees of the CCP Board to elect their cotrustees, Section 6(b) and (c) of PD 15 is unconstitutional because it violates Section 16, Article VII of the 1987 Constitution. It does not matter that Section 6(b) of PD 15 empowers the remaining trustees to "elect" and not "appoint" their fellow trustees for the effect is the same, which is to fill vacancies in the CCP Board. A statute cannot circumvent the constitutional limitations on the power to appoint by filling vacancies in a public office through election by the co-workers in that office. Such manner of filling vacancies in a public office has no constitutional basis. Further, Section 6(b) and (c) of PD 15 makes the CCP trustees the independent appointing power of their fellow trustees. The creation of an independent appointing power inherently conflicts with the President's power to appoint. This inherent conflict has spawned recurring controversies in the appointment of CCP trustees every time a new President assumes office. In the present case, the incumbent President appointed the Endriga group as trustees, while the remaining CCP trustees elected the same Endriga group to the same positions. This has been the modus vivendi in filling vacancies in the CCP Board, allowing the President to appoint and the CCP Board to elect the trustees. In effect, there are two appointing powers over the same set of officers in the Executive branch . Each appointing power insists on exercising its own power, even if the two powers are irreconcilable. The Court must put an end to this recurring anomaly. The President's Power of Control There is another constitutional impediment to the implementation of Section 6(b) and (c) of PD 15. Under our system of government, all Executive departments, bureaus, and offices are under the control of the President of the Philippines. Section 17, Article VII of the 1987 Constitution provides: The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied) The presidential power of control over the Executive branch of government extends to all executive employees from the Department Secretary to the lowliest clerk.35 This constitutional power of the President is self-executing and does not require any implementing law. Congress cannot limit or curtail the President's power of control over the Executive branch.36 The 1987 Constitution has established three branches of government the Executive, Legislative and Judicial. In addition,

there are the independent constitutional bodies like the Commission on Elections, Commission on Audit, Civil Service Commission, and the Ombudsman. Then there are the hybrid or quasi-judicial agencies,37exercising jurisdiction in specialized areas, that are under the Executive branch for administrative supervision purposes, but whose decisions are reviewable by the courts. Lastly, there are the local government units, which under the Constitution enjoy local autonomy38 subject only to limitations Congress may impose by law.39 Local government units are subject to general supervision by the President.40 Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial branches, or must belong to one of the independent constitutional bodies, or must be a quasijudicial body or local government unit. Otherwise, such government office, entity, or agency has no legal and constitutional basis for its existence. The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local government unit. Thus, the CCP must fall under the Executive branch. Under the Revised Administrative Code of 1987, any agency "not placed by law or order creating them under any specific department" falls "under the Office of the President."41 Since the President exercises control over "all the executive departments, bureaus, and offices," the President necessarily exercises control over the CCP which is an office in the Executive branch. In mandating that the President "shall have control of all executive x x x offices," Section 17, Article VII of the 1987 Constitution does not exempt any executive office one performing executive functions outside of the independent constitutional bodies from the President's power of control. There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial functions. The President's power of control applies to the acts or decisions of all officers in the Executive branch. This is true whether such officers are appointed by the President or by heads of departments, agencies, commissions, or boards. The power of control means the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion.42 In short, the President sits at the apex of the Executive branch, and exercises "control of all the executive departments, bureaus, and offices." There can be no instance under the Constitution where an officer of the Executive branch is outside the control of the President. The Executive branch is unitary since there is only one President vested with executive power exercising control over the entire Executive branch.43 Any office in the Executive branch that is not under the control of the President is a lost command whose existence is without any legal or constitutional basis. The Legislature cannot validly enact a law that puts a government office in the Executive branch outside the control of the President in the guise of insulating that office from politics or making it independent. If the office is part of the Executive branch, it must remain subject to the control of the President. Otherwise, the Legislature can deprive the President of his constitutional power of control over "all the executive x x x offices." If the Legislature can do this with the Executive branch, then the Legislature can also deal a similar blow to the Judicial branch by enacting a law putting decisions of certain lower courts beyond the review power of the Supreme Court. This will destroy the system of checks and balances finely structured in the 1987 Constitution among the Executive, Legislative, and Judicial branches. Of course, the President's power of control does not extend to quasi-judicial bodies whose proceedings and decisions are judicial in nature and subject to judicial review, even as such quasi-judicial bodies may be under the administrative supervision of the President. It also does not extend to local

29

government units, which are merely under the general supervision of the President. Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to fill vacancies in the Board, runs afoul with the President's power of control under Section 17, Article VII of the 1987 Constitution. The intent of Section 6(b) and (c) of PD 15 is to insulate the CCP from political influence and pressure, specifically from the President.44 Section 6(b) and (c) of PD 15 makes the CCP a self-perpetuating entity, virtually outside the control of the President. Such a public office or board cannot legally exist under the 1987 Constitution. Section 3 of PD 15, as amended, states that the CCP "shall enjoy autonomy of policy and operation x x x."45 This provision does not free the CCP from the President's control, for if it does, then it would be unconstitutional. This provision may give the CCP Board a free hand in initiating and formulating policies and undertaking activities, but ultimately these policies and activities are all subject to the President's power of control. The CCP is part of the Executive branch. No law can cut off the President's control over the CCP in the guise of insulating the CCP from the President's influence. By stating that the "President shall have control of all the executive x x x offices," the 1987 Constitution empowers the President not only to influence but even to control all offices in the Executive branch, including the CCP. Control is far greater than, and subsumes, influence. WHEREFORE, we GRANT the petition in G.R. No. 139554. We declare UNCONSTITUTIONAL Section 6(b) and (c) of Presidential Decree No. 15, as amended, insofar as it authorizes the remaining trustees to fill by election vacancies in the Board of Trustees of the Cultural Center of the Philippines. In view of this ruling in G.R. No. 139554, we find it unnecessary to rule on G.R. No. 139565. SO ORDERED.

G.R. No. 81954

August 8, 1989

CESAR Z. DARIO, petitioner, vs. HON. SALVADOR M. MISON, HON. VICENTE JAYME and HON. CATALINO MACARAIG, JR., in their respective capacities as Commissioner of Customs, Secretary of Finance, and Executive Secretary,respondents. SARMIENTO, J.: The Court writes finis to this contreversy that has raged bitterly for the several months. It does so out of ligitimate presentement of more suits reaching it as a consequence of the government reorganization and the instability it has wrought on the performance and efficiency of the bureaucracy. The Court is apprehensive that unless the final word is given and the ground rules are settled, the issue will fester, and likely foment on the constitutional crisis for the nation, itself biset with grave and serious problems. The facts are not in dispute. On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION." Among other things, Proclamation No. 3 provided: SECTION 1. ... The President shall give priority to measures to achieve the mandate of the people to: (a) Completely reorganize the government, eradicate unjust and oppressive structures, and all iniquitous vestiges of the previous regime; 1 ... Pursuant thereto, it was also provided: SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption. SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986. SECTION 3. Any public officer or employee separated from the service as a result of the organization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder. SECTION 4. The records, equipment, buildings, facilities and other properties of all government offices shall be carefully preserved. In case any office or body is abolished or reorganized pursuant to this Proclamation, its FUNDS and properties shall be transferred to the office or body to which its powers, functions and responsibilities substantially pertain. 2 Actually, the reorganization process started as early as February 25, 1986, when the President, in her first act in office, called upon

30

"all appointive public officials to submit their courtesy resignation(s) beginning with the members of the Supreme Court."3 Later on, she abolished the Batasang Pambansa4 and the positions of Prime Minister and Cabinet 5 under the 1973 Constitution. Since then, the President has issued a number of executive orders and directives reorganizing various other government offices, a number of which, with respect to elected local officials, has been challenged in this Court, 6and two of which, with respect to appointed functionaries, have likewise been questioned herein. 7 On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Executive Order No. 17 recognized the "unnecessary anxiety and demoralization among the deserving officials and employees" the ongoing government reorganization had generated, and prescribed as "grounds for the separation/replacement of personnel," the following: SECTION 3. The following shall be the grounds for separation replacement of personnel: 1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law; 2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Mnistry Head concerned; 3) Gross incompetence or inefficiency in the discharge of functions; 4) Misuse of public office for partisan political purposes; 5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service.8 On January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING THE MINISTRY OF FINANCE." 9 Among other offices, Executive Order No. 127 provided for the reorganization of the Bureau of Customs 10 and prescribed a new staffing pattern therefor. Three days later, on February 2, 1987, 11 the Filipino people adopted the new Constitution. On January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a Memorandum, in the nature of "Guidelines on the Implementation of Reorganization Executive Orders," 12 prescribing the procedure in personnel placement. It also provided: 1. By February 28, 1988, the employees covered by Executive Order 127 and the grace period extended to the Bureau of Customs by the President of the Philippines on reorganization shall be: a) informed of their re-appointment, or b) offered another position in the same department or agency or c) informed of their termination. 13 On the same date, Commissioner Mison constituted a Reorganization Appeals Board charged with adjudicating appeals

from removals under the above Memorandum. 14 On January 26, 1988, Commissioner Mison addressed several notices to various Customs officials, in the tenor as follows: Sir: Please be informed that the Bureau is now in the process of implementing the Reorganization Program under Executive Order No. 127. Pursuant to Section 59 of the same Executive Order, all officers and employees of the Department of Finance, or the Bureau of Customs in particular, shall continue to perform their respective duties and responsibilities in a hold-over capacity, and that those incumbents whose positions are not carried in the new reorganization pattern, or who are not re- appointed, shall be deemed separated from the service. In this connection, we regret to inform you that your services are hereby terminated as of February 28, 1988. Subject to the normal clearances, you may receive the retirement benefits to which you may be entitled under existing laws, rules and regulations. In the meantime, your name will be included in the consolidated list compiled by the Civil Service Commission so that you may be given priority for future employment with the Government as the need arises. Sincerely yours, (Sgd) SALVADOR M. MISON Commissioner15 As far as the records will yield, the following were recipients of these notices: 1. CESAR DARIO 2. VICENTE FERIA, JR. 3. ADOLFO CASARENO 4. PACIFICO LAGLEVA 5. JULIAN C. ESPIRITU 6. DENNIS A. AZARRAGA 7. RENATO DE JESUS 8. NICASIO C. GAMBOA 9. CORAZON RALLOS NIEVES 10. FELICITACION R. GELUZ 11. LEODEGARIO H. FLORESCA 12. SUBAER PACASUM 13. ZENAIDA LANARIA 14. JOSE B. ORTIZ 15. GLICERIO R. DOLAR 16. CORNELIO NAPA 17. PABLO B. SANTOS 18. FERMIN RODRIGUEZ 19. DALISAY BAUTISTA 20. LEONARDO JOSE 21. ALBERTO LONTOK 22. PORFIRIO TABINO 23. JOSE BARREDO 24. ROBERTO ARNALDO 25. ESTER TAN 26. PEDRO BAKAL 27. ROSARIO DAVID 28. RODOLFO AFUANG 29. LORENZO CATRE 30. LEONCIA CATRE 31. ROBERTO ABADA 32. ABACA, SISINIO T. 33. ABAD, ROGELIO C. 34. ABADIANO, JOSE P 35. ABCEDE, NEMECIO C. 36. ABIOG, ELY F. 37. ABLAZA, AURORA M. 38. AGBAYANI, NELSON I. 39. AGRES, ANICETO

31

40. AGUILAR, FLOR 41. AGUILUCHO, MA. TERESA R. 42. AGUSTIN, BONIFACIO T. 43. ALANO, ALEX P. 44. ALBA, MAXIMO F. JR. 45. ALBANO, ROBERT B. 46. ALCANTARA, JOSE G. 47. ALMARIO, RODOLFO F. 48. ALVEZ, ROMUALDO R. 49. AMISTAD, RUDY M. 50. AMOS, FRANCIS F. 51. ANDRES, RODRIGO V. 52. ANGELES, RICARDO S. 53. ANOLIN, MILAGROS H. 54. AQUINO, PASCASIO E. L. 55. ARABE, MELINDA M. 56. ARCANGEL, AGUSTIN S, JR. 57. ARPON, ULPIANO U., JR. 58. ARREZA, ARTEMIO M, JR. 59. ARROJO, ANTONIO P. 60. ARVISU, ALEXANDER S. 61. ASCA;O, ANTONIO T. 62. ASLAHON, JULAHON P. 63. ASUNCION, VICTOR R. 64. ATANGAN, LORNA S. 65. ANTIENZA, ALEXANDER R. 66. BACAL URSULINO C. 67. BA;AGA, MARLOWE Z. 68. BANTA, ALBERTO T. 69. BARROS, VICTOR C. 70. BARTOLOME, FELIPE A. 71. BAYSAC, REYNALDO S. 72. BELENO, ANTONIO B. 73. BERNARDO, ROMEO D. 74. BERNAS, MARCIANO S. 75. BOHOL, AUXILIADOR G. 76. BRAVO, VICTOR M. 77. BULEG, BALILIS R. 78. CALNEA, MERCEDES M. 79. CALVO, HONESTO G. 80. CAMACHO, CARLOS V. 81. CAMPOS, RODOLFO C. 82. CAPULONG, RODRIGO G. 83. CARINGAL, GRACIA Z. 84. CARLOS, LORENZO B. 85. CARRANTO, FIDEL U. 86. CARUNGCONG, ALFREDO M. 87. CASTRO, PATRICIA J. 88. CATELO, ROGELIO B. 89. CATURLA, MANUEL B. 90. CENIZAL, JOSEFINA F. 91. CINCO, LUISITO 92. CONDE, JOSE C., JR. 93. CORCUERA, FIDEL S. 94. CORNETA, VICENTE S. 95. CORONADO, RICARDO S. 96. CRUZ, EDUARDO S. 97. CRUZ, EDILBERTO A, 98. CRUZ, EFIGENIA B. 99. CRUZADO,NORMA M. 100. CUSTODIO, RODOLFO M. 101. DABON, NORMA M. 102. DALINDIN, EDNA MAE D. 103. DANDAL, EDEN F. 104. DATUHARON, SATA A. 105. DAZO, GODOFREDO L. 106. DE CASTRO, LEOPAPA 107. DE GUZMAN, ANTONIO A. 108. DE GUZMAN, RENATO E. 109. DE LA CRUZ, AMADO A., JR. 110. DE LA CRUZ, FRANCISCO C. 111. DE LA PE;A, LEONARDO 112. DEL CAMPO, ORLANDO 113. DEL RIO, MAMERTO P., JR. 114. DEMESA, WILHELMINA T. 115. DIMAKUTA, SALIC L. 116. DIZON, FELICITAS A. 117. DOCTOR, HEIDY M. 118. DOMINGO, NICANOR J.

119. DOMINGO, PERFECTO V., JR. 120. DUAY, JUANA G. 121. DYSANGCO, RENATO F. 122. EDILLOR, ALFREDO P. 123. ELEVAZO, LEONARDO A 124. ESCUYOS, MANUEL M., JR. 125. ESMERIA, ANTONIO E. 126. ESPALDON, MA. LOURDES H. 127. ESPINA, FRANCO A. 128. ESTURCO, RODOLFO C. 129. EVANGELINO, FERMIN I. 130. FELIX, ERNESTO G. 131. FERNANDEZ, ANDREW M. 132. FERRAREN, ANTONIO C. 133. FERRERA, WENCESLAO A. 134. FRANCISCO, PELAGIO S, JR. 135. FUENTES, RUDY L. 136. GAGALANG, RENATO V. 137. GALANG, EDGARDO R. 138. GAMBOA, ANTONIO C. 139. GAN, ALBERTO P 140. GARCIA, GILBERT M. 141. GARCIA, EDNA V. 142. GARCIA, JUAN L. 143. GAVIOIA, LILIAN V. 144. GEMPARO, SEGUNDINA G. 145. GOBENCIONG, FLORDELIZ B. 146. GRATE, FREDERICK R. 147. GREGORIO, LAURO P. 148. GUARTICO, AMMON H. 149. GUIANG, MYRNA N. 150. GUINTO, DELFIN C. 151. HERNANDEZ, LUCAS A. 152. HONRALES, LORETO N. 153. HUERTO, LEOPOLDO H. 154. HULAR, LANNYROSS E. 155. IBA;EZ, ESTER C. 156. ILAGAN, HONORATO C. 157. INFANTE, REYNALDO C. 158. ISAIS, RAY C. 159. ISMAEL, HADJI AKRAM B. 160. JANOLO, VIRGILIO M. 161. JAVIER, AMADOR L. 162. JAVIER, ROBERTO S. 163. JAVIER, WILLIAM R. 164. JOVEN, MEMIA A. 165. JULIAN, REYNALDO V. 166. JUMAMOY, ABUNDIO A. 167. JUMAQUIAO, DOMINGO F. 168. KAINDOY, PASCUAL B., JR. 169. KOH, NANIE G. 170. LABILLES, ERNESTO S. 171. LABRADOR, WILFREDO M. 172. LAGA, BIENVENIDO M. 173. LAGMAN, EVANGELINE G. 174. LAMPONG, WILFREDO G. 175. LANDICHO, RESTITUTO A. 176. LAPITAN, CAMILO M. 177. LAURENTE, REYNALDO A. 178. LICARTE, EVARISTO R. 179. LIPIO, VICTOR O. 180. LITTAUA, FRANKLIN Z. 181. LOPEZ, MELENCIO L. 182. LUMBA, OLIVIA R. 183. MACAISA, BENITO T. 184. MACAISA, ERLINDA C. 185. MAGAT, ELPIDIO 186. MAGLAYA, FERNANDO P. 187. MALABANAN, ALFREDO C. 188. MALIBIRAN, ROSITA D. 189. MALIJAN, LAZARO V. 190. MALLI, JAVIER M. 191. MANAHAN, RAMON S. 192. MANUEL, ELPIDIO R. 193. MARAVILLA, GIL B. 194. MARCELO, GIL C. 195. MARI;AS, RODOLFO V. 196. MAROKET ,JESUS C. 197. MARTIN, NEMENCIO A.

32

198. MARTINEZ, ROMEO M. 199. MARTINEZ, ROSELINA M. 200. MATIBAG, ANGELINA G. 201. MATUGAS, ERNESTO T. 202. MATUGAS, FRANCISCO T. 203. MAYUGA, PORTIA E. 204. MEDINA, NESTOR M. 205. MEDINA, ROLANDO S. 206. MENDAVIA, AVELINO 207. MENDOZA, POTENCIANO G. 208. MIL, RAY M. 209. MIRAVALLES, ANASTACIA L. 210. MONFORTE, EUGENIO, JR. G. 211. MONTANO, ERNESTO F. 212. MONTERO, JUAN M. III 213. MORALDE, ESMERALDO B., JR. 214. MORALES, CONCHITA D. L 215. MORALES, NESTOR P. 216. MORALES, SHIRLEY S. 217. MUNAR, JUANITA L. 218. MU;OZ, VICENTE R. 219. MURILLO, MANUEL M. 220. NACION, PEDRO R. 221. NAGAL, HENRY N. 222. NAVARRO, HENRY L. 223. NEJAL FREDRICK E. 224. NICOLAS, REYNALDO S. 225. NIEVES, RUFINO A. 226. OLAIVAR, SEBASTIAN T. 227. OLEGARIO, LEO Q. 228. ORTEGA, ARLENE R. 229. ORTEGA, JESUS R. 230. OSORIO, ABNER S. 231. PAPIO FLORENTINO T. II 232. PASCUA, ARNULFO A. 233. PASTOR, ROSARIO 234. PELAYO, ROSARIO L. 235. PE;A, AIDA C. 236. PEREZ, ESPERIDION B. 237. PEREZ, JESUS BAYANI M. 238. PRE, ISIDRO A. 239. PRUDENCIADO, EULOGIA S. 240. PUNZALAN, LAMBERTO N. 241. PURA, ARNOLD T. 242. QUINONES, EDGARDO I. 243. QUINTOS, AMADEO C., JR. 244. QUIRAY, NICOLAS C. 245. RAMIREZ, ROBERTO P. 246. RANADA, RODRIGO C. 247. RARAS, ANTONIO A. 248. RAVAL, VIOLETA V. 249. RAZAL, BETTY R. 250. REGALA, PONCE F. 251. REYES, LIBERATO R. 252. REYES, MANUEL E. 253. REYES, NORMA Z. 254. REYES, TELESPORO F. 255. RIVERA, ROSITA L. 256. ROCES, ROBERTO V. 257. ROQUE, TERESITA S. 258. ROSANES, MARILOU M. 259. ROSETE, ADAN I. 260. RUANTO, REY CRISTO C., JR. 261. SABLADA, PASCASIO G. 262. SALAZAR, SILVERIA S. 263. SALAZAR, VICTORIA A. 264. SALIMBACOD, PERLITA C. 265. SALMINGO, LOURDES M. 266. SANTIAGO, EMELITA B. 267. SATINA, PORFIRIO C. 268. SEKITO, COSME B JR. 269. SIMON, RAMON P. 270. SINGSON, MELENCIO C. 271. SORIANO, ANGELO L. 272. SORIANO, MAGDALENA R. 273. SUNICO, ABELARDO T . 274. TABIJE, EMMA B. 275. TAN, RUDY GOROSPE 276. TAN, ESTER S.

277. TAN, JULITA S. 278. TECSON, BEATRIZ B. 279. TOLENTINO, BENIGNO A. 280. TURINGAN, ENRICO T JR. 281. UMPA, ALI A. 282. VALIC, LUCIO E. 283. VASQUEZ, NICANOR B. 284. VELARDE, EDGARDO C. 285. VERA, AVELINO A. 286. VERAME, OSCAR E. 287. VIADO, LILIAN T. 288. VIERNES, NAPOLEON K 289. VILLALON, DENNIS A. 290. VILLAR, LUZ L. 291. VILLALUZ, EMELITO V. 292. VILLAR, LUZ L. 293. ZATA, ANGELA JR. 294. ACHARON, CRISTETO 295. ALBA, RENATO B. 296. AMON, JULITA C. 297. AUSTRIA, ERNESTO C. 298. CALO, RAYMUNDO M. 299. CENTENO, BENJAMIN R. 300. DONATO, ESTELITA P. 301. DONATO, FELIPE S 302. FLORES, PEDRITO S. 303. GALAROSA, RENATO 304. MALAWI, MAUYAG 305. MONTENEGRO, FRANSISCO M. 306. OMEGA, PETRONILO T. 307. SANTOS, GUILLERMO P. 308. TEMPLO, CELSO 309. VALDERAMA, JAIME B. 310. VALDEZ, NORA M. Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the petitioner in G.R. No. 81967; Messrs. Adolfo Caserano Pacifico Lagleva Julian C. Espiritu, Dennis A. Azarraga Renato de Jesus, Nicasio C. Gamboa, Mesdames Corazon Rallos Nieves and Felicitacion R. Geluz Messrs. Leodegario H. Floresca, Subaer Pacasum Ms. Zenaida Lanaria Mr. Jose B. Ortiz, Ms. Gliceria R. Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin Rodriguez, Ms. Daligay Bautista, Messrs. Leonardo Jose, Alberto Lontok, Porfirio Tabino Jose Barredo, Roberto Arnaldo, Ms. Ester Tan, Messrs. Pedro Bakal, Rosario David, Rodolfo Afuang, Lorenzo Catre,, Ms. Leoncia Catre, and Roberto Abaca, are the petitioners in G.R. No. 82023; the last 279 16 individuals mentioned are the private respondents in G.R. No. 85310. As far as the records will likewise reveal, 17 a total of 394 officials and employees of the Bureau of Customs were given individual notices of separation. A number supposedly sought reinstatement with the Reorganization Appeals Board while others went to the Civil Service Commission. The first thirty-one mentioned above came directly to this Court. On June 30, 1988, the Civil Service Commission promulgated its ruling ordering the reinstatement of the 279 employees, the 279 private respondents in G.R. No. 85310, the dispositive portion of which reads as follows: WHEREFORE, it is hereby ordered that: 1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the Bureau of Customs without loss of seniority rights; 2. Appellants be paid their back salaries reckoned from the dates of their illegal termination based on the rates under the approved new staffing pattern but not lower than their former salaries. This action of the Commission should not, however, be interpreted as an exoneration of the appellants from

33

any accusation of wrongdoing and, therefore, their reappointments are without prejudice to: 1. Proceeding with investigation of appellants with pending administrative cases, and where investigations have been finished, to promptly, render the appropriate decisions; 2. The filing of appropriate administrative complaints against appellants with derogatory reports or information if evidence so warrants. SO ORDERED. 18 On July 15, 1988, Commissioner Mison, represented by the Solicitor General, filed a motion for reconsideration Acting on the motion, the Civil Service Commission, on September 20, 1988, denied reconsideration. 19 On October 20, 1988, Commissioner Mison instituted certiorari proceedings with this Court, docketed, as above-stated, as G.R. No. 85310 of this Court. On November 16,1988, the Civil Service Commission further disposed the appeal (from the resolution of the Reorganization Appeals Board) of five more employees, holding as follows: WHEREFORE, it is hereby ordered that: 1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the Bureau of Customs without loss of seniority rights; and 2. Appellants be paid their back salaries to be reckoned from the date of their illegal termination based on the rates under the approved new staffing pattern but not lower than their former salaries. This action of the Commission should not, however, be interpreted as an exoneration of the herein appellants from any accusation of any wrongdoing and therefore, their reappointments are without prejudice to: 1. Proceeding with investigation of appellants with pending administrative cases, if any, and where investigations have been finished, to promptly, render the appropriate decisions; and 2. The filing of appropriate administrative complaints against appellant with derogatory reports or information, if any, and if evidence so warrants. SO ORDERED. 20 On January 6, 1989, Commissioner Mison challenged the Civil Service Commission's Resolution in this Court; his petitioner has been docketed herein as G.R. No. 86241. The employees ordered to be reinstated are Senen Dimaguila, Romeo Arabe, Bemardo Quintong,Gregorio Reyes, and Romulo Badillo. 21 On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION," 22was signed into law. Under Section 7, thereof: Sec. 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation of the provisions of this Act, shall be ordered reinstated or reappointed as the case may be without

loss of seniority and shall be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, including casuals and temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid the appropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from the date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may be: Provided, That application for clearance has been filed and no action thereon has been made by the corresponding department or agency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (1) month salary for every year of service. Such separation pay and retirement benefits shall have priority of payment out of the savings of the department or agency concerned. 23 On June 23, 1988, Benedicto Amasa and William Dionisio, customs examiners appointed by Commissioner Mison pursuant to the ostensible reorganization subject of this controversy, petitioned the Court to contest the validity of the statute. The petition is docketed as G.R. No. 83737. On October 21, 1988, thirty-five more Customs officials whom the Civil Service Commission had ordered reinstated by its June 30,1988 Resolution filed their own petition to compel the Commissioner of Customs to comply with the said Resolution. The petition is docketed as G.R. No. 85335. On November 29, 1988, we resolved to consolidate all seven petitions. On the same date, we resolved to set the matter for hearing on January 12, 1989. At the said hearing, the parties, represented by their counsels (a) retired Justice Ruperto Martin; (b) retired Justice Lino Patajo. (c) former Dean Froilan Bacungan (d) Atty. Lester Escobar (e) Atty. Faustino Tugade and (f) Atty. Alexander Padilla, presented their arguments. Solicitor General Francisco Chavez argued on behalf of the Commissioner of Customs (except in G.R. 85335, in which he represented the Bureau of Customs and the Civil Service Commission).lwph1.t Former Senator Ambrosio Padilla also appeared and argued as amicus curiae Thereafter, we resolved to require the parties to submit their respective memoranda which they did in due time. There is no question that the administration may validly carry out a government reorganization insofar as these cases are concerned, the reorganization of the Bureau of Customs by mandate not only of the Provisional Constitution, supra, but also of the various Executive Orders decreed by the Chief Executive in her capacity as sole lawmaking authority under the 1986-1987 revolutionary government. It should also be noted that under the present Constitution, there is a recognition, albeit implied, that a government reorganization may be legitimately undertaken, subject to certain conditions. 24 The Court understands that the parties are agreed on the validity of a reorganization per se the only question being, as shall be later seen: What is the nature and extent of this government reorganization? The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain parties to sue, 25 and other technical objections, for two reasons, "[b]ecause of the demands of public interest, including the need for stability in the public service,"26 and because of the serious implications of these cases on the administration of the Philippine civil service and the rights of public servants. The urgings in G.R. Nos. 85335 and 85310, that the Civil Service Commission's Resolution dated June 30, 1988 had attained a character of finality for failure of Commissioner Mison to apply for judicial review or ask for reconsideration seasonalbly under Presidential Decree No. 807, 27 or under Republic Act No.

34

6656, 28 or under the Constitution, 29 are likewise rejected. The records show that the Bureau of Customs had until July 15, 1988 to ask for reconsideration or come to this Court pursuant to Section 39 of Presidential Decree No. 807. The records likewise show that the Solicitor General filed a motion for reconsideration on July 15, 1988.30 The Civil Service Commission issued its Resolution denying reconsideration on September 20, 1988; a copy of this Resolution was received by the Bureau on September 23, 1988.31 Hence the Bureau had until October 23, 1988 to elevate the matter on certiorari to this Court.32 Since the Bureau's petition was filed on October 20, 1988, it was filed on time. We reject, finally, contentions that the Bureau's petition (in G.R. 85310) raises no jurisdictional questions, and is therefore bereft of any basis as a petition for certiorari under Rule 65 of the Rules of Court. 33 We find that the questions raised in Commissioner Mison's petition (in G.R. 85310) are, indeed, proper for certiorari, if by "jurisdictional questions" we mean questions having to do with "an indifferent disregard of the law, arbitrariness and caprice, or omission to weigh pertinent considerations, a decision arrived at without rational deliberation, 34 as distinguished from questions that require "digging into the merits and unearthing errors of judgment 35 which is the office, on the other hand, of review under Rule 45 of the said Rules. What cannot be denied is the fact that the act of the Civil Service Commission of reinstating hundreds of Customs employees Commissioner Mison had separated, has implications not only on the entire reorganization process decreed no less than by the Provisional Constitution, but on the Philippine bureaucracy in general; these implications are of such a magnitude that it cannot be said that assuming that the Civil Service Commission erred the Commission committed a plain "error of judgment" that Aratuc says cannot be corrected by the extraordinary remedy of certiorari or any special civil action. We reaffirm the teaching of Aratuc as regards recourse to this Court with respect to rulings of the Civil Service Commission which is that judgments of the Commission may be brought to the Supreme Court through certiorari alone, under Rule 65 of the Rules of Court. In Aratuc we declared: It is once evident from these constitutional and statutory modifications that there is a definite tendency to enhance and invigorate the role of the Commission on Elections as the independent constitutional body charged with the safeguarding of free, peaceful and honest elections. The framers of the new Constitution must be presumed to have definite knowledge of what it means to make the decisions, orders and rulings of the Commission "subject to review by the Supreme Court'. And since instead of maintaining that provision intact, it ordained that the Commission's actuations be instead 'brought to the Supreme Court on certiorari", We cannot insist that there was no intent to change the nature of the remedy, considering that the limited scope of certiorari, compared to a review, is well known in remedial law.36 We observe no fundamental difference between the Commission on Elections and the Civil Service Commission (or the Commission on Audit for that matter) in terms of the constitutional intent to leave the constitutional bodies alone in the enforcement of laws relative to elections, with respect to the former, and the civil service, with respect to the latter (or the audit of government accounts, with respect to the Commission on Audit). As the poll body is the "sole judge" 37 of all election cases, so is the Civil Service Commission the single arbiter of all controversies pertaining to the civil service. It should also be noted that under the new Constitution, as under the 1973 Charter, "any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari," 38 which, as Aratuc tells us, "technically connotes something less than saying that the same 'shall be subject to review by the Supreme Court,' " 39 which in turn suggests an appeal by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service

Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount to lack or excess of jurisdiction, complaints that justify certiorari under Rule 65. While Republic Act No. 6656 states that judgments of the Commission are "final and executory"40 and hence, unappealable, under Rule 65, certiorari precisely lies in the absence of an appeal. 41 Accordingly, we accept Commissioner Mison petition (G.R. No. 85310) which clearly charges the Civil Service Commission with grave abuse of discretion, a proper subject of certiorari, although it may not have so stated in explicit terms. As to charges that the said petition has been filed out of time, we reiterate that it has been filed seasonably. It is to be stressed that the Solicitor General had thirty days from September 23, 1988 (the date the Resolution, dated September 20,1988, of the Civil Service Commission, denying reconsideration, was received) to commence the instant certiorari proceedings. As we stated, under the Constitution, an aggrieved party has thirty days within which to challenge "any decision, order, or ruling" 42 of the Commission. To say that the period should be counted from the Solicitor's receipt of the main Resolution, dated June 30, 1988, is to say that he should not have asked for reconsideration But to say that is to deny him the right to contest (by a motion for reconsideration) any ruling, other than the main decision, when, precisely, the Constitution gives him such a right. That is also to place him at a "no-win" situation because if he did not move for a reconsideration, he would have been faulted for demandingcertiorari too early, under the general rule that a motion for reconsideration should preface a resort to a special civil action. 43 Hence, we must reckon the thirty-day period from receipt of the order of denial. We come to the merits of these cases. G.R. Nos. 81954, 81967, 82023, and 85335: The Case for the Employees The petitioner in G.R. No. 81954, Cesar Dario was one of the Deputy Commissioners of the Bureau of Customs until his relief on orders of Commissioner Mison on January 26, 1988. In essence, he questions the legality of his dismiss, which he alleges was upon the authority of Section 59 of Executive Order No. 127, supra, hereinbelow reproduced as follows: SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers and employees of the Ministry shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from government service pursuant to Executive Order No. 17 (1986) or Article III of the Freedom Constitution. The new position structure and staffing pattern of the Ministry shall be approved and prescribed by the Minister within one hundred twenty (120) days from the approval of this Executive Order and the authorized positions created hereunder shall be filled with regular appointments by him or by the President, as the case may be. Those incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service. Those separated from the service shall receive the retirement benefits to which they may be entitled under existing laws, rules and regulations. Otherwise, they shall be paid the equivalent of one month basic salary for every year of service, or the equivalent nearest fraction thereof favorable to them on the basis of highest salary received but in no case shall such payment exceed the equivalent of 12 months salary.

35

No court or administrative body shall issue any writ of preliminary injunction or restraining order to enjoin the separation/replacement of any officer or employee effected under this Executive Order.44 a provision he claims the Commissioner could not have legally invoked. He avers that he could not have been legally deemed to be an "[incumbent] whose [position] [is] not included therein or who [is] not reappointed"45 to justify his separation from the service. He contends that neither the Executive Order (under the second paragraph of the section) nor the staffing pattern proposed by the Secretary of Finance 46 abolished the office of Deputy Commissioner of Customs, but, rather, increased it to three. 47 Nor can it be said, so he further maintains, that he had not been "reappointed" 48 (under the second paragraph of the section) because "[[r]eappointment therein presupposes that the position to which it refers is a new one in lieu of that which has been abolished or although an existing one, has absorbed that which has been abolished." 49 He claims, finally, that under the Provisional Constitution, the power to dismiss public officials without cause ended on February 25, 1987,50 and that thereafter, public officials enjoyed security of tenure under the provisions of the 1987 Constitution.51 Like Dario Vicente Feria, the petitioner in G.R. No. 81967, was a Deputy Commissioner at the Bureau until his separation directed by Commissioner Mison. And like Dario he claims that under the 1987 Constitution, he has acquired security of tenure and that he cannot be said to be covered by Section 59 of Executive Order No. 127, having been appointed on April 22, 1986 during the effectivity of the Provisional Constitution. He adds that under Executive Order No. 39, "ENLARGING THE POWERS AND FUNCTIONS OF THE COMMISSIONER OF CUSTOMS,"52 the Commissioner of Customs has the power "[t]o appoint all Bureau personnel, except those appointed by the President," 53 and that his position, which is that of a Presidential appointee, is beyond the control of Commissioner Mison for purposes of reorganization. The petitioners in G.R. No. 82023, collectors and examiners in venous ports of the Philippines, say, on the other hand, that the purpose of reorganization is to end corruption at the Bureau of Customs and that since there is no finding that they are guilty of corruption, they cannot be validly dismissed from the service. The Case for Commissioner Mison In his comments, the Commissioner relies on this Court's resolution in Jose v. Arroyo54 in which the following statement appears in the last paragraph thereof: The contention of petitioner that Executive Order No. 127 is violative of the provision of the 1987 Constitution guaranteeing career civil service employees security of tenure overlooks the provisions of Section 16, Article XVIII (Transitory Provisions) which explicitly authorize the removal of career civil service employees "not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution." By virtue of said provision, the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratification of the Constitution, and career civil service employees may be separated from the service without cause as a result of such reorganization.55 For this reason, Mison posits, claims of violation of security of tenure are allegedly no defense. He further states that the deadline prescribed by the Provisional Constitution (February 25, 1987) has been superseded by the 1987 Constitution, specifically, the transitory provisions thereof, 56 which allows a reorganization thereafter (after February 25, 1987) as this very Court has so declared in Jose v. Arroyo. Mison submits that contrary to the employees' argument, Section 59 of Executive Order No. 127 is applicable (in particular, to Dario and Feria in the sense that retention in the Bureau, under the Executive

Order, depends on either retention of the position in the new staffing pattern or reappointment of the incumbent, and since the dismissed employees had not been reappointed, they had been considered legally separated. Moreover, Mison proffers that under Section 59 incumbents are considered on holdover status, "which means that all those positions were considered vacant." 57The Solicitor General denies the applicability of PalmaFernandez v. De la Paz 58 because that case supposedly involved a mere transfer and not a separation. He rejects, finally, the force and effect of Executive Order Nos. 17 and 39 for the reason that Executive Order No. 17, which was meant to implement the Provisional Constitution, 59had ceased to have force and effect upon the ratification of the 1987 Constitution, and that, under Executive Order No. 39, the dismissals contemplated were "for cause" while the separations now under question were "not for cause" and were a result of government reorganize organization decreed by Executive Order No. 127. Anent Republic Act No. 6656, he expresses doubts on the constitutionality of the grant of retroactivity therein (as regards the reinforcement of security of tenure) since the new Constitution clearly allows reorganization after its effectivity. G.R. Nos. 85310 and 86241 The Position of Commissioner Mison Commissioner's twin petitions are direct challenges to three rulings of the Civil Service Commission: (1) the Resolution, dated June 30, 1988, reinstating the 265 customs employees abovestated; (2) the Resolution, dated September 20, 1988, denying reconsideration; and (3) the Resolution, dated November 16, 1988, reinstating five employees. The Commissioner's arguments are as follows: 1. The ongoing government reorganization is in the nature of a "progressive" 60 reorganization "impelled by the need to overhaul the entire government bureaucracy" 61 following the people power revolution of 1986; 2. There was faithful compliance by the Bureau of the various guidelines issued by the President, in particular, as to deliberation, and selection of personnel for appointment under the new staffing pattern; 3. The separated employees have been, under Section 59 of Executive Order No. 127, on mere holdover standing, "which means that all positions are declared vacant;" 62 4. Jose v. Arroyo has declared the validity of Executive Order No. 127 under the transitory provisions of the 1987 Constitution; 5. Republic Act No. 6656 is of doubtful constitutionality. The Ruling of the Civil Service Commission The position of the Civil Service Commission is as follows: 1. Reorganizations occur where there has been a reduction in personnel or redundancy of functions; there is no showing that the reorganization in question has been carried out for either purpose on the contrary, the dismissals now disputed were carried out by mere service of notices; 2. The current Customs reorganization has not been made according to Malaca;ang guidelines; information on file with the Commission shows that Commissioner Mison has been appointing unqualified personnel; 3. Jose v. Arroyo, in validating Executive Order No. 127, did not countenance illegal removals; 4. Republic Act No. 6656 protects security of tenure in the course of reorganizations.

36

The Court's ruling Reorganization, Fundamental Principles of. I. The core provision of law involved is Section 16 Article XVIII, of the 1987 Constitution. We quote: Sec. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shag be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieul thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted. 63 The Court considers the above provision critical for two reasons: (1) It is the only provision in so far as it mentions removals not for cause that would arguably support the challenged dismissals by mere notice, and (2) It is the single existing law on reorganization after the ratification of the 1987 Charter, except Republic Act No. 6656, which came much later, on June 10, 1988. [Nota been Executive Orders No. 116 (covering the Ministry of Agriculture & Food), 117 (Ministry of Education, Culture & Sports), 119 (Health), 120 (Tourism), 123 (Social Welfare & Development), 124 (Public Works & Highways), 125 transportation & Communications), 126 (Labor & Employment), 127 (Finance), 128 (Science & Technology), 129 (Agrarian Reform), 131 (Natural Resources), 132 (Foreign Affairs), and 133 (Trade & Industry) were all promulgated on January 30,1987, prior to the adoption of the Constitution on February 2, 1987].64 It is also to be observed that unlike the grants of power to effect reorganizations under the past Constitutions, the above provision comes as a mere recognition of the right of the Government to reorganize its offices, bureaus, and instrumentalities. Under Section 4, Article XVI, of the 1935 Constitution: Section 4. All officers and employees in the existing Government of the Philippine Islands shall continue in office until the Congress shall provide otherwise, but all officers whose appointments are by this Constitution vested in the President shall vacate their respective office(s) upon the appointment and qualification of their successors, if such appointment is made within a period of one year from the date of the inauguration of the Commonwealth of the Philippines. 65 Under Section 9, Article XVII, of the 1973 Charter: Section 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office until otherwise provided by law or decreed by the incumbent President of the Philippines, but all officials whose appointments are by this Constitution vested in the Prime Minister shall vacate their respective offices upon the appointment and qualification of their successors. 66 The Freedom Constitution is, as earlier seen, couched in similar language: SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the appointment and

qualification of their successors, if such is made within a period of one year from February 25, 1986.67 Other than references to "reorganization following the ratification of this Constitution," there is no provision for "automatic" vacancies under the 1987 Constitution. Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure. At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the Constitution) as a result of reorganization carried out by reason of economy or to remove redundancy of functions. In the latter case, the Government is obliged to prove good faith.68 In case of removals undertaken to comply with clear and explicit constitutional mandates, the Government is not hard put to prove anything, plainly and simply because the Constitution allows it. Evidently, the question is whether or not Section 16 of Article XVIII of the 1987 Constitution is a grant of a license upon the Government to remove career public officials it could have validly done under an "automatic" vacancy-authority and to remove them without rhyme or reason. As we have seen, since 1935, transition periods have been characterized by provisions for "automatic" vacancies. We take the silence of the 1987 Constitution on this matter as a restraint upon the Government to dismiss public servants at a moment's notice. What is, indeed, apparent is the fact that if the present Charter envisioned an "automatic" vacancy, it should have said so in clearer terms, as its 1935, 1973, and 1986 counterparts had so stated. The constitutional "lapse" means either one of two things: (1) The Constitution meant to continue the reorganization under the prior Charter (of the Revolutionary Government), in the sense that the latter provides for "automatic" vacancies, or (2) It meant to put a stop to those 'automatic" vacancies. By itself, however, it is ambiguous, referring as it does to two stages of reorganization the first, to its conferment or authorization under Proclamation No. 3 (Freedom Charter) and the second, to its implementation on its effectivity date (February 2, 1987).lwph1.t But as we asserted, if the intent of Section 16 of Article XVIII of the 1987 Constitution were to extend the effects of reorganize tion under the Freedom Constitution, it should have said so in clear terms. It is illogical why it should talk of two phases of reorganization when it could have simply acknowledged the continuing effect of the first reorganization. Second, plainly the concern of Section 16 is to ensure compensation for victims" of constitutional revamps whether under the Freedom or existing Constitution and only secondarily and impliedly, to allow reorganization. We turn to the records of the Constitutional Commission: INQUIRY OF MR. PADILLA On the query of Mr. Padilla whether there is a need for a specific reference to Proclamation No. 3 and not merely state "result of the reorganization following the ratification of this Constitution', Mr. Suarez, on behalf of the Committee, replied that it is necessary, inasmuch as there are two stages of reorganization covered by the Section. Mr. Padilla pointed out that since the proposal of the Commission on Government Reorganization have not been implemented yet, it would be better to use the phrase "reorganization before or after the ratification of the Constitution' to simplify the Section. Mr. Suarez

37

instead suggested the phrase "as a result of the reorganization effected before or after the ratification of the Constitution' on the understanding that the provision would apply to employees terminated because of the reorganization pursuant to Proclamation No. 3 and even those affected by the reorganization during the Marcos regime. Additionally, Mr. Suarez pointed out that it is also for this reason that the Committee specified the two Constitutions the Freedom Constitution and the 1986 [1987] Constitution. 69 Simply, the provision benefits career civil service employees separated from the service. And the separation contemplated must be due to or the result of (1) the reorganization pursuant to Proclamation No. 3 dated March 25, 1986, (2) the reorganization from February 2, 1987, and (3) the resignations of career officers tendered in line with the existing policy and which resignations have been accepted. The phrase "not for cause" is clearly and primarily exclusionary, to exclude those career civil service employees separated "for cause." In other words, in order to be entitled to the benefits granted under Section 16 of Article XVIII of the Constitution of 1987, two requisites, one negative and the other positive, must concur, to wit: 1. the separation must not be for cause, and 2. the separation must be due to any of the three situations mentioned above. By its terms, the authority to remove public officials under the Provisional Constitution ended on February 25, 1987, advanced by jurisprudence to February 2, 1987. 70 It Can only mean, then, that whatever reorganization is taking place is upon the authority of the present Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it can not be legitimately stated that we are merely continuing what the revolutionary Constitution of the Revolutionary Government had started. We are through with reorganization under the Freedom Constitution the first stage. We are on the second stage that inferred from the provisions of Section 16 of Article XVIII of the permanent basic document. This is confirmed not only by the deliberations of the Constitutional Commission, supra, but is apparent from the Charter's own words. It also warrants our holding in Esguerra and Palma-Fernandez, in which we categorically declared that after February 2, 1987, incumbent officials and employees have acquired security of tenure, which is not a deterrent against separation by reorganization under the quondam fundamental law. Finally, there is the concern of the State to ensure that this reorganization is no "purge" like the execrated reorganizations under martial rule. And, of course, we also have the democratic character of the Charter itself. Commissioner Mison would have had a point, insofar as he contends that the reorganization is open-ended ("progressive"), had it been a reorganization under the revolutionary authority, specifically of the Provisional Constitution. For then, the power to remove government employees would have been truly wide ranging and limitless, not only because Proclamation No. 3 permitted it, but because of the nature of revolutionary authority itself, its totalitarian tendencies, and the monopoly of power in the men and women who wield it. What must be understood, however, is that notwithstanding her immense revolutionary powers, the President was, nevertheless, magnanimous in her rule. This is apparent from Executive Order No. 17, which established safeguards against the strong arm and ruthless propensity that accompanies reorganizations notwithstanding the fact that removals arising therefrom were "not for cause," and in spite of the fact that such removals would have been valid and unquestionable. Despite that, the Chief Executive saw, as we said, the "unnecessary anxiety and demoralization" in the government rank and file that

reorganization was causing, and prescribed guidelines for personnel action. Specifically, she said on May 28, 1986: WHEREAS, in order to obviate unnecessary anxiety and demoralization among the deserving officials and employees, particularly in the career civil service, it is necessary to prescribe the rules and regulations for implementing the said constitutional provision to protect career civil servants whose qualifications and performance meet the standards of service demanded by the New Government, and to ensure that only those found corrupt, inefficient and undeserving are separated from the government service; 71 Noteworthy is the injunction embodied in the Executive Order that dismissals should be made on the basis of findings of inefficiency, graft, and unfitness to render public service.* The President's Memorandum of October 14, 1987 should furthermore be considered. We quote, in part: Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further layoffs this year of personnel as a result of the government reorganization. 72 Assuming, then, that this reorganization allows removals "not for cause" in a manner that would have been permissible in a revolutionary setting as Commissioner Mison so purports, it would seem that the Commissioner would have been powerless, in any event, to order dismissals at the Customs Bureau left and right. Hence, even if we accepted his "progressive" reorganization theory, he would still have to come to terms with the Chief Executive's subsequent directives moderating the revolutionary authority's plenary power to separate government officials and employees. Reorganization under the 1987 Constitution, Nature, Extent, and Limitations of; Jose v. Arroyo, clarified. The controversy seems to be that we have, ourselves, supposedly extended the effects of government reorganization under the Provisional Constitution to the regime of the 1987 Constitution. Jose v. Arroyo73 is said to be the authority for this argument. Evidently, if Arroyo indeed so ruled, Arroyo would be inconsistent with the earlier pronouncement of Esguerra and the later holding of Palma-Fernandez. The question, however, is: Did Arroyo, in fact, extend the effects of reorganization under the revolutionary Charter to the era of the new Constitution? There are a few points about Arroyo that have to be explained. First, the opinion expressed therein that "[b]y virtue of said provision the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratification of this constitution and career civil service employees may be separated from the service without cause as a result of such reorganization" 74 is in the nature of an obiter dictum. We dismissed Jose's petition 75 primarily because it was "clearly premature, speculative, and purely anticipatory, based merely on newspaper reports which do not show any direct or threatened injury," 76 it appearing that the reorganization of the Bureau of Customs had not been, then, set in motion. Jose therefore had no cause for complaint, which was enough basis to dismiss the petition. The remark anent separation "without cause" was therefore not necessary for the disposition of the case. In Morales v. Parades,77 it was held that an obiter dictum "lacks the force of an adjudication and should not ordinarily be regarded as such." 78 Secondly, Arroyo is an unsigned resolution while Palma Fernandez is a full-blown decision, although both are en banc cases. While a resolution of the Court is no less forceful than a decision, the latter has a special weight. Thirdly, Palma-Fernandez v. De la Paz comes as a later doctrine. (Jose v. Arroyo was promulgated on August 11, 1987 while Palma-Fernandez was decided on August 31, 1987.) It is

38

well-established that a later judgment supersedes a prior one in case of an inconsistency. As we have suggested, the transitory provisions of the 1987 Constitution allude to two stages of the reorganization, the first stage being the reorganization under Proclamation No. 3 which had already been consummated the second stage being that adverted to in the transitory provisions themselves which is underway. Hence, when we spoke, in Arroyo, of reorganization after the effectivity of the new Constitution, we referred to the second stage of the reorganization. Accordingly, we cannot be said to have carried over reorganization under the Freedom Constitution to its 1987 counterpart. Finally, Arroyo is not necessarily incompatible with PalmaFernandez (or Esguerra). As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as stern as reorganization under the prior Charter. Whereas the latter, sans the President's subsequently imposed constraints, envisioned a purgation, the same cannot be said of the reorganization inferred under the new Constitution because, precisely, the new Constitution seeks to usher in a democratic regime. But even if we concede ex gratia argumenti that Section 16 is an exception to due process and no-removal-"except for cause provided by law" principles enshrined in the very same 1987 Constitution, 79 which may possibly justify removals "not for cause," there is no contradiction in terms here because, while the former Constitution left the axe to fall where it might, the present organic act requires that removals "not for cause" must be as a result of reorganization. As we observed, the Constitution does not provide for "automatic" vacancies. It must also pass the test of good faith a test not obviously required under the revolutionary government formerly prevailing, but a test wellestablished in democratic societies and in this government under a democratic Charter. When, therefore, Arroyo permitted a reorganization under Executive Order No. 127 after the ratification of the 1987 Constitution, Arroyo permitted a reorganization provided that it is done in good faith. Otherwise, security of tenure would be an insuperable implement. 80 Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. 81 As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat sty of tenure, or otherwise not in good faith, no valid "abolition' takes place and whatever "abolition' is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, 82 or where claims of economy are belied by the existence of ample funds. 83 It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are not, as a consequence, imposing a "cause" for restructuring. Retrenchment in the course of a reorganization in good faith is still removal "not for cause," if by "cause" we refer to "grounds" or conditions that call for disciplinary action.** Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case. However, under Republic Act No. 6656, we are told: SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order

to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished and another performing substantially the same functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; (e) Where the removal violates the order of separation provided in Section 3 hereof. 84 It is in light hereof that we take up questions about Commissioner Mison's good faith, or lack of it. Reorganization of the Bureau of Customs, Lack of Good Faith in. The Court finds that after February 2, 1987 no perceptible restructuring of the Customs hierarchy except for the change of personnel has occurred, which would have justified (an things being equal) the contested dismisses. The contention that the staffing pattern at the Bureau (which would have furnished a justification for a personnel movement) is the same s pattern prescribed by Section 34 of Executive Order No. 127 already prevailing when Commissioner Mison took over the Customs helm, has not been successfully contradicted 85There is no showing that legitimate structural changes have been made or a reorganization actually undertaken, for that matter at the Bureau since Commissioner Mison assumed office, which would have validly prompted him to hire and fire employees. There can therefore be no actual reorganization to speak of, in the sense, say, of reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions, but a revamp of personnel pure and simple. The records indeed show that Commissioner Mison separated about 394 Customs personnel but replaced them with 522 as of August 18, 1988. 86 This betrays a clear intent to "pack" the Bureau of Customs. He did so, furthermore, in defiance of the President's directive to halt further layoffs as a consequence of reorganization. 87Finally, he was aware that layoffs should observe the procedure laid down by Executive Order No. 17. We are not, of course, striking down Executive Order No. 127 for repugnancy to the Constitution. While the act is valid, still and all, the means with which it was implemented is not. 88 Executive Order No. 127, Specific Case of. With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59 thereof, "[t]hose incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service." He submits that because the 394 removed personnel have not been "reappointed," they are considered terminated. To begin with, the Commissioner's appointing power is subject to the provisions of Executive Order No. 39. Under Executive Order No. 39, the Commissioner of Customs may "appoint all Bureau personnel, except those appointed by the President." 89 Accordingly, with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner Mison could not have validly terminated them, they being Presidential appointees. Secondly, and as we have asserted, Section 59 has been rendered inoperative according to our holding in Palma-Fernandez.

39

That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere holdover status cannot mean that the positions held by them had become vacant. In Palma-Fernandez, we said in no uncertain terms: The argument that, on the basis of this provision, petitioner's term of office ended on 30 January 1987 and that she continued in the performance of her duties merely in a hold over capacity and could be transferred to another position without violating any of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to February 2, 1987 when the 1987 Constitution became effective (De Leon. et al., vs. Hon. Benjamin B. Esquerra, et. al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern. 90 It should be seen, finally, that we are not barring Commissioner Mison from carrying out a reorganization under the transitory provisions of the 1987 Constitution. But such a reorganization should be subject to the criterion of good faith. Resume. In resume, we restate as follows: 1. The President could have validly removed government employees, elected or appointed, without cause but only before the effectivity of the 1987 Constitution on February 2, 1987 (De Leon v. Esguerra, supra; Palma-Fernandez vs. De la Paz, supra); in this connection, Section 59 (on non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for termination; 2. In such a case, dismissed employees shall be paid separation and retirement benefits or upon their option be given reemployment opportunities (CONST. [1987], art. XVIII, sec. 16; Rep. Act No. 6656, sec. 9); 3. From February 2, 1987, the State does not lose the right to reorganize the Government resulting in the separation of career civil service employees [CONST. (1987), supra] provided, that such a reorganization is made in good faith. (Rep. Act No. 6656, supra.) G.R. No. 83737 This disposition also resolves G.R. No. 83737. As we have indicated, G.R. No. 83737 is a challenge to the validity of Republic Act No. 6656. In brief, it is argued that the Act, insofar as it strengthens security of tenure 91 and as far as it provides for a retroactive effect, 92 runs counter to the transitory provisions of the new Constitution on removals not for cause. It can be seen that the Act, insofar as it provides for reinstatament of employees separated without "a valid cause and after due notice and hearing" 93 is not contrary to the transitory provisions of the new Constitution. The Court reiterates that although the Charter's transitory provisions mention separations "not for cause," separations thereunder must nevertheless be on account of a valid reorganization and which do not come about automatically. Otherwise, security of tenure may be invoked. Moreover, it can be seen that the statute itself recognizes removals without cause. However, it also acknowledges the possibility of the leadership using the artifice of reorganization to frustrate security of tenure. For this reason, it has installed safeguards. There is nothing unconstitutional about the Act. We recognize the injury Commissioner Mison's replacements would sustain. We also commisserate with them. But our concern is the greater wrong inflicted on the dismissed employees on account of their regal separation from the civil service.

WHEREFORE, THE RESOLUTIONS OF THE CIVIL SERVICE COMMISSION, DATED JUNE 30, 1988, SEPTEMBER 20, 1988, NOVEMBER 16, 1988, INVOLVED IN G.R. NOS. 85310, 85335, AND 86241, AND MAY 8, 1989, INVOLVED IN G.R. NO. 85310, ARE AFFIRMED. THE PETITIONS IN G.R. NOS. 81954, 81967, 82023, AND 85335 ARE GRANTED. THE PETITIONS IN G.R. NOS. 83737, 85310 AND 86241 ARE DISMISSED. THE COMMISSIONER OF CUSTOMS IS ORDERED TO REINSTATE THE EMPLOYEES SEPARATED AS A RESULT OF HIS NOTICES DATED JANUARY 26, 1988. THE EMPLOYEES WHOM COMMISSIONER MISON MAY HAVE APPOINTED AS REPLACEMENTS ARE ORDERED TO VACATE THEIR POSTS SUBJECT TO THE PAYMENT OF WHATEVER BENEFITS THAT MAY BE PROVIDED BY LAW. NO COSTS. IT IS SO ORDERED.

40

G.R. No. L-46585 February 8, 1988 DR. ANGELA V. GINSON, petitioner, vs. MUNICIPALITY OF MURCIA AND MUNICIPAL MAYOR OF MURCIA AND HONORABLE COURT OF APPEALS,respondents. SARMIENTO, J.: Before us is the recurring issue of dismissal of a government employee and challenges presented against its validity. The facts, as found by the trial court, 1 are as follows: On February 16, 1968, or 44 days after defendant Mayor Baldomero de la Rama assumed office as the Municipal Mayor of Murcia, Negros Occidental, he wrote a letter to plaintiff terminating her services as Municipal Dentist of Murcia, Negros Occidental effective February 18, 1968. (Exh. "B"). Said letter was received by the plaintiff on February 16, 1968. Said letter reads as follows: Please be informed that effective February 16, 1968, your service is hereby terminated, due to lack of funds. (SGD.) BALDOMERO DE LA RAMA Municipal Mayor Plaintiff, prior and up to the time she was dismissed, had been continuously, faithfully and efficiently performing her duties as Municipal Dentist of the Municipality of Murcia since August 1, 1964, and was receiving a salary of P200.00 per month. On the very day she was discharged, plaintiff immediately went to the defendant Municipal Mayor Baldomero de la Rama and pleaded that she be reinstated to the service on the ground that her tenure of office is covered by Civil Service Law and that she cannot be removed or suspended except for cause, but defendant de la Rama blatantly refused to reinstate her. Instead she was told and challenged to go to Court and to file a case against him and the Municipality. 2 The trial court held for the petitioner and directed the private respondents to reinstate her in office and to pay back salaries and attorney's fees. On appeal, the respondent Court 3 found that the respondent municipality's financial condition arising from an alleged overdraft incurred during the year, warranted the dismissal, held the same to be justified, and rendered a reversal. The issue that confronts us, then, is one of fact: Whether or not the respondent municipality's state of finances justifies the challenged dismissal. The general rule is that the findings of fact of the Court of Appeals are controlling on this Court. 4 The rule is, however, subject to recognized exceptions, viz: (1) when the findings of the Court of appeals are grounded entirely on speculation, surmise, and conjecture; (2) the inference made is manifestly mistaken; (3) the Court of Appeals committed a grave abuse of discretion; (4) its judgment is based on a misapprehension of facts; (5) it went beyond the issues of the case and its findings contravene the admissions of the parties; (6) its findings of fact are contrary to those of the trial court; (7) the same are conclusions without citations of specific evidence; (8) the facts set forth in the

appellant's brief are not disputed by the appellee; and (9) when the findings of fact of the Court of Appeals are not supported by the evidence or contradicted by the evidence on record. 5 We find serious contradictions characterizing the findings of the lower and the respondent courts, a development that compels us to resort to the records ourselves. In the process, we are constrained to reject the respondent Court's findings. Accordingly, we sustain the trial court, and hold for the petitioner. The Court is convinced that the respondent municipality was financially capable of continued support to the petitioner in office. There is evidence, to begin with, that at the time the petitioner was discharged, the Murcia treasury had existing funds to cover her salary for the month of February, 1968, and for the succeeding months as well, until June, 1968. 6 As of February, 1968 therefore, the Municipality of Murcia had no justifiable reason to plead insolvency. At that time, it had no excuse to effect the questioned dismissal. There is likewise evidence that for the fiscal year 1968-1969, the respondent municipality approved an annual budget of P270,000.00, more than double its budget of Pl54,910.00 for the fiscal year 1967-1968, or an increase of P115,090.00. We agree with the lower court that if the respondent municipality were truly in dire financial straits, "the natural tendency is that there will be a decrease in the appropriations for the ensuing fiscal year. 7 As found furthermore by this trial court, the respondent municipality had, in the same period, approved salary increases to some thirty-one employees. 8 This, again, negates its claims of bankruptcy. There is evidence, finally, that the Municipality of Murcia had extended new items and appointments to a total of six employees at the time the petitioner was removed from the office. 9 These actuations, in our opinion, are inconsistent with pretexts of insolvency. In the premises, we reject the municipality's reliance on its alleged overdraft of P50,000.00 that allegedly led to the dismissal now assailed. We likewise dismiss its contention that the petitioner was not removed from her position but that the termination of her services was the inevitable consequence of the abolition of her item as municipal dentist. 10 The existence of the alleged P50,000,00-deficit was never sufficiently proven. Moreover, if this were the case, it raises disturbing inquiries. For instance, why the salary and budget increases, and the new appointments? It is true that abolition of office neither means removal nor separation from office and is not covered by the protection of the security of tenure clause of the Constitution. 11 This principle, however, carries with it a caveat: That the abolition is done in good faith. 12 Good faith, regrettably, is wanting in this case. The respondents' measures subsequent to the petitioner's dismissal are, rather, indicative of bad faith. In Cruz vs. Primicias Jr., we held: The claim of economy effectuated through the reorganization is belied by the fact that while 72 positions were abolished, 50 of these were actually vacant. Only 22 stations were occupied at the time of the reorganization, carrying total emoluments of P25,538.71 per semester of which P6,120.00 per semester corresponds to the five remaining petitioners (Answer, Exh. 3-C). As against these 22 positions suppressed by the reorganization (Executive Order No. 2),28 new positions were

41

simultaneously created, with a compensation of P87,600.00 per annum, P43,800.00 per semester, for confidential personnel in the office of the Governor (Exh. Order No. 2, par. d). In addition, a Provincial Attorney and his staff (p. 2), and a Personnel Division five members, importing P13,380.00 per semester were set up. Thus, against the suppressed items of P25,538.71, new items carrying a total appropriation of P57,180.00 per semester (or P114,360.00 annually) were created, in addition to P8,000.00 for casual laborers at the discretion of the Governor. Where the economy was the same excuse advanced by the preceding administration when it attempted to eliminate civil service eligibles upon its coming into power (Ocampo, et al. vs. Duque, supra). 13 a holding we reiterate herein. The findings of the respondent Court are moreover in contravention with its own findings in the case of the four policemen the respondents had dismissed on the same occasion. 14 In that case, the respondent court itself dismissed the municipality's pleas of bankruptcy. To say otherwise with respect to this case is indeed, to take inconsistent positions. While the Court of appeals, sitting as a division, is not bound to take judicial notice of decisions of another division, the decision (in G.R. No. 50058-R) was duly brought to the attention of the respondent Court (eighth division), and there was no reason for its obduracy. In sum, we declare the pretended abolition of the dentist's clinic of the Municipality of Murcia to be in fact a flimsy excuse to justify the dismissal of the petitioner, contrary to security of tenure protection of the Constitution, and is hence, null and void. Considering, however, the lapse of time spanning almost twenty years since this controversy rose, and considering the probability that the petitioner might have, in the interim, acquired a new employment, we are constrained to grant her the payment of back salaries equivalent to five (5) years without deduction or qualification. 15 We likewise order her reinstatement, subject to the condition that she has not obtained any other employment, as Murcia municipal dentist or any position for which she is qualified by reason of civil service eligibility, and subject to the requisites of age and physical fitness. 16 We finally, the award of attorney's fees by the lower court in the sum of P1,000.00. The private respondents' liability are declared to be joint and solidary. WHEREFORE, the Petition is GRANTED. The Decision appealed from is REVERSED and SET ASIDE, and a new one is hereby entered, ordering the private respondents, the Municipality of Murcia, Negros Occidental, and the Municipal Mayor of Murcia, to: 1. REINSTATE the petitioner as municipal dentist of the Municipality of Murcia, Negros Occidental, or to any position for which she is qualified pursuant to the Civil Service Law and other rules; 2. PAY unto her back pay equivalent to five (5) years based on her latest salary scale. Costs against the private respondents. This Decision is IMMIDIATELY EXECUTORY. SO ORDERED.

G.R. No. 81928 June 4, 1990 JOSE L. GUERRERO, petitioner, vs. HON. ANTONIO V. ARIZABAL, in his capacity as Secretary of Science and Technology, respondent. GUTIERREZ, JR., J.: The issues raised in these consolidated cases refer to the validity of various reorganization programs in different agencies and/or departments of the government implementing the orders issued pursuant to the President's Proclamation No. 1 declaring as policy the reorganization of the government and Proclamation No. 3 "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION." In addition to the pleadings filed, the parties discussed the basic issues raised in these petitions during the hearings held on January 24 and 31, 1989. I In G.R. No. 78053, the petitioner questions the validity of the March 19, 1987 letter-order of the then Secretary of Education, Culture and Sports (DECS) Lourdes R. Quisumbing which terminated his employment as Schools Division Superintendent of Surigao City. Petitioner Mendoza was the Schools Division Superintendent of Surigao City who, on June 4, 1986, was reappointed by respondent Quisumbing as such with a "PERMANENT" status. He has served the Department of Education for forty-two (42) years, moving up the ranks in the public schools system. On January 30, 1987, Executive Order No. 117 was issued by the President reorganizing the DECS. In a letter dated March 19, 1987, the petitioner received the letter-order informing him that pursuant to Executive Order No. 117 which provides for a reorganization of the DECS and the implementing guidelines thereof he would be considered separated from the service effective April 15,1987 without prejudice to availment of benefits. The letter particularly stated that consistent with the mandate of reorganization to achieve greater efficiency and effectiveness, all incumbent officials/personnel are on 'holdover' status unless advised otherwise. In his place, Secretary Quisumbing appointed Dr. Socorro L. Sering, on a permanent status on March 2, 1988. In the meantime, the petitioner, in a letter dated April 2, 1987, wrote Secretary Quisumbing requesting reconsideration of the letterorder. The letter was forwarded to the Reorganization Appeals Board (RAB). The motion for reconsideration remained unacted upon, hence on June 24, 1987, the petitioner filed the instant petition for certiorari, prohibition and mandamus with preliminary injunction. In a resolution dated September 19, 1988, the RAB recommended that action on the petitioner's letterreconsideration be deferred pending resolution of the instant petition. In G.R. No. 78525, the petitioners are tourism employees who question the legality of Executive Order No. 120 and the consequent alleged illegal act of the public respondents in summarily terminating their services. The twenty-eight (28) petitioners were all permanent employees (with services ranging from 27 years to 3 years) of the Department of Tourism (DOT). All the petitioners had no pending administrative cases and some of them have received numerous citations for meritorious services. On January 20, 1987, the President issued Executive Order No. 120 reorganizing the Ministry of Tourism "structurally and functionally." Section 26 thereof decrees the abolition of Tourism Services and Bureau of Tourism Promotions while Section 29 provides that the incumbents whose positions are not included in the new staffing pattern or who are not reappointed shall be deemed separated from the service, but they shall receive retirement benefits and separation pay. On March 19, 1987, respondent Undersecretary Sostenes Campillo, Jr., issued a Memorandum which in effect stated that pursuant to Executive Order No. 120 the implementation of the reorganization program

42

shall be effected starting March 19, 1987; that all positions are declared vacant; and that all employees are considered in a holdover capacity. On April 13, 1987, respondent Campillo, Jr., in his capacity as acting secretary issued a memorandum notifying all employees of the DOT that thirty (30) days from said date, or on May 13, 1987, termination orders will be effected. On May 14 and May 28, 1987, the petitioners were served their termination papers. They now seek the issuance of a writ of mandamus to compel the public respondents to reinstate them to their respective positions and a writ of prohibition to enjoin said respondents from implementing Executive Order No. 120. They state that they are career civil servants who were summarily and unceremoniously separated from employment without due process. In G.R. No. 81197, the eighty-four (84) petitioners are personnel of the Office of the Press Secretary who question their dismissal from the government service pursuant to what they allege is an unconstitutional reorganization law (Executive Order No. 297) and the likewise alleged unconstitutional implementing order issued by respondent, then Press Secretary Teodoro Benigno. On July 25, 1987, the President issued Executive Order No. 297 which reorganized the Office of the Press Secretary (OPS). Section 13 of the law provides for the merger of the Bureau of Broadcast and Radyo ng Bayan into the Bureau of Broadcast Services (BBS). On August 27, 1987, the then Press Secretary issued OPS Department Order No. 1 creating tile Reorganization Committee and Placement Committee to set guidelines in the implementation of the reorganization program. The Reorganization Committee was created to oversee and set the directions for the reorganization while the Placement Committee which was created in each Bureau was tasked to assist the appointing authority in the selection and placement of personnel. One of the criteria to be observed in the hiring process was the taking of oral and written examinations to be administered by OPS through the Development Academy of the Philippines (DAP) with a representative from the Civil Service Commission in attendance. It was further provided that those who will not take the examinations will automatically lose the percentage alloted to the examinations in the rating process. In the meantime, a new position structure and staffing pattern was prepared retaining only around 333 positions of the nearly 770 regular employees of BBS. The new staffing pattern was approved on October 5, 1987 and implemented on November 1, 1987. The affected employees whose positions were abolished appealed to the Press Secretary to withdraw the proposed staffing pattern and to create a committee from the BBS officials' rank to prepare a new staffing pattern. The request was denied and instead an order was issued that everybody must re-apply and undergo the oral and written examinations provided for in the OPS Department Order No. 1. The original (32) petitioners who were mostly permanent and regular civil service employees of the BBS with more than ten (10) years of government service refused to take the examinations. The then Press Secretary wrote the petitioners that their "services shall be considered only until December 31, 1987." On January 8, 1988, the thirty-two (32) petitioners filed the instant petition for certiorari, prohibition and mandamus with preliminary injunction and/or restraining order. A supplemental petition was filed by thirty-six (36) First Intervenors and sixteen (1 6) Second Intervenors. The First Intervenors group was composed of permanent civil service employees who took the examination but were uniformly informed that "due to the limited number of positions" they were considered employees only until January 31, 1988. The Second Intervenors were temporary employees with most of them being

in the government service for more than fifteen (15) years whose temporary appointments were extended only until July 31, 1987 "due to the ongoing reorganization." In G.R. No. 81495, petitioners Secretary of the Department of Science and Technology (DOST), and Director and members of the Reorganization Evaluation Committee of the Philippine Nuclear Research Institute (PNRI) ask for the annulment of the orders dated December 27, 1987 and January 15, 1988 of the Regional Trial Court, Branch 97, Quezon City which restrained the petitioners from dismissing the private respondents and from implementing the reorganization scheme of the PNRI under Executive Order No. 128 and granted the private respondent's application for a writ of preliminary injunction. The forty-one (41) private respondents were employees of the Philippine Atomic Energy Commission (PAEC). Some of them have been in the government service for more than twenty (20) years, others for more than ten (10) years and almost all of them are college graduates, holding permanent positions and are civil service eligibles. On January 30, 1987, the President issued Executive Order No. 128 reorganizing the DOST. Section 21 of the order provides for the reorganization of the PAEC into the PNRI. On April 24, 1987, the DOST Secretary issued Memorandum Circular No. 001 which created the Placement Committee. On May 5, 1987, Memorandum Circular No. 002 was issued which provided for guidelines on the evaluation and selection of officers and employees. In the meantime in April, 1987, the DOST new position structure and staffing pattern which reduced the number of positions from 6,029 to 5,568 was approved by the DOST Secretary. On September 25, 1987, the Department of Budget and Management likewise approved the new position structure and staffing pattern. On December 18, 1987, a list of employees to be retained under the new position structure of the PNRI was posted in the PNRI premises. Those excluded were placed in a manpower pool for possible placements in other DOST agencies. Thereafter, appointments under the new staffing pattern were issued and subsequently submitted to the Civil Service Commission. On December 28, 1987, the private respondents whose positions were not included in the PNRI position structure and staffing pattern filed a complaint with the respondent trial court for "Injunction with Prayer for the Issuance of Writ of Preliminary Order" alleging that the termination of their services violated their right to security of tenure; that there is a time limit of one (1) year from February 25, 1986 to implement the reorganization (Article Ill, Section 2, Freedom Constitution); and that the Freedom Constitution has been superseded by the 1987 Constitution and is no longer operative. Acting on the complaint, the respondent court issued the questioned orders. In G.R. No. 81928, petitioner Jose L. Guerrero assails his termination as Director of the Science Promotion Institute (SPI) a regular line agency of the Department of Science and Technology (DOST) and seeks reinstatement and assignment to any position closest to his old position in terms of functions, duties, salary emoluments and privileges and without diminution of his rank, salary and privileges as of September 24, 1987. Section 35 (d) of Executive Order No. 128 provides for the abolition of SPI and in lieu thereof creates the Science Education Institute (SEI) and Science and Technology Information Institute (STII). It is also provided-therein that SPI's "appropriation fund, records, equipment, facilities, chases in action, rights, other

43

assets, personnel as may be necessary and liabilities if any'" shall be transferred to SEI and STII. On September 24, 1987, the then Secretary designated Mr. Benjamin Damian as officer-in-charge of the newly created STII. After the new position structure and staffing pattern of DOST was approved by both the DOST Secretary and the Department of Budget and Management, the petitioner received a letter dated September 25, 1987 from the DOST Secretary which notified him that since the SPI was abolished by Executive Order No. 128, his position as Director no longer exists. The file his retirement application. In Secretary advised him to another letter dated September 30, 1987 from the Secretary, the petitioner was directed to turn over all property, equipment and funds in his custody to the Officer-in-Charge of STII. The petitioner had held the position since June, 1982. On September 25, 19877 Damian entered the SPI and since then the petitioner has been kept out of his office and denied salaries, allowances and emoluments. On February 19, 1988, the petitioner filed the instant petition with preliminary mandatory injunction. He accuses the DOST Secretary of grave abuse of discretion in terminating his services and alleges that his termination was a violation of his right to security of tenure. He contends that the functions of the old office are Identical to the functions of the two new offices into which the old one has been split and, therefore, there is no true abolition in the legal sense. In G.R. No. 81998, the twenty-one (21) petitioners led by Rogelio Bustamante, Chief of the Legal Division of the Department of Agriculture (DAGR) filed on February 24, 1987 the instant petition for certiorari, prohibition and injunction with prayer for a restraining order and/or writ of preliminary injunction to enjoin the respondents from holding examinations for the petitioners and others similarly situated on February 26, 1988 and from proceeding with the reorganization of the Department of Agriculture. The petitioners are mostly division and section chiefs who are among the 1,500 regular and civil service officers and employees of the DAGR. Pursuant to Executive Order No. 116 issued on January 30, 1987 which provides for the reorganization of the DAGR, the then Secretary Carlos Dominguez issued Memorandum Circular dated February 10, 1988 requiring all provincial and municipal agricultural officers, as well as division chiefs to take an examination on February 26, 1988 to be given by Sycip Gorres Velayo (SGV) under the authority of respondent Civil Service Commission (CSC). The petitioners asked for a restraining order claiming that the proposed examinations were calculated and designed to have a basis for laying off career employees and officials in order to replace them with proteges of the respondent. They stated that Division Chiefs had already been ordered to work as "coordinators' or told to go on field trips while outsiders, proteges of the respondent, became OICs of the various Divisions. We did not issue any restraining order, hence the examinations were conducted on March 5, 11 and 30, 1988. On March 23, 1988, the petitioners filed a supplemental petition praying for a writ of preliminary injunction enjoining the public respondents from proceeding with the reorganization of their department and to desist from committing acts of harassment or reprisals against the petitioners who were asked to explain in writing why they did not take the competitive examinations. In G.R. No. 86504, petitioner Rainerio Reyes, the then Secretary of the Department of Transportation and Communications (DOTC) seeks the setting aside of the resolution dated November 7, 1988 issued by the Civil Service Commission (CSC) which ordered the reappointment of respondents Matias T. Austria and Arcebido M. Gervacio to the positions of Chief of the National Telegraphic Transfer Service (NTTS) and Administrative Service Chief II of the Telecommunications Office (TELOF) respectively and

declared the appointment of Aureliano de Leon as Administrative Service Chief II ineffective as wen as the CSC's resolution dated December 20, 1988 which denied the petitioner's motion for reconsideration. In a letter-complaint dated January 11, 1986 filed with the Sandiganbayan, a certain Mrs. Calixta Ondevilla, an employee of NTTS, charged Austria with violation of the Anti-Graft and Corrupt Practices Act. In another letter-complaint dated March 14,1986 filed with DOTC Minister Hernando Perez, Ondevilla charged Austria with various irregularities such as favoritism, oppression, abuse of authority and nepotism. Pursuant to the new reorganization plan of the Bureau of Telecommunications (BUTEL) the Acting Director issued various office orders relieving Austria as NTTS Chief and giving him other designations and at the same time designating Arcebido Gervacio as Acting Chief, NITS effective January 2, 1987. Aureliano de Leon who was holding the item of Administrative Officer III was designated Acting Chief, Human Resources and Administrative Department. Austria was found guilty of nepotism, grave insurbordination, grave misconduct and/or abuse of authority, neglect of duty and/or acts prejudicial to the interest of the service (falsification of documents) in a decision signed by the Assistant Secretary of the Telecommunication Office (TELOF). Petitioner DOTC Secretary, however, set aside the decision on grounds of denial of fair and impartial investigation and ordered continuation of a formal investigation upon motion for reconsideration of the Assistant Secretary of TELOF. In the meantime, pursuant to Executive Order Nos. 125 and 125-a (Executive Order No. 125 was issued by the President on January 30, 1987) the reorganization of the DOTC was undertaken. With respect to the BUTEL, now called TELOF, the highest position in the Administrative Division was abolished and a new one was created namely Administrative Services Chief II, (Range 75). On the other hand, the item of NTTS Chief (Range 75) was retained in the staffing pattern. The TELOF Placement and Selection Committee, which included the head of the CSC Field Office considered and evaluated four candidates, including Gervacio and Austria for the top position in the Administrative Division while three candidates, also including Gervacio and Austria were considered for the position of NTTS Chief. The committee recommended De Leon and Gervacio for the top position and NTTS chief respectively. Petitioner DOTC Secretary then appointed the two (2) and their appointments were approved by the CSC through the head of the CSC Field Office. Austria was appointed Administrative Officer I of Region 1, Baguio City. Gervacio and Austria were not satisfied with their appointments and filed separate protests with the DOTC Reorganization Appeal Board (RAB) against Gervacio's appointment (opposed by Austria) as well as de Leon's appointment (opposed by Gervacio). 'The protests were dismissed. Gervacio and Austria then appealed the DOTC-RAB resolution to the CSC which reversed the said resolution. After their motions for reconsideration were denied, the DOTC Secretary filed the instant petition. On July 7, 1989, the CSC issued an order directing the DOST Secretary and the Assistant Secretary of the Telecommunications to immediately implement the CSC resolutions in view of our non-issuance of any restraining order to bar the implementation of the resolution. On September 5, 1989, we issued a temporary restraining order enjoining the CSC to cease and desist from enforcing the July 7, 1989 order. In G.R. No. 86547, petitioner Secretary Carlos Dominguez of the Department of Agriculture seeks the annulment of the orders of

44

the Regional Trial Court, Branch 87 of Quezon City granting- (1) a series of temporary restraining orders and writs of preliminary injunction which enjoined the petitioner from carrying out the reorganization of the Department of Agriculture, and (2) several motions of the private respondents to admit additional petitioners. On January 19, 1987, the President issued Executive Order No. 116 "Renaming the Ministry of Agriculture and Food as Ministry of Agriculture, Reorganizing its Units Integrating all Offices and Agencies whose Functions relate to Agriculture and Fishing into the Ministry and for other Purposes." Pursuant to this law, the petitioner formed a Reorganization Committee to work on the new staffing pattern of the Department which was later approved by the Department of Budget and Management. The newly approved staffing pattern was posted in every affected bureau and agency of the Department for all employees to be notified. The Department's reorganization entailed conversion of line bureaus into staff bureaus resulting in the reduction and/or abolition of positions in the Bureaus affected namely, Bureau of Fisheries and Aquatic Resources (BFAR), Bureau of Soils and Water Management (BSWM), Bureau of Plant Industry (BPI) and the Bureau of Animal Industry (BAI). Due to the aforesaid conversion, there was an increase in positions department-wide but there were significant reductions in positions of the staff bureau where most of the private respondents were employed. To evaluate the qualification of all personnel of the Department for possible appointments, a Placement Committee was formed and the petitioner issued Memorandum Circular No. 7 dated October 7, 1987 containing the guidelines to be followed in the reorganization process. All the private respondents were among those whose positions were affected by the reorganization. Thus, they were given the corresponding notices of termination. They were all permanent employees of the DAR, the Bureau of Plant Industry (BPI), Bureau of Animal Industry (BAI), Bureau of Fisheries and Aquatic Resources or Bureau of Soils and Water Management. Pending appeal to the Reorganization Appeals Board (RAB) the private respondents submitted to the petitioner a manifesto requesting deferment of the implementation of the reorganization. In view of their impending dismissal effective October 9, 1988, the first nine (9) private respondents, on October 5, 1988, filed with the respondent trial court a petition for prohibition and mandamus with prayer for a temporary restraining order. On October 7, 1988, the respondent trial court issued a temporary restraining order enjoining the petitioner from carrying out the announced dismissal of the private respondents and from appointing third persons to the positions in the new staffing pattern. Later, the trial court ordered the inclusion of "additional petitioners" in the persons of the other private respondents (total number of private respondents is 519) the last batch of which totalled 35 whose services were to be terminated effective November 5, 1988 upon motions by the counsel of the original nine petitioners in the trial court. After the petitioners' motion for reconsideration of the respondent court's order regarding the "additional petitioners" and grant of the writ of preliminary injunction with respect to them was denied, the instant petition for certiorari and prohibition with prayer for a writ of preliminary injunction with urgent prayer for issuance of temporary restraining order was filed.

In G.R. No. 88951, the Office of Muslim Affairs (OMA) seeks the review of the resolution dated January 27, 1989 of the Civil Service Commission (CSC) which ordered that the private respondents, except retirees or those who have opted to be phased out and received benefits as such, should be immediately reinstated to their positions or to positions of comparable or equivalent rank in the OMA without loss of seniority rights and with back salaries as well as the CSC's resolution dated June 2, 1 989 denying a motion for reconsideration. On January 30, 1987, the President issued Executive Order Nos. 122 as amended, and 122-A abolishing the Office of Muslim Affairs and Cultural Communities (OMACC) and the Philippine Pilgrimage Authority (PHILPA) and creating out of these offices the Office on Muslim Affairs (OMA) and the Bureau of Pilgrimage and Endowment (BPE). Later, on July 25, 1987, the President issued Executive Order No. 295 amending Executive Order No. 122. On June 1, 1987, petitioner Executive Director Jiamil Dianalan issued Office Order No. OG-87-21 creating the OMA Personnel Screening Committee to review, evaluate and recommend employees based on performance and merit. On August 24, 1987, Dianalan issued a memorandum to all officials and employees of OMA to inform them that under Executive Order No. 117, the President authorized extensions of sixty (60) days from the expiration of the earlier extension period within which incumbent employees of defendant OMACC may continue to hold office and receive their salaries in holdover capacities or until September 24, 1987 and that those not reappointed are ordered to desist from further holding office. On September 24, 1987, Acting Assistant Executive Director Atty. Panumbalin M. Membin, OMA issued a memorandum advising all those not reappointed to desist from reporting to office. On October 2, 1987, the President issued "GUIDELINES ON THE IMPLEMENTATION OF REORGANIZATION EXECUTIVE ORDERS" requiring each agency to constitute a Reorganization Appeals Board (OMA-RAB) to hear complaints of affected employees. On October 10, 1987, the petitioner issued Office Order No. 0987-100 creating the OMA Reorganization Appeals Board (OMARAB) which was reconstituted on February 24,1988. On November 3, 1987, the petitioner issued Office Order No. 87021 providing for a procedure for reviewing or reconsidering appeals or complaints. On April 27, 1988, the OMA-RAB issued a resolution adopting Executive Orders Nos. 122 and 122-A as amended and the documents related to the reorganization of OMA as basis in deciding appeals or complaints. On July 12, 1988, the OMA-RAB resolved to dismiss the appeal of the 206 private respondents stating that the non-appointment of the complainants who were former employees of the defunct OMA and PPA were in accordance with law. On July 16, 1988, the private respondents filed appeals for reappointment in the OMA with the CSC, alleging that their separation from service was in violation of law and their constitutional rights to due process and equal protection of the law and security of tenure. Acting on the appeals, the CSC issued the questioned resolutions. Hence, the instant petition. In G.R. No. 89427 petitioner Conrado L. Villazor filed this petition for mandamus to compel respondent Secretary of Health Alfredo R.A. Bengzon to reinstate him as Assistant Provincial Health Officer of Zambales.

45

On May 1, 1985, the petitioner received a permanent appointment as Assistant Provincial Health Officer, range 85 from the then Minister of Health. By virtue of Order No. 267D dated November 7, 1986 the petitioner was assigned officer-in-charge of the San Marcelino District Hospital in San Marcelino, Zambales. On February 2, 1988, the petitioner was informed through a letter from the Regional Director of Regional Health Office No. III San Fernando, Pampanga by authority of the Secretary of Health that after "a review of all our personnel" he shall not be appointed to any position in the new staffing pattern under Executive Order No. 119 (the reorganization law of the Department of Health). On February 16,1988, the DOH dismissed a protest and Dr. Arcellie Llamado was designated as officer-in-charge, San Marcelino District Hospital. Upon appeal to the Civil Service Commission, the DOH decision was reversed. The CSC ruled in favor of the petitioner. Despite the CSC ruling and a letter of the petitioner asking for the immediate issuance of his appointment, the DOH has not issued any appointment to the petitioner. Hence, the instant petition. II After the February 1986 political upheaval, the political leadership decided to proclaim the formation of a revolutionary government headed by President Corazon C. Aquino. On February 25, 1986, immediately after the President was sworn into office, she issued Proclamation No. 1 declaring as policy the reorganization of the government. The reorganization affected all branches of the Government as appointive public officials including the members of the Supreme Court as well as elective officials were included in its purview. On March 25, 1986, the President promulgated Proclamation No. 3 "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION." Proclamation No. 3 reiterated the new policy of the government as embodied in the law's Preamble, to wit: WHEREAS, the direct mandate of the people as manifested by their extraordinary action demands the complete reorganization of the government, ... The implementing guidelines were spelled out in the succeeding provisions of the law, to wit: ARTICLE II Section 1 xxx xxx xxx The President shall give priority to measures to achieve the mandate of the people to: a) Completely reorganize the government, eradicate unjust and oppressive structures, and all iniquitous vestiges of the previous regime.

ARTICLE III Section 1. In the reorganization of the government priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption. Section 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if such is made within a period of one year from February 25,1986. Section 3. Any public officer and employee separated from the service as a result of the organization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder. Section 4. The records, equipment, buildings, facilities and other properties of all government offices shall be carefully preserved. In case any office or body is abolished or reorganized pursuant to this proclamation, its funds and properties shall be transferred to the offices or body to which its powers, functions and responsibilities substantially pertain. On May 28, 1986, the President issued Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Among others, the law prescribed as "grounds for the separation/replacement of personnel" (SECTION 3) the following: 1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law; 2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned; 3) Gross incompetence or inefficiency in the discharge of functions; 4) Misuse of public office for partisan political purposes; 5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service. Thereafter, the President issued Executive Orders directing the reorganization of various different departments of the government which affected their employees, among them the petitioners in some of the instant cases as well as the respondents in the other cases: In G.R. No. 78053, Executive Order No. 117 reorganizing the Department of Education, Culture and Sports issued on January 30, 1987; In G.R. No. 78525, Executive Order No. 120 reorganizing the Department of Tourism issued on January 20,1987; In G.R. No. 81197 Executive Order No. 297 reorganizing the Office of the Press Secretary issued on July 25, 1987; In G.R. No. 81495 Executive Order No. 128 reorganizing the Department of Science and Technology issued on January 30,1987; In G.R. No. 81928 Executive Order No. 128 issued on January 30, 1987; In G.R. No. 81998 Executive Order No. 116 issued on January 30, 1987; In G.R. No. 86504 Executive Order No. 125 reorganizing the Department of Transportation and Communications issued on January 30, 1987; In G.R. No. 86547

46

Executive Order No. 116 reorganizing the Department of Agriculture issued on January 30, 1987; In G.R. No. 88951 Executive Order No. 122 abolishing the Office of Muslim Affairs and Cultural Communities and the Philippine Pilgrimage Authority issued on January 30, 1987; and in G.R. No. 89427 Executive Order No. 119 reorganizing the Department of Health issued on January 30, 1987. As stated in Dario v. Mison, et al. (G.R. No. 81954 and related cases, August 8, 1989, p. 23) there is no dispute over the authority to carry out a valid reorganization in any branch or agency of Government. Pursuant to the Provisional Constitution and the various Executive Orders issued by the President when she was the sole law- making authority, the different Departments of Government were authorized to carry on reorganization programs. From the very start, however, the nature and extent of the power to reorganize were circumscribed by the source of the power itself. The grant of authority was accompanied by guidelines and limitations. It was never intended that department and agency heads would be vested with untrammelled and automatic authority to dismiss the millions of government workers on the stroke of a pen and with the same sweeping power determine under their sole discretion who would be appointed or reappointed to the vacant positions. Thus, under Proclamation No. 3, Article II, Section l(a), reorganization was mandated by the People to "eradicate unjust and oppressive structures." Where the fabric was sound or the new agency head could not devise anything better, it must be retained. The mandate was also intended to remove "all iniquitous vestiges of the previous regime." Under this mandate, the mass of lowly employees in the bottom rungs of the governmental hierarchy, ordinarily constant and apolitical, were not intended to be summarily dismissed unless basic reasons outweighed or overcame the rights to their jobs built up so laboriously over the years. Article III, Section 1 of the same Proclamation added another guideline - "priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption." The promotion of simplicity, economy, and efficiency is the usual standard which enables a delegation of powers in reorganization statutes to pass the test of validity. When the President set the standard of economy, efficiency, and the eradication of graft and corruption, she did not come up with novel standards to be followed by her alter egos in the implementation of the reorganization program. We have ample jurisprudence on the matter, in Urgello, et al. v. Osmena, Jr., 9 SCRA 317 [1963], this Court made it plain that the creation of new positions with increases in salaries and with the same duties as those abolished is inconsistent with the ostensible purpose of economy and efficiency. Similar rulings were made in Abanilla, et al. v. Ticao, et al., 17 SCRA 652 [1966]; Cruz, et al. v. Primicias, Jr., et al., 23 SCRA 998 [1968]; Briones v. Osmena, Jr.,104 Phil. 588 [1958]; and Ocampo, et al. v. Duque, 16 SCRA 962 [1966]. On the other hand, the bona fide rule was followed in Arao v. Luspo, 20 SCRA 722 [1967]; Manalang v. Quitoriano, 94 Phil. 903 [1954]; Llanto v. Dimaporo, 16 SCRA 599 [1966]; Facundo v. Pabalan, 4 SCRA 375 [1962]; and Maza v. Ochave, 20 SCRA 142 [1967]. There were ample precedents to guide the respondent public officers in these cases. No specific causes for removal were given in the Provisional Constitution. The President, therefore, felt constrained to issue particulars to guide those who would implement the policy. We had occasion to pass upon this issue and stated: Although the Provisional Constitution did not require any ground or cause for removal as above pointed out, the Government, in an act of auto-limitation and to prevent

indiscriminate dismissals of personnel in the Career Civil Service whose qualifications and performance meet the standards of public service of the New Government', issued Executive Order No. 17 dated 28 May 1986 (82 Official Gazette 2423 [2 June 1986]) which enumerated certain grounds for the separation or replacement of elective and appointive officials authorized under Article III (2) of the Provisional Constitution. .... (Radia v. Review Committee Under Executive Order No. 17, et al., 157 SCRA 749, 753 [1988]). Executive Order No. 17 was issued on May 28, 1986, long before the present Constitution was ratified and adopted, 'in order to obviate unnecessary anxiety and demoralization among the deserving officials and employees, particularly in the career civil service ... and to ensure that only those found corrupt, inefficient, and undeserving are separated from the government service." (82 Official Gazette 2423, June 2,1986). The President's concern embodied in Executive Order No. 17 was also shown by that other great department of Government, namely Congress. The cause of those who have been reorganized out of office has been taken up by their elected representatives. On March 1, 1988, the Senate of the Philippines passed a unanimous resolution with two abstentions expressing the Senate's concern over the plight of government officials and employees who were dismissed without just cause. Significantly, Senator Santanina Rasul, chairperson of the Senate Committee on the Civil Service, divulged that reorganization has resulted in the creation of an even bigger and fatter bureaucracy. The Senate urged the suspension of the then on- going reorganization of government offices pending remedial legislation. (Manila Bulletin, March 2, 1988, p.i.). Earlier, the House of Representatives has also introduced a bill for the setting up of clear-cut policies and guidelines on reorganization to protect the security of tenure of civil servants. (Manila Bulletin, October 5,1987, p. 14) These efforts led to the enactment on June 10, 1988 of Republic Act No. 6656 "AN ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION." The law reiterated the established and valid causes for removals incident to a bona- fide reorganization and itemized some circumstances constituting evidence of bad faith in a non bona fide reorganization. Section 2 of the law provides: SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished, or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in a number of positions in the new staffing pattern of the department or agency concerned;

47

(b) Where an office is abolished and another performing substantially the same functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; (e) Where the removal violates the order of separation provided in Section 3 hereof. Republic Act No. 6656 states the policy of the law and provides for the retroactivity of its provisions even in reorganizations already effected. It provides: SECTION 1. It is hereby declared the policy of the State to protect the security of tenure of civil service officers and employees in the reorganization of the various agencies of the National Government and of local governments, state colleges and universities expressly authorized by law, including government-owned or controlled corporations with original charters, without sacrificing the need to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service pursuant to Article IX, B, Section 3 of the Constitution. xxx xxx xxx SECTION 11. The executive branch of the government shall implement reorganization schemes within a specified period of time authorized by law. In the case of the 1987 reorganization of the executive branch, all departments and agencies which are authorized by executive orders promulgated by the President to reorganize shall have ninety (90) days from the approval of this Act within which to implement their respective reorganization plans inaccordance with the provisions of this Act. (Emphasis supplied) Significantly, Republic Act No. 6656 also repealed all laws, rules and regulations and part thereof inconsistent with its provisions. (See Section 13) The Solicitor General, in his consolidated memorandum, argues that traditional concepts of civil service law should not apply. He states that the government overhaul is a direct exercise by the sovereign people of police power. In what he calls "progressive reorganization," separations from the service may be effected without cause because "the mandated reorganization itself is the cause." There is no dispute over the power to reorganize-whether traditional, progressive, or whatever adjective is appended to it. However, the essence of constitutional government is adherence to basic rules. The rule of law requires that no government official should feel free to do as he pleases using only his avowedly sincere intentions and conscience to guide him. The fundamental standards of fairness embodied in the bona fide rule cannot be disregarded. More particularly, the auto-limitations imposed by the President when she proclaimed the Provisional Constitution and issued executive orders as sole law maker and

the standards and restrictions prescribed by the present Constitution and the Congress established under it, must be obeyed. Absent this compliance, we cannot say that a reorganization is bona-fide. The public respondents (who are petitioners in some cases) argue that they have followed standards. However, the standard they present is derived from the typical grant of rule-making authority found in all the questioned Executive Orders, to wit: The Minister shall issue such rules, regulations, and other issuances as may be necessary to ensure the effective implementation of the provisions of this Executive Order. The alleged standard - "ensure the effective implementation of the provisions of this Executive Order"- is no standard. Under the public respondents concept, their standard is a roving commission giving the executive officer unbridled discretion to do as he pleases as long as, in his belief, his act effectively implements the executive order. As earlier mentioned, the standards are found else where in the governing charters in sufficiently clear and ample language. The grant of quasilegislative power to implement the reorganization is bound by these standards. Unfortunately, the public officials concerned have misread the instructions and decided to implement reorganization according to their full discretion in a manifestly invalid manner. Article XVIII, Section 16 of the 1987 Constitution reads: Sec. 16. Career civil service employees separated from the service not for cause but as a result of reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted. To justify the challenged reorganization measures, the Solicitor General finds in the "not for cause" separations from the service and the "reorganization following the ratification of this Constitution" ample powers assumed by the public respondents and petitioner officials in these cases. The resolution in Jose v. Arroyo, G.R. No. 78435, (unsigned resolution dated August 11, 1987) is cited to justify the termination without cause of the services of the officers and employees involved in the instant cases. The Solicitor General argues that the usual invocation of the right to security of tenure is precluded by the constitutional provision. The Government relies on Jose v. Arroyo where we stated: The contention of petitioner that Executive Order No. 127 is violative of the provision of the 1987 Constitution guaranteeing career civil service employees security of tenure overlooks the provision of Section 16, Article XVIII (Transitory Provisions) which explicitly authorize the removal of career civil service employees not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization

48

following the ratification of this Constitution. By virtue of said provision, the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratification of the Constitution and career civil service employees may be separated from the service without cause as a result of such organization. (Jose v. Arroyo, supra) The above arguments have been laid to rest first in the case of Palma-Fernandez v. dela Paz, 160 SCRA 751 (1988), where we ruled: The argument that, on the basis of this provision, petitioner's term of office ended on 30 January 1987 and that she continued in the performance of her duties merely in a holdover capacity and could be transferred to another position without violating any of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective (De Leon, et al. v. Hon. Benjamin B. Esguerra, et al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern. (at p. 757) The Court was more emphatic in the seven (7) petitions collectively known as the Dario v. Mison cases (supra). First, the Arroyo v. Jose ruling is obiter dictum because Leonardo Jose's petition was "clearly premature, speculative, and purely anticipatory." There was no reorganization yet. Second, Arroyo v. Jose is an unsigned resolution where the nuances of the Court's pronouncements cannot possibly be ventilated as in a full-blown decision like Palma- Fernandez. And third, Palma-Fernandez is a later ruling which, in case of an inconsistency (actually more imagined than real), supersedes the earlier dictum. (Dario v. Mison, supra at pp. 46-49) We explained in these precedent-setting Dario V. Mison cases: As we have suggested, the transitory provisions of the 1987 Constitution allude to two stages of the reorganization, the first Proclamation No. 3-which had already been consummated-the second stage being that adverted to in the transitory provisions themselves-which is underway. Hence, when we spoke, in Arroyo of reorganization after the effectivity of the new Constitution, we referred to the second stage of the reorganization. Accordingly, we cannot be said to have carried over reorganization under the Freedom Constitution to its 1987 counterpart. Finally, Arroyo is not necessarily incompatible with Palma-Fernandez (or Esguerra). As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as stem as reorganization under the prior Charter. Whereas the latter, sans the President's subsequently imposed constraints, envisioned a purgation, the same cannot be said of the reorganization inferred under the new Constitution because precisely, the new Constitution seeks to usher in a democratic regime. But even if we concede ex gratia argumenti that Section 16 is an exception to

due process and no- removal-'except for cause provided by law' principles enshrined in the very same 1987 Constitution. (Article III, Sec. 1, and Art. IX (B), Sec. 2 (3) which may possibly justify removals 'not for cause,' there is no contradiction in terms here because, while the former Constitution left the axe to fall where it might, the present organic act requires that removals 'not for cause' must be a result of reorganization. As we observed, the Constitution does not 'provide' for automatic' vacancies. It must also pass the test of good faith-a test not obviously required under the revolutionary government formerly prevailing, but a test well-established in democratic societies and in this government under a democratic charter. And only recently, this Court promulgated the decision in Floreza v. Hon. Jaime Ongpin, et al., G.R. No. 81356 and the related case of Floreza v. Civil Service Commission, et al., G.R. No. 86156, February 26, 1990 where we declared the dismissal pursuant to a reorganization invalid and ordered the petitioner's reinstatement to his former position. A typical provision in all these challenged executive orders is the "hold-over" status of every single employee of the departments as a result of the implementation of the reorganization. One such provision would be section 24 of Executive Order No. 117 reorganizing the DECS, to wit: SEC. 24. New Structure and Pattern. Upon approval of this Executive Order, the officers (the term officer as used in this Executive Order is intended to be within the meaning of the term 'official' as used in the Freedom Constitution and the succeeding Constitution) and employees of the Ministry shall, in a holdover capacity continue to perform their respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from the service pursuant to Executive Order No. 17 [1986]or Article III of the Freedom Constitution. (Emphasis supplied) Pursuant to the above provision, around 400,000 school teachers, janitors, clerks, principals, supervisors, administrators, and higher officials were placed on "hold- over status." When a public officer is placed on hold-over status, it means that his term has expired or his services terminated but he should continue holding his office until his successor is appointed or chosen and has qualified. (See Topacio Nueno v. Angeles, 76 Phil. 12 [1946]). The petitioner in G.R. No. 78053 argues against the "holdover" feature of the challenged order in this manner: xxx xxx xxx ... To reduce four hundred thousand officers and employees most of them permanent, to holdover status preparatory to their eventual separation from the service many of them beyond middle age and too late to start a new career, is not only tyranny but cruelty of the first magnitude. Reorganizations can be accomplished without disruption of family life, so well respected and protected by the. 1986 (sic) Constitution when it says with honor and oxide, 'The State recognizes sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.' Moreover, this step is not in keeping with the mandate of the Freedom Constitution which tasks the President to make effective the guarantees of human rights against violations thereof. (Rollo, G.R. No. 78053, p. 5)

49

We view it, however, as a graphic illustration of the noncompliance with the bona-fide rule in reorganizations. In answer to questions posed during the oral arguments in these cases, the Solicitor General stated that there were persons other than Division Superintendent Francisco L. Mendoza who were not reappointed. As far as can be gathered from the records, however, it appears that out of 400,000 dismissed employees only one has chosen to come to this Court. Any others seem to have welcomed or accepted their forced retirement as they did not join the petitioners in these consolidated and other related cases. If everybody was going to be reappointed, except Mr. Mendoza and the relatively few unknown others who did not join in these reorganization cases and who would have retired if allowed to do so, what was the point in dismissing and then placing such a tremendous number of persons on hold-over status? An examination of the facts of these cases invariably shows that the bona-fide rule has been ignored or disobeyed. Except in the Office of the Press Secretary, there have been significant increases in the number of positions in affected Departments and agencies thus belying the claims of economy. Offices have been abolished but in their stead, offices performing substantially the same functions have been created. In some cases, e.g. the Science Promotions Institute in the Department of Science and Technology an office has been divided into two or more offices with a greater number of employees performing the same functions. Incumbents have been replaced by persons less qualified in terms of status, performance, and merit as in the Department of Tourism where a driver with 27 years government service, a messenger with 14 years, bookkeepers, and others with citations and honors have been replaced by appointees with lesser qualifications and seniority. It is a paramount principle in Public Officers' Law that the power to abolish public offices vested in the legislature is not absolute. It is subject to the limitations that it be exercised in good faith, should never be for personal or political reasons, and cannot, be implemented in a manner contrary to law. (Cruz v. Primicias, 23 SCRA 998 [1968]; Maza v. Ochave, 20 SCRA 142 [1967]; Abanilla, et al. v. Ticao, et al., 17 SCRA 652 [1966]; Ocampo, et al. v. Duque, et al., 16 SCRA 962 [1966]; Llanto v. Ali Dimaporo, et al., 16 SCRA 599 [1966]; Arao v. Luspo, 20 SCRA 722 [1967]; Guillergan, et al. v. Ganzon, et al., 17 SCRA 257 [1966]; Urgelio v. Osmena, Jr., 9 SCRA 317 [1963]; Alipio v. Rodriguez, 9 SCRA 752 [1963]; Briones, et al. v. Osmena, Jr., et al., 104 Phil. 588 [1958]); and Gacho, et al. v. Osmena, Jr., etc., et al., 103 Phil. 837 [1958]). Speaking through Mr. Justice J.B.L. Reyes, the Court was very emphatic in Cruz v. Primicias, Jr., supra that an abolition which is not bona-fide but is merely a device to circumvent the constitutional security of tenure of civil service employees is null and void. These principles were reiterated in De la Llana v. Alba (112 SCRA 294 [1982]) where we sustained a bona-fide reorganization, to wit: Nothing is better settled in our laws than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr. (23 SCRA 998) reiterated such a doctrine. 'We find this point urged by respondents, to be without merit. No removal or separation of petitioners from the service is here involved but the validity of the abolition of their offices. This is a legal issue that is for the courts to decide. It is a well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents. And of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office....' As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle

that, in order to be valid, the abolition must be made in good faith. (at pp. 321-322). As in the Dario v. Mison cases, we disregard the procedural roadblocks which the parties on either side have tried to erect against each other: The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain parties to sue, (This was raised by the Civil Service Commission in G.R. No. 86241. Failure to exhaust administrative remedies was raised in G.R. Nos. 81954 and 81917 by the Solicitor General) and other technical objections, for two reasons, '[b]ecause of the demands of public interest, including the need for stability in the public service', (Sarmiento III v. Mison, No. 79974, December 17, 1987, 153 SCRA 549, 551-552) and because of the serious implications of these cases on the administration of the Philippine civil service and the rights of public servants. (G.R. No. 81954 and related cases, August 8, 1989, pp. 2324) III In G.R. No. 78053, it is apparent that the petitioner's termination as Schools Division Superintendent of Surigao City was pursuant to the public respondent's view that under Section 24 of Executive Order No. 117 all incumbent officials/personnel of DECS were on hold-over status unless advised otherwise. The dismissal of all employees and their being placed on holdover status is particularly objectionable in the DECS. There could have been no intention to get rid of hundreds of thousands of school teachers. The use of "reorganization" even under the concept advocated by the Solicitor General appears trivial if not unnecessary. Division Superintendents usually start as classroom teachers and move up to principals, district supervisors, and assistant superintendents usually over more than thirty years of service before appointment as Division heads. At each rung of the promotional ladder, there are qualifying examinations and rigid background checks. The big number of competitors insures some degree of safeguards against abuses. To use reorganization of the biggest Department in the government in order to avoid the hassles of bringing administrative charges against Mendoza and perhaps a few other alleged persona-non-gratas like him is precisely what this Court rejects when we apply the bona-fide rule. One does not burn down a house if his purpose is to roast alleged pests. The petitioner was appointed in a "PERMANENT STATUS" besides having a rating of 79% for the rating period of May 1986 to April 1987, which is considered "Very Satisfactory" under the "Rating Sheet for Key MEC Officials." There was grave abuse of discretion when the petitioner's services were terminated by a mere letter-order on the justification that the petitioner, together with the entire personnel of the DECS, was only in a hold-over capacity. If the petitioner is guilty of wrongdoing, it is an easy matter to Me charges against him instead of placing the entire DECS on hold-over status in order to run after him. In G.R. No. 78525, the public respondents justify the termination of the petitioners as follows: 1) as regards seventeen of the petitioners, they were previously employed in the abolished Bureaus (Tourism Services and Bureau of Tourism Promotions). Therefore, the public respondents argue that since the positions of the seventeen petitioners were abolished, they can not claim impairment of their right to security of tenure; 2) as regards the remaining petitioners, the public respondents argue that although their positions were not abolished, their separation from the service without cause is also valid pursuant to Section 16, Article XVIII, 1987 Constitution and the case of Jose v. Arroyo, supra.

50

The public respondents maintain that due process was observed since the petitioners were evaluated in accordance with the criteria in Section 27 of the Civil Service Act giving them examinations to determine their competence and/or having them interviewed by their superiors and/or civil service commissioners or personnel specialists and/or requiring them to submit self-evaluation reports; and/or referring to their personnel records. As we stated earlier, ritual invocation of the abolition of an office is not sufficient to justify the termination of the services of an officer or employee in such abolished office. Abolition should be exercised in good faith, should not be for personal or political reasons, and cannot be implemented in a manner contrary to law. "Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case.' (Dario v. Mison cases, p. 50). If an executive department is bloated with unnecessary employees, there can be no objection to a law abolishing the useless or non-essential items. In the instant case, however, all items, including the essential ones, were declared vacant. There is absolutely no showing that the positions of tourism field coordinator, bus driver, bookkeeper, accounting clerk, librarian, nurse, telephone operator, messenger in fact, any of the items occupied by the petitioners-are unnecessary and must be chopped off. In the case of Rama v. Court of Appeals, (148 SCRA 496 [1987]), we ruled: ... It is an undeniable fact that the dismissed employees who were holding such positions as foremen, watchmen, and drivers, suffered the uncertainties of the unemployed when they were plucked out of their positions. That not all of them testified as to the extent of damages they sustained on account of their separation from their government jobs, cannot be used as a defense by the petitioner. Suffice it to state that considering the positions they were holding, the dismissed employees concerned belong to a low-salaried group, who, if deprived of wages would generally incur considerable economic hardships. xxx xxx xxx xxx xxx xxx Apropos the practice of victorious politicians to remove government employees who did not support them in their campaign for office, this Court has said: 'There are altogether too many cases of this nature, wherein local elective officials, upon assumption to office, wield their new-found power indiscriminately by replacing employees with their own proteges regardless of the laws and regulations governing the civil service. Victory at the polls should not be taken as authority for the commission of such illegal acts. (Nemenzo v. Sabillano, L-20977, September 7, 1968, 25 SCRA 1) The rule does not apply to local officials alone. It is even more true for national offices. It would be the height of naivete to presume that in the rapid filling up of several hundred vacated positions, no personal or political considerations would creep into the selection process. The civil service law was evolved as a reaction to the spoils system. The petitioners are employees of the Department of Tourism holding permanent positions. Most of them have served the government for extended periods, from twelve (12) years to twenty-seven (27) years. No one of them has a pending

administrative charge. Many of them have received numerous citations, awards, and honors for meritorious services. The public respondents have given no individual reasons for each of the affected employees as to why they are being dismissed from their employment except to emphasize in a general manner the existence of near absolute power to cut off their means of livelihood. The lip service paid by the respondents to due process whereby supervisors who were themselves later dismissed, were ordered to give "evaluations" on the performance of the laid off personnel is no substitute for more regular procedures in getting honest to goodness results. The advice sought from "Personnel Specialists" of the Civil Service Commissioners, who should have known better than to participate in a violation of the rules their agency espouses is only window-dressing for what this Court called in Cruz v. Primicias, supra as a "subterfuge resorted to for disguising an illegal removal of permanent civil service employees." The employees are terminated without being given reasons for their dismissal. Only the appointing authority knows why employees are no longer reappointed. The circumstances are different in G.R. No. 81197 filed by personnel in the Office of the Press Secretary. As earlier stated, out of 770 regular employees of the Bureau of Broadcast and Radyo Ng Bayan, only 333 employees were retained in the new and merged office of Bureau of Broadcast Services. The intent to abolish unnecessary items and to keep them abolished has not been satisfactorily refuted by the petitioners. Fifteen petitioners hold temporary appointments. There is no showing way these 15 employees should be exceptions to the established rule that persons holding temporary or casual appointments do not enjoy the security of tenure extended to permanent personnel. The Solicitor General in his Consolidated Memorandum filed on March 10, 1989 manifested: Subsequently, or on January 19, 1988, a Supplemental Petition was filed by all the above. In the meantime, during the pendency of the instant case before this Honorable Court, the OPS requested the Budget Office for a supplemental or additional plantilla, which has been recently approved on January 26, 1989. Also, the present status of all the 84 petitioners is as follows: (a) 61 petitioners have already availed of separation benefits. (b) 3 petitioners have already availed of separation benefits. (c) 1 petitioner is likely to apply for separation benefits after being cleared by COA of her property accountability. (d) 6 petitioners are not expected to avail of separation benefits for being contractual employees. (e) 1 petitioner (Romulo Salcedo) has already been reinstated out of deference to a Resolution of the Civil Service Commission, whose jurisdiction OPS had doubted. At any rate, Salcedo passed the OPS exams/interviews, but could not previously be accommodated due to limited number of positions under new staffing pattern.

51

(f) 1 petitioner is presently serving as volunteer in anticipation of a position under the requested supplemental plantilla (now approved). (g) 10 petitioners are performing duties in hold-over capacity likewise in anticipation of a position under the supplemental plantilla (5 of these 10 petitioners disclaim having authorized their inclusion as petitioners in the instant case). (h) 1 petitioner (Corazon Carluen) had accepted a position lower than the position of radio production announcer which she applied for but for which she was shown not to be qualified. On January 24 and 31, 1989 when the instant petition was scheduled for oral arguments before this Honorable Court, neither petitioners nor their counsel appeared, the case for all intents and purposes having become moot and academic. Thus, on the bases alone of aforesaid developments during the pendency of the instant petition, dismissal of the instant petition is warranted. In any event, the instant petition is without merit in the light of the progressive reorganization undertaken by the sovereign people in the aftermath of the EDSA Revolution. (Rollo of G.R. No. 81197, pp. 7173) On February 13, 1990, we issued a resolution, to wit: For failure of Atty. Alfredo V. Zerrudo, Jr., counsel for petitioners in G.R. No. 81197 to comply with the resolutions of (a) April 12, 1988 which required among other things, the parties to file their respective memoranda, (b) September 6, 1988, requiring aforesaid counsel to show cause why no disciplinary action should be taken against him for failure to file memorandum and to comply with the resolution of April 12, 1984 and (c) November 8, 1988 which imposed on Atty. Zerrudo, Jr., a fine and required him to comply with the resolution of September 6, 1988, the Court Resolved to (d) ORDER THE ARREST of aforesaid Atty. Alfredo V. Zerrudo. xxx xxx xxx Not only did the petitioners fail to appear during the hearings and fail to file the required memorandum but up to this time, we have not heard anything from them. Apparently, the petitioners have lost interest in prosecuting the instant case in view of the supervening events stated by the Solicitor General. In G.R. No. 81495, the petitioners raise the following arguments: (1) The 1987 Constitution, in its section 16, Article XVIII justifies the dismissal of career civil servants not for cause: (2) Executive Order No. 128 does not violate security of tenure but merely allows employees to continue on a "hold-over" capacity, (3) The ruling in Jose v. Arroyo supra states that a reorganization may continue even after the ratification of the Constitution and dismissal without cause as a result of such reorganization are valid. We have discussed earlier why these arguments are not welltaken. In the Mison cases, we categorically stated that section 16,

Article XVIII of the 1987 Constitution does not sanction indiscriminate dismissals without cause. We have also discussed why the "hold-over" status of all employees/officers provided for in the executive orders reorganizing the various departments in government cannot be ordered and implemented during the effectivity of the 1987 Constitution (which was on February 2, 1987). Civil service eligibles can no longer be removed without cause as they already enjoy the constitutional right to security of tenure. This was the ruling in the Palma-Fernandez v. de la Paz decision and the Dario v. Mison cases which clarified and tempered the abbreviated language of the Jose v. Arroyo decision cited by the petitioners. In G.R. No. 81928, the issue involves the validity of the abolition of the office of the petitioner. The petitioner maintains that the abolition of the Science Promotion Institute (SPI) and the consequent creation of two offices namely the Science Education Institute (SEI) and the Science and Technology Information Institute (STII) pursuant to Executive Order No. 128 was not effected in good faith. The petitioner contends that the SPI has not been abolished but merely split into two (2) offices whose combined functions are substantially Identical with the functions of the SPI. Moreover, the petitioner contends that the two newly created offices provide for thirteen (13) management positions which is more than the number of said position in the SPI. Section 4, Republic Act No. 770 which enumerates the functions of SPI reads: SEC. 4. The purposes of this Corporation (SFP, subsequently renamed and converted to SPI) shall be: a) To initiate, promote, stimulate, solicit, encourage and support basic and applied scientific research in the mathematical, physical, medical, biological, engineering and other sciences, by means of grants, loans and other forms of assistance to qualified persons and institutions applying for the same; b) To award scholarships and graduate fellowships in the mathematical, physical, medical, biological, engineering and other sciences; c) To foster interchange of scientific information among scientists here and abroad; d) To aid in the establishment of adequate scientific laboratories; and, e) To encourage, protect and aid in the organization of science clubs and societies in the schools and colleges of the Philippines. (Sec. 4, RA No. 770) Sections 26 and 27 of Executive Order No. 128 which enumerate the functions of the SEI. and STII respectively read: SEC. 26. Science Education Institute. There is hereby created the Science Education Institute, which shall have the following functions: a) Undertake science education and training; b) Administer scholarships, awards and grants; c) Undertake science and technology manpower development;

52

d) Formulate plans and establish programs and projects for the promotion and development of science and technology education and training in coordination with the Ministry of Education, Culture and Sports, and other institutions of learning in the field of science and technology. ... (Sec. 26, EO No. 128) SEC. 27. Science and Technology Information Institute. There is hereby created the Science and Technology Information Institute which shall have the following functions: a) Establish a science and technology databank and library; b) Disseminate science and technology information; and c) Undertake training on science and technology information ... (Sec. 27. EO 128). We find no substantial differences between the functions of the two newly created offices and those of SPI. Indeed, their functions are similar in the promotion, encouragement, and support of the development of science and technology. The public respondents' contention that the functions of two newly created offices are not substantially similar to those of SPI is untenable. Pursuant to section 2, Republic Act No. 6656 this circumstance ... where an office is abolished and another performing substantially the same functions is created ... " is considered as "evidence of bad faith in the removal made as a result of reorganization giving rise to a claim for reinstatement .. ." Moreover, there is merit to the petitioner's contention that there is an increase in the number of management positions from nine (9) of SPI to the thirteen (13) of the STII and SEI. This increase violates RA 6656 in that "... where there is a significant increase in the number of positions in the new staffing pattern ...", these circumstances " ... may be considered as evidence of bad faith .. ." The respondent contends that the petitioner was terminated as a result of the reorganization. The petitioner alleges that he was separated in view of his refusal to comply with the alleged anomalous demand of the respondent to turn over SPI funds to the DOST proper. Since vestiges of bad faith as defined by statute and this Court surrounded the abolition of his office, the petitioner should be reinstated and be given an equivalent position in either the STII or SPI. In G.R. No. 81998, the Solicitor General in this consolidated Memorandum manifests: In the case, there is actually no reorganization involved. Petitioner Rogelio Bustamante, who appeared in his own behalf and for his copetitioners ADMITTED in open court during the oral argument on February 1, 1989 that not one of the petitioners was removed from his or her position. Otherwise stated as of the dates the original and supplemental positions were filed no employee has as yet been removed, replaced or reorganized out. It is respondents' submission that even if it is assumed that petitioners would eventually be removed from their positions as a result of the reorganization of the Department of Agriculture pursuant to Executive Order No. 116, still petitioners' grievance has no legal or constitutional mooring in the light of the

pronouncement of this Honorable Court in Leonardo A. Jose v. Joker P. Arroyo, et al. ... We apply the principle earlier stated that the case of Jose v. Arroyo, supra has been superseded by the Palma-Fernandez v. de la Paz (supra) and the Dario v. Mison (supra) cases to the effect that after February 2, 1987 civil service eligibles in the government service enjoy the constitutional right to security of tenure. The petitioners, therefore, can not be removed by mere notices of termination, without due notice and hearing and not knowing the valid grounds for the termination of their services. In G.R. No. 86504, the petitioner who was then the Secretary of the Department of Transportation and Communications (DOTC) considered the respondents to be holding their positions in a hold-over capacity pursuant to section 20 of Executive Order No. 125. Under this premise, the petitioner declared all positions of the department vacant including those of the respondents and thereafter extended new appointments as part of the reorganization of the department. This is, therefore, another case where the hold-over procedure is used as a justification. The record shows that before reorganization, the respondents and Aureliano de Leon were officers of the Bureau of Telecommunications (BUTEL) holding the following items: (1) Respondent Austria was the Chief of the National Telegraphic Transfer Service (NTTS) (Range 75) since March 16, 1984; (2) Respondent Gervacio was Administrative Officer V (Chief of the Administrative Division) (Range 73) since September 1982; and (3) Aureliano de Leon was Administrative Officer III (Range 70). He was under Gervacio's supervision as Chief of the Supply Unit. BUTEL was retained under the reorganizational scheme of the department. The name of the agency was only changed to Telecommunications Officer (TELOF). The item of NTTS Chief was retained. As regards the position of Chief of the Administrative Division, the petitioner claims that the Administrative Officer V (Range 73) position was abolished and in its stead there was created the position of Administrative Chief II (Range 75). Evaluations to the new positions started after the effectivity of the 1987 Constitution. Parenthetically, the petitioner was incorrect in holding the Position of Austria as NITS Chief vacant. At the time Austria was transferred to another position, Austria already enjoyed the constitutional right to security of tenure under the new Constitution. Austria has been in the government service for forty-three (43) years and was nearing retirement (he was 63 years old) at the time be was transferred to another position lower in rank (Administrative Officer I Range 64) which the petitioner admits to be a demotion. Certainly, this is contrary to the resolution of the DOTC-RAB to the effect that "the Board resolves to direct the Telecommunications Office and the Department's Selection and Placement Committee to consider Mr. Austria in the evaluation of the candidates for the other Division Chief positions in the Telecommunications Office ..." (p. 104, Rollo). Hence, we find no plausible reason why he should be removed from his position or transferred to a position-lower in rank (Administrative Officer I) which the petitioner admits to be a demotion. As regards the position of Chief of the Administrative Division, Gervacio was already chief of the Division when it was abolished and then re-created with a salary range two points higher. We affirm the respondent Civil Service Commission's (CSC) ruling that Gervacio should be appointed as such and not Aureliano de Leon, to wit: Gervacio, on the other hand, should be appointed Administrative Service Chief II. Although Aureliano de Leon meets the qualifications of the position, he was merely an Administrative Officer III before the reorganization very much lower than the

53

position held by Austria and Gervacio. Gervacio not only meets the qualification standards for the position but also has retention score higher than de Leon who was merely his supervisee before the reorganization of TELECOM. Moreover, his legal profession/expertise which is not possessed by de Leon is a great asset of Gervacio in the performance of the functions and duties of, as well as in meeting the challenges attendant to the Administrative Service Chief II. Gervacio, therefore, has more advantages than de Leon in point of service, qualification, competence, training and years of government experience in the job. (Rollo of G.R. No. 86504, p. 109) Section 2, Republic Act -No. 6656 provides that among the circumstances which may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party is ... (c) where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit .. ." (Emphasis supplied) The rule is that "the appointing person enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and assume the responsibilities of the position to be filled ... Unless the law speaks in mandatory and peremptory tone, there should be full recognition of the wide scope of such discretionary authority." (Central Bank of the Philippines, et al. v. Civil Service Commission, et al. G.R. Nos. 80455-56, April 10, 1989). In this case, an incumbent was dismissed and his subordinate was appointed to his former office, in the course of the reorganization program. Congress has stated the rule. We apply it. G.R. No. 86547 is similar to G.R. No. 78525 in that: (1) the petitioner in G.R. No. 86547 (Secretary of Agriculture) and the respondent in G.R. No. 78525 (the Secretary of Tourism) terminated the services of the employees in their respective departments (respondents in G.R. No. 86547 and petitioners in G.R. No. 78525) for either of the two reasons: (a) Abolition of the employees' positions or offices, and (b) As regards the employees whose positions were not abolished, their non-appointment is sanctioned by the Executive Order reorganizing the department and which was recognized in the Jose v. Arroyo case; (2) The affected employees were mostly from the low salaried groups like clerks, fishery aide, secretary, liaison officer, carpenter, driver, security guard, bookkeeper, information writer, and accounting clerks; (3) Some of the affected employees perform necessary jobs, in the instant case like Soil Technologist, Fishery Agent, Agronomist and Fishery Biologist; and (4) The affected employees were terminated in their employment by mere notices of termination. Under the circumstances, we find no need to discuss the various arguments in the petition. We apply our findings and conclusions in G.R. No. 78525 to the instant case. In G.R. No. 88951, the petitioner assails the resolutions of the Civil Service Commission (CSC) on the following grounds: 1) The termination of services of the private respondents was brought about by the abolition of the offices of OMACC and PHILPA where they were employed pursuant to Executive Order No. 122; 2) The private respondents cannot claim security of tenure pursuant to section 16, Article XVIII of the 1987 Constitution which is considered a "progressive" type of reorganization and to the ruling in the case of Jose v. Arroyo (supra); and 3) The petitioner acted in good faith by observing all presidential issuances, orders and memoranda on reorganization. There is no need to discuss the merits of the first two grounds. They have been sufficiently discussed earlier. But, was the reorganization of the Department done in bad faith?

After conducting hearings, the CSC stated the following: Memorandum Circular No. 10 dated September 2, 1986 of the CSC was issued to 'effectively implement the reorganization in government offices particularly on the selection and placement of personnel and in order that the best qualified and most competent personnel in the career service are retained, .. .'This Circular prescribes that 'the officials and employees shall be compared on the basis of the status of their appointment, competence to perform their duties and moral fitness to discharge their responsibilities and, those who squarely meet the qualification requirements for the position in terms of education, training and experience shall be preferred .. .'The records do not show that appellants were evaluated for retention purposes in accordance with the guidelines on reorganization. Moreover, the Unnumbered Memorandum of the President dated October 2, 1987 containing guidelines on the implementation of the Reorganization Executive Orders provides that the ongoing process of government reorganization should be conducted 'in a manner ... that is sensitive to the dislocating consequences arising from specific organization ... and that the entire process of reorganization must be carried out in the most humane manner possible. Appellants were unceremoniously terminated by a memorandum order of a mere Acting Assistant Executive Director even before the position structure and staffing pattern of the OMA were approved and prescribed by the authorities as required by EO 122-A. Even in reorganization of government agencies, career service employees are entitled to security of tenure. The instant case involves government reorganization by way of abolishing one agency and replacing it with another. Such being the case, the guidelines on placement of personnel in reorganizing agencies must be complied with. Regarding those who have retired or were phased out and have already received their separation benefits, they are now estopped or deemed to have lost their light, if any, to reappointment. On the claim of the respondent that some appellants are already employed in other government offices, the records are bereft of evidence to support the said allegation. Likewise, from the records, the following findings have been established: 1. The acting Assistant Executive Director of the OMA has no power to terminate the services of the former OMACC/PHILPA personnel; 2. New employees who are not civil service eligibles have been appointed to positions in the new staffing pattern of OMA; CSC approval of these appointments is subject to the result of reorganization appeals; 3. The positions involved are not confidential positions and hence, not subject to the trust and confidence of the appointing authority;

54

4. There is no substantial change in the mandate of the new office, which is the OMA. Executive Order Nos. 6 and 122-A clearly delineates the functions and responsibilities of OMA as envisioned by Executive Order No. 6 and 122-A of President Corazon C. Aquino; 5. The incumbents of OMACC and PHILPA are entitled to security of tenure and therefore to reappointment in the newly created agencies such as Office on Muslim Affairs, Office of Northern Cultural Communities and Office of Southern Cultural Communities; and 6. OMA did not observe the transparency requirement by treating the OMA Plantilla of Personnel and staffing pattern confidential. (Rollo, G.R. No. 88951, pp. 58-60) These findings show that contrary to the petitioner's allegation, the termination of the services of the private respondents was not done in good faith. In G.R. No. 89427, the Solicitor General, instead of filing a Comment to the Petition, filed a Manifestation on December 23, 1989 stating therein that he was informed by respondent Secretary of Health Alfredo R.A. Bengzon "that the papers for the reinstatement of Dr. Villazor are now undergoing process in the Department and said petitioner will be reinstated to his position as Assistant Provincial Health Officer.' The Solicitor General, therefore, manifests that the instant petition should be dismissed for being academic. This manifestation was opposed by the petitioner who claims that the processing of his papers for reinstatement is not a reinstatement but simply a process and until the petitioner is actually reinstated the instant case cannot be purely academic. Considering the manifestation and the opposition thereto, we rule that the petition has indeed become academic. No useful purpose can be served by discussing the issues as to whether or not the petitioner should be reinstated when the public respondent by assuring this Court that the petitioner shall be restored to his former position has recognized the petitioner's right to be given back the position earlier taken away from him. IV One of the causes of instability constituting a clear deterrent to efficiency and honesty in Government is the widespread and incessant reorganization of executive departments and offices, the abolition of all positions from the highest to the lowest and the subsequent restoration and filling up of all the abolished items and new ones that have been created. Security of tenure, together with the merit and fitness rule, is a basic feature of the civil service scheme we have adopted in the Philippines. If established principles protecting security of tenure are to be disregarded or waived, this can be done only on the basis of clear constitutional grounds. It is significant that in the charters or legislative authority for the exercise of power-the Provisional Constitution of 1986, Executive Order No. 17, and Republic Act No. 6656- any reorganization in Government must follow the bona-fide rule. There is no basis in the above laws for indiscriminate dismissals. The executive implementors of policy are required to abide by the intent and purpose stated in the grant of power, to follow the guidelines set out for them and, in the words of the President "ensure that only those found corrupt, inefficient, and undeserving are separated from the government service." We are constrained to set aside the reorganizations embodied in these consolidated petitions because the heads of departments and agencies concerned have chosen to rely on their own

concepts of unlimited discretion and "progressive" Ideas on reorganization instead of showing that they have faithfully complied with the clear letter and spirit of the two Constitutions and the statutes governing reorganization. The auto-limitations imposed by the President on herself have not been followed by the alter egos. The members of Congress have spoken out on how any valid reorganization should be conducted. Their voice should be heeded. The Damocles sword of reorganization hanging over the heads of public servants with every change of administration and sometimes with the change of agency heads does not serve in any way the restoration of democracy, the eradication of graft and corruption, and the rebuilding of confidence in the government if the bona-fide rule and the basic guidelines are not followed. The justification implicit in all these purges, which is to rid the government of the iniquitous vestiges of the past regime or of any regime for that matter is conceded. If the purges were limited to policy making officials, administrators, commissioners, special assistants, directors and other high-ranking personnel there may be some legal basis for their dismissal on a more or less summary inquiry into their shortcomings. However, we fail to see how drivers, messengers, clerks and lower-level employees like most of the petitioners who have been working at ordinary jobs for decades could in any way be iniquitous vestiges of any regime. These low ranking employees, who had nothing to do with martial law or hidden wealth, suffer the most from indiscriminate firings. The issues are not limited to the employees or the departments and/or agencies of the government now before us. For any one who is affected, a termination notice is the equivalent of capital punishment. A driver who has worked 27 years in the government, a budget examiner for 25 years, a messenger for 14 years and many of the other petitioners would find it difficult to find new employment after giving the best years of their humble lives to the government service. And even for those who are reappointed, the damage to the civil service has been done. Instead of amassing credits based on merit or fitness, these employees will be thinking in terms of patronage, as to who might be of help come the next reorganization. We stressed in the case of Meram v. Edralin (154 SCRA 238 [1987]): The principles governing the integrity of the civil service are of universal validity. As stated in the case of Hanley v. Murphy (255 P. 2d. 1, 4): ... The civil service system rests on the principle of application of the merit system instead of the spoils system in the matter of appointment and tenure of office. (Barry v. Jackson, 30 Cal. App. 165, 169, 157 P. 828) To that end the charter establishes a classified civil service system, with exclusive power in the civil service commission to provide qualified personnel, for the various municipal departments and to classify or reclassify positions according to prescribed duties. ... Furthermore, civil service laws are not enacted to penalize anyone. They are designated to eradicate the system of appointment to public office based on political considerations and to eliminate as far as practicable the element of partisanship and

55

personal favoritism in making appointments. These laws intend to establish a merit system of fitness and efficiency as the basis of appointment; to secure more competent employees, and thereby promote better government. (See Gervais v. New Orleans Police Department, 77 So 2d, 393; Civil Service Board of City of Phoenix v. Warren, 244 P 2d 11 57 citing State ex rel. Kos v. Adamson, 226 Minn. 177, 32 N. W. 2d 281, 284). Only a scrupulous adherence to the bona-fide rule will prevent the erosion of the fragile foundations of the Philippine civil service. The development of a truly career and non-partisan civil service is a must in sound developmental planning. Its achievement will not be helped in any way by the kind of reorganization challenged in these petitions. The wounds inflicted by indiscriminate dismissals of all employees, even on those later reappointed to their former positions, win take a long time to heal. If a person is dismissed from his job, he should be informed of the reason. The reason should be in the Civil Service Law or, at least, in the law authorizing the removal. The reason must have a reasonable relationship to the employee's merit and fitness for the job. He must be given, before he is fired, an opportunity to show that the cause for removal does not apply to Mm. Elementary principles of fairness and compassion are essential. Only then can the reconciliation and unity so earnestly sought today be achieved. WHEREFORE, PREMISES CONSIDERED, the Court hereby renders judgment as follows: 1) In G.R. No. 78053, the petition is GRANTED. The LETTER-ORDER dated MARCH 19, 1987 issued by the public respondent which terminated the services of the petitioner is SET ASIDE. The successor of the public respondent, the former Lourdes R. Quisumbing as Secretary of Education, Culture and Sports, is ordered to restore the petitioner to his position as Schools Division Superintendent of Surigao City without loss; of seniority rights and with back salaries reckoned from the date of his termination. 2) In G.R. No. 78625, the petition is GRANTED. All office orders and memoranda issued, pursuant to Executive Order No. 20 are declared null and void. The public respondents or their successors are ordered to immediately restore the petitioners to their positions without loss of seniority rights and with back salaries computed under the new staffing pattern from the dates of their invalid terminations at rates not lower than their former salaries. 3) In G.R. No. 81197 the petition is DISMISSED for being MOOT and ACADEMIC and for the failure of petitioners to prosecute their case. 4) In G.R. No. 81495, the petition is DISMISSED. Except in the cases of those who have retired or opted to be phased out and who have received their separation and retirement benefits, the petitioners are ordered to retain the private respondentsemployees in the reorganized department under the new staffing pattern with positions and salaries comparable or equivalent to their former positions but not lower than their former ranks and salaries. 5) In G.R. No. 81928, the petition is GRANTED. The order dated September 25, 1981 issued by the public respondent which terminated the petitioner's employment is SET ASIDE. The

public respondent or his successor is ordered to reinstate and assign the petitioner to any position closest to his old position in either the STII or SEI in terms of functions, duties, salary emoluments and privileges, and without demotion in his rank, salary and privileges as of September 24, 1987 when the invalid termination of services was effected. 6) In G.R. No. 81998, the petition is GRANTED. The public respondents or their successors are ordered to return the private respondents to their positions with compensation based on comparable or equivalent rates under the new staffing pattern but not lower than their former salaries. 7) In G.R. No. 86504, the petition is DISMISSED. The questioned resolutions of the Civil Service Commission are AFFIRMED. The temporary restraining order issued on September 5, 1989 is lifted. 8) In G.R. No. 86547, the petition is DISMISSED. Except for those who retired or opted to be phased out and who have received their separation and retirement benefits, the petitioner or his successor is ordered to return the private respondents to their former positions or to positions of comparable rank in the reorganized department without loss of seniority rights. 9) In G.R. No. 88951, the petition is DISMISSED. The questioned resolutions of the Civil Service Commission are AFFIRMED. 10) In G.R. No. 89427 the petition is DISMISSED for being MOOT and ACADEMIC. SO ORDERED.

56

G.R. No. 87211 March 5, 1991 JOVENCIO L. MAYOR petitioner, vs. HON. CATALINO MACARAIG, HON. GUILLERMO CARAGUE, HON. RIZALINA CAJUCOM, HON. FRANKLIN DRILON, respondents. LOURDES A. SALES and RICARDO OLAIREZ, petitioners-intervenors. NARVASA, J.:p Five (5) special civil actions are hereby jointly decided because they involve one common, fundamental issue, the constitutionality of Republic Act No. 6715, effective March 21, 1989, in so far as it declares vacant "all positions of the Commissioners, Executive Labor Arbiters and Labor Arbiters of the National Labor Relations Commission," and operates to remove the incumbents upon the appointment and qualification of their successors. The law is entitled, "AN ACT TO EXTEND PROTECTION TO LABOR, STRENGTHEN THE CONSTITUTIONAL RIGHTS OF WORKERS TO SELF-ORGANIZATION, COLLECTIVE BARGAINING AND PEACEFUL CONCERTED ACTIVITIES, FOSTER INDUSTRIAL PEACE AND HARMONY, PROMOTE THE PREFERENTIAL USE OF VOLUNTARY MODES OF SETTLING LABOR DISPUTES AND RE-ORGANIZE THE NATIONAL LABOR RELATIONS COMMISSION, AMENDING PRESIDENTIAL DECREE NO. 441, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES." 1 The provision directly dealing with the reorganization of the National Labor Relations Commission is Section 35. It reads as follows: 2 Sec. 35. Equity of the Incumbent. Incumbent career officials and rank-and-file employees of the National labor Relations Commission not otherwise affected by the Act shall continue to hold office without need of reappointment. However, consistent with the need to professionalize the higher levels of officialdom invested with adjudicatory powers and functions, and to upgrade their qualifications, ranks, and salaries or emoluments, all positions of the Commissioners, Executive Labor Arbiters and Labor Arbiters of the present National Labor Relations Commission are hereby declared vacant. However, subject officials shall continue to temporarily discharge their duties and functions until their successors shall have been duly appointed and qualified. The first of these five consolidated cases was filed by Labor Arbiter Jovencio Ll. Mayor on March 8, 1989. In the year that followed, eight other officers of the Commission, as initiators of their own separate actions or as intervenors, joined Mayor in the attempt to invalidate the reorganization and to be reinstated to their positions in the Government service. G.R. No. 87211: Jovencio Mayor; and Intervenors Lourdes A. Sales and Ricardo Olairez Jovencio Ll. Mayor, a member of the Philippine Bar for fifteen (15) years, was appointed Labor Arbiter in 1986 after he had, according to him, met the prescribed qualifications and passed "a rigid screening process." Fearing that he would be removed from office on account of the expected reorganization, he filed in this Court the action now docketed as G.R. No. 87211. His fears proved groundless, however. He was in fact reappointed a Labor Arbiter on March 8, 1990. Hence, as he himself says, the case became moot as to him. Like Mayor, both intervenors Lourdes A. Sales and Ricardo N. Olairez were appointed Labor Arbiters in 1986, but unlike Mayor, were not among the one hundred fifty-one (151) Labor Arbiters reappointed by the President on March 8, 1990.

G.R. No. 90044; Pascual Y Reyes; and Intervenor Eugenio L Sagmit, Jr. At the time of the effectivity of R.A. No. 6715, Pascual Y. Reyes was holding the office of Executive Director of the National Labor Relations Commission in virtue of an appointment extended to him on May 30, 1975. As specified by Administrative Order No. 10 of the Secretary of Labor, dated July 14, 1975, the functions of his office were "to take charge of all administrative matters of the Commission and to have direct supervision overall units and personnel assigned to perform administrative tasks;" and Article 213 of the Labor Code, as amended, declared that the "Executive Director, assisted by a Deputy Executive Director, shall exercise the administrative functions of the Commission." Reyes states that he has been "a public servant for 42 years," and "is about to retire at sixty-five (65)," in 1991. The petitioner-in-intervention, Eugenio I. Sagmit, Jr., was Reyes' Deputy Executive Director, appointed as such on October 27, 1987 after twenty-five (25) years of government service. Both Reyes and Sagmit were informed that they had been separated from employment upon the effectivity of R.A. No. 6715, pursuant to a Memorandum-Order issued by then Secretary of Labor Franklin Drilon on August 17, 1989 to the effect that the offices of Executive Director and Deputy Executive Director had been abolished by Section 35, in relation to Section 5 of said Act, and "their functions transferred to the Chairman, aided by the Executive Clerk. Reyes moved for reconsideration on August 29, 1989, but when no action was allegedly taken thereon, he instituted the action at bar, G.R. No. 90044. Sagmit was afterwards granted leave to intervene in the action. G.R. No. 91547: Ceferino Dulay, Rosario G. Encarnacion, and Daniel M. Lucas Petitioners Rosario G. Encarnacion and Daniel M. Lucas, Jr. were appointed National Labor Relations Commissioners on October 20, 1986, after the Commission was reorganized pursuant to Executive Order No. 47 of President Aquino. Later, or more precisely on November 19, 1986, Lucas was designated Presiding Commissioner of the Commission's Second Division; and Commissioner Ceferino E. Dulay was appointed Presiding Commissioner of the Third Division. Executive Order No. 252, issued by the President on July 25, 1987, amended Article 215 of the Labor Code by providing that "the Commissioners appointed under Executive Order No. 47 dated September 10, 1986 shall hold office for a term of six (6) years . . . (but of those thus appointed) three shall hold office for four (4) years, and three for two (2) years . . . without prejudice to reappointment." Under Executive Order No. 252, the terms of Encarnacion and Lucas would expire on October 23, 1992, and that of Dulay, on December 18, 1992. On November 18, 1989, R.A. No. 6715 being then already in effect, the President extended to Encarnacion, Lucas and Dulay new appointments as Commissioners of the NLRC despite the fact that, according to them, they had not been served with notice of the termination of their services as incumbent commissioners, and no vacancy existed in their positions. Their new appointments were submitted to Congress, but since Congress adjourned on December 22, 1989 without approving their appointments, said appointments became functus officio. No other appointments were thereafter extended to Encarnacion and Dulay. Lucas was however offered the position of Assistant Regional Director by Secretary Drilon and then by Acting Secretary Dionisio de la Serna (by letter dated January 9, 1990 which referred to his appointment as such Assistant Regional Director supposedly "issued by the President on November 8, 1989"). Lucas declined the offer, believing it imported a demotion.

57

They all pray that their removal be pronounced unconstitutional and void and they be declared Commissioners lawfully in office, or, alternatively, that they be paid all salaries, benefits and emoluments accruing to them for the unexpired portions of their six-year terms and allowed to enjoy retirement benefits under applicable laws (pursuant to R.A. 910 and the Resolution re Judge Mario Ortiz, G. R. No. 78951, June 28, 1988). Of the incumbent Commissioners as of the effectivity of R.A. 6715, six (6) were reappointed, namely: (1) Hon. Edna Bonto Perez (as Presiding Commissioner, Second Division NCR]), (2) Domingo H. Zapanta (Associate Commissioner, Second Division), (3) Lourdes C. Javier (Presiding Commissioner, Third Division [Luzon except NCR]), (4) Ernesto G. Ladrido III (Presiding Commissioner, Fourth Division [Visayas]), (5) Musib M. Buat (Presiding Commissioner, Fifth Division [Mindanao]), and (6) Oscar N. Abella (Associate Commissioner, Fifth Division). Other members appointed to the reorganized Commission were Vicente S.E. Veloso III, Romeo B. Putong, Rustico L. Diokno, Ireneo B. Bernardo, Rogelio I. Rayala, Irenea E. Ceniza, Bernabe S. Batuhan, and Leon G. Gonzaga, Jr. Appointed Chairman was Hon. Bartolome Carale, quondam Dean of the College of Law of the University of the Philippines. G.R. No. 91730: Conrado Maglaya Petitioner Conrado Maglaya alleges that he has been "a member of the Philippine Bar for thirty-six (36) years of which 31 years . . . (had been) devoted to public service, the last 24 years in the field of labor relations law;" that he was appointed Labor Arbiter on May 30, 1975 and "was retained in such position despite the reorganization under the Freedom Constitution of 1986 . . . (and) later promoted to and appointed by the President as Commissioner of the . . . (NLRC) First Division on October 23, 1986." He complains that he was effectively removed from his position as a result of the designation of the full complement of Commissioners in and to all Five Divisions of the NLRC by Administrative Order No. 161 dated November 18, 1989, issued by Labor Secretary Drilon. G.R. No. 94518: Rolando D. Gambito Rolando Gambito passed the bar examinations in 1971, joined the Government service in 1974, serving for sixteen years in the Department of Health, and as Labor Arbiter in the Department of Labor and Employment from October, 1986. He was not included in the list of newly appointed Labor Arbiters released on March 8, 1990; and his attempt to obtain a recosideration of his exclusion therefrom and bring about his reinstatement as Labor Arbiter was unavailing. The Basic Issue A number of issues have been raised and ventilated by the petitioners in their separate pleadings. They may all be reduced to one basic question, relating to the constitutionality of the provisions of Republic Act No. 6715 DECLARING VACANT "all positions of the Commissioners, Executive Labor Arbiters and Labor Arbiters of the present National Labor Relations Commission," 3 according to which the public respondents 1) considered as effectively separated from the service inter alia, all holders of said positions at the time of the effectivity of said Republic Act No. 6715, including the positions of Executive Director and Deputy Executive Director of the Commission, and 2) consequently, thereafter caused the appointment of other persons to the new positions specified in said statute: of Chairman Commissioners, Executive Clerk, Deputy Executive Clerk, and Labor Arbiters of the reorganized National Labor Relations Commission. The old positions were declared vacant because, as the statute states, of "the need to professionalize the higher levels of officialdom invested with adjudicatory powers and functions, and to upgrade their qualifications, ranks, and salaries or emoluments."

As everyone knows, security of tenure is a protected right under the Constitution. The right is secured to all employees in privates as well as in public employment. "No officer or employee in the civil service," the Constitution declares, "shall be removed or suspended except for cause provided by law." 4 There can scarcely be any doubt that each of the petitioners commissioner, administrative officer, or labor arbiter falls within the concept of an "officer or employee in the civil service" since the civil service "embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including governmentowned or controlled corporations with original charters." 5 The Commissioners thus had the right to remain of office until the expiration of the terms for which they had been appointed, unless sooner removed "for cause provided by law." So, too, the Executive Director and Deputy Executive Director, and the Labor Arbiters had the right to retain their positions until the age of compulsory retirement, unless sooner removed "for cause provided by law." None of them could be deemed to be serving at the pleasure of the President. Now, a recognized cause for several or termination of employment of a Government officer or employee is the abolition by law of his office as a result of reorganization carried out by reason of economy or to remove redundancy of functions, or clear and explicit constitutional mandate for such termination of employment. 6Abolition of an office is obviously not the same as the declaration that that office is vacant. While it is undoubtedly a prerogative of the legislature to abolish certain offices, it can not be conceded the power to simply pronounce those offices vacant and thereby effectively remove the occupants or holders thereof from the civil service. Such an act would constitute, on its face, an infringement of the constitutional guarantee of security of tenure, and will have to be struck down on that account. It can not be justified by the professed "need to professionalize the higher levels of officialdom invested with adjudicatory powers and functions, and to upgrade their qualifications, ranks, and salaries or emoluments." The Constitution does not, of course, ordain the abolition of the petitioners' positions of their removal from their offices; and there is no claim that the petitioners' separation from the service is due to a cause other than RA 6715. The inquiry therefore should be whether or not RA 6715 has worked such an abolition of the petitioners' offices, expressly or impliedly. This is the only mode by which, under the circumstances, the petitioners' removal from their positions may be defended and sustained. It is immediately apparent that there is no express abolition in RA 6715 of the petitioners' positions. So, justification must be sought, if at all, in an implied abolition thereof; i.e., that resulting from an irreconcilable inconsistency between the nature, duties and functions of the petitioners' offices under the old rules and those corresponding thereof under the new law. An examination of the relevant provisions of RA 6715, with a view to discovering the changes thereby effected on the nature, composition, powers, duties and functions of the Commission and the Commissioners, the Executive Director, the Deputy Executive Director, and the labor Arbiters under the prior legislation, fails to disclose such essential inconsistencies. 1. Amendments as Regards the NLRC and the Commissioners First, as regards the National Labor Relations Commissioners. A. Nature and Composition of the Commission, Generally 1. Prior to its amendment by RA 6715, Article 213 of the Labor Code envisaged the NLRC as being an integral part of the Department of labor and Employment. "There shall," it said, "be a National Labor Relations Commissionin the Department of Labor and Employment . . . ." RA 6715 would appear to have made the Commission somewhat more autonomous. Article 213 now declares that, "There shall be a National labor Relations Commission which shall be attached to the Department of labor and Employment for program coordination only . . . ."

58

2. Tripartite representation was to a certain extent restored in the Commission. The same Section 213, as amended, now provides that the Chairman and fourteen (14) members composing the NLRC shall be chosen from the workers', employers' and the public sectors, as follows: Five (5) members each shall be chosen from among the nominees of the workers and employers organization, respectively. The Chairman and the four (4) remaining members shall come from the public sector, with the latter to be chosen from among the recommendees of the Secretary of Labor and Employment. However, once they assume office," the members nominated by the workers and employers organizations shall divest themselves of any affiliations with or interest in the federation or association to which they belong." B. Allocation of Powers Between NLRC En Banc and its Divisions Another amendment was made in respect of the allocation of powers and functions between the Commission en banc, on the one hand, and its divisions, on the other. Both under the old and the amended law, the Commission was vested with rule-making and administrative authority, as well as adjudicatory and other powers, functions and duties, and could sit en banc or in divisions of three (3) members each. But whereas under the old law, the cases to be decided en banc and those by a division were determined by rules laid down by the Commission with the approval of the ex officio, Chairman (the Secretary of labor) said Commission, in other words, then exerciseboth administrative and adjudicatory powers the law now, as amended by RA 6715, provides that 1) the Commission "shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches and formulating policies affecting its administration and operations;" but 2) it "shall exercise its adjudicatory and all other powers, functions and duties through its divisions." C. Official Stations, and Appellate Jurisdiction over Fixed Territory Other changes related to the official station of the Commission and its divisions, and the territory over which the divisions could exercise exclusive appellate jurisdiction. 1. Under the old law, the Commission en banc and its divisions had their main office in Metropolitan Manila; and appeals could be taken to them from decisions of Labor Arbiters regardless of the regional office whence the case originated. 2. Under the law now, the First and Second Divisions have their official station in Metropolitan Manila and "handle cases coming from the National Capital Region;" the Third Division has its main office also in Metropolitan Manila but would have appellate jurisdiction over "cases from other parts of Luzon;" and the Fourth and Fifth Divisions have their main offices in Cebu and Cagayan de Oro City, and exercise jurisdiction over cases "from the Visayas and Mindanao," respectively; and the appellate authority of the divisions is exclusive "within their respective territorial jurisdiction." D. Qualifications and Tenure of Commissioners Revisions were also made by RA 6715 with respect to the qualifications and tenure of the National Labor Relations Commissioners.

Prescribed by the old law as qualifications for commissioners appointed for a term of six (6) years were that they (a) by members of the Philippine bar, and (b) have at least five years' experience in handling labor-management relations. 7 RA 6715, on the other hand, requires (a) membership in the bar, (b) engagement in the practice of law for at least 15 years, (c) at least five years' experience or exposure in the field of labormanagement relations, and (d) preferably, residence in the region where the commissioner is to hold office. The commissioners appointed shall hold office during good behavior until they reach the age of sixty-five (65) years, unless they are sooner removed for cause as provided by law or become incapacited to discharge the duties of their office. 2. Amendments Regarding Executive Labor Arbiters and Labor Arbiters A. Qualifications The old provided for one hundred fifty (150) labor arbiters assigned to the different regional offices or branches of the Department of Labor and Employment (including sub-regional branches or provincial extension units), each regional branch being headed by an Executive Labor Arbiter. RA 6715 does not specify any fixed number of labor arbiters, but simply provides that there shall be as many labor arbiters as may be necessary for the effective and efficient operation of the Commission. The old law declared that Executive Labor Arbiters and Labor Arbiters should be members of the Bar, with at least two (2) years experience in the field of labor management relations. They were appointed by the President upon recommendation of the Chairman, and were "subject to the Civil Service Law, rules and regulations." On the other hand, RA 6715 requires that the "Executive Labor Arbiters and Labor Arbiters shall likewise be members of the Philippine Bar," but in addition "must have been in the practice of law in the Philippines for at least seven (7) years, with at least three (3) years experience or exposure in the field of labormanagement relations." For "purposes of reappointment," however, "incumbent Executive Labor Arbiters and Labor Arbiters who have been engaged in the practice of law for at least five (5) years may be considered as already qualified." They are appointed by the President, on recommendation of the Secretary of Labor and Employment, and are subject to the Civil Service Law, rules and regulations. B. Exclusive Original Jurisdiction Before the effectivity of RA 6715, the exclusive original jurisdiction of labor arbiters comprehended the following cases involving all workers, whether agricultural or non-agricultural: (1) Unfair labor practice cases; (2) Those that workers may file involving wages, hours of work and other terms and conditions of employment; (3) All money claims of workers, including those based on nonpayment or underpayment of wages, overtime compensation, separation pay and other benefits provided by law or appropriate agreement, except claims for employees' compensation, social security, medicare and maternity benefits; (4) Cases involving household services; and (5) Cases arising from any violation of Article 265 of this Code, including questions involving the legality of strikes and lockouts. Some changes were introduced by RA 6715, indicated by italics in the enumeration which shortly follows. The exclusive, original

59

jurisdiction of Labor Arbiters now embraces the following involving all workers, whether agricultural or non-agricultural: (1) Unfair labor practice cases; (2) Termination disputes; (3) If accompanies with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; (4) Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;8 (5) Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; (6) Except claims for employees compensation, social security, medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00), whether or not accompanies with a claim for reinstatement. Now, as before, the Labor Arbiters are given thirty (30) calendar days after the submission of the case by the parties to decide the case, without extension, except that the present statute stresses that "even in the absence of stenographic notes," the period to decide is still thirty days, without extension. Furthermore, RA 6715 provides that "Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements." 3. Amendments as Regards the Executive Director and Deputy Executive Director Prior to RA 6715, there was, as earlier stated, an Executive Director, assisted by a Deputy Executive Director, who was charged with the "exercise (of) the administrative functions of the Commission." 9 More particularly, his chief functions were "to take charge of all administrative matters of the Commission and to have direct supervision over all units and personnel assigned to perform administrative tasks." 10 Although not so stated in the law, in the performance of their functions, the Executive Director and the Deputy Executive Director were obviously themselves subject to the supervision and control of the head of office, the ex officio Chairman of the National Labor Relations Commission (the Secretary of Labor), or the Commission itself. Under RA 6715, the Secretary of Labor is no longer ex officio Chairman of the Commission. There has been created the office of Chairman, who "shall have the administrative supervision over the Commission and its regional branches and all its personnel, including the Executive Labor Arbiters and Labor Arbiters." In this function, the law says, he shall be "aided by the Executive Clerk of the Commission." The Executive Clerk appears to be the officer who used to be known under the old law as the Executive Director. The office of Executive Director is nowhere mentioned in RA 6715. Said Executive Clerk is given the additional responsibility of assisting the Commission en banc and the First Division, in performing "such similar or equivalent functions and duties as are discharged by the Clerk of Court . . . of the Court of Appeals." The position of Deputy Executive Clerks have also been created whose main role is to assist the other divisions of the Commission (the second, third, fourth and fifth) "in the performance of such similar or equivalent functions and duties as are discharged by the . . . Deputy Clerk(s) of the Court of Appeals."

Summing up 1. Republic Act No. 6715 did not abolish the NLRC, or change its essential character as a supervisory and adjudicatory body. Under said Act, as under the former law, the NLRC continues to act collegially, whether it performs administrative or rule-making functions or exercises appellate jurisdiction to review decisions and final orders of the Labor Arbiters. The provisions conferring a somewhat greater measure of autonomy; requiring that its membership be drawn from tripartite sectors (workers, employees and the public sector); changing the official stations of the Commission's divisions, and even those prescribing higher or other qualifications for the positions of Commissioner which, if at all, should operate only prospectively, not to mention the fact that the petitioners (in G.R. No. 91547) have asserted without dispute that they possess the new qualifications none of these can be said to work so essential or radical a revision of the nature, powers and duties of the NLRC as to justify a conclusion that the Act in truth did not merely declare vacant but actually abolished the offices of commissioners and created others in their place. 2. Similar considerations yield the same conclusion as far as the positions of Labor Arbiters are concerned, there being no essential inconsistency on that score between Republic Act No. 6715 and the old law. The Labor Arbiters continue to exercise the same basic power and function: the adjudication, in the first instance, of certain classes of labor disputes. Their original and exclusive jurisdiction remains substantially the same under both the old law and the new. Again, their incumbents' constitutionally guaranteed security of tenure cannot be defeated by the provision for higher or other qualifications than were prescribed under the old law; said provision can only operate prospectively and as to new appointees to positions regularly vacated; and there is, besides, also no showing that the petitioning Arbiters do not qualify under the new law. 3. The position titles of "Executive Clerk" and "Deputy Executive Clerk(s)" provided for in RA 6715 are obviously not those of newly-created offices, but new appellations or designations given to the existing positions of Executive Director and Deputy Executive Director. There is no essential change from the prescribed and basically administrative duties of these positions and, at the same time, no mention in the Act of the former titles, from which the logical conclusion is that what was intended was merely a change in nomenclature, not an express or implied abolition. Neither does the Act specify the qualifications for Executive Clerk and Deputy Executive Clerks. There is no reason to suppose that these could be higher than those for Executive Director and Deputy Executive Director, or that anything inheres in these positions that would preclude their incumbents from being named Executive Clerk and Deputy Executive Clerks. WHEREFORE, the petitions are, as they must be, GRANTED , and the following specific dispositions are hereby RENDERED: 1. In G.R. No. 91547, and G.R. No. 91730, the removal of petitioners Rosario G. Encarnacion, Daniel M. Lucas, Jr., Ceferino E. Dulay, and Conrado Maglaya as Commissioners of the NLRC is ruled unconstitutional and void; however, to avoid displacement of any of the incumbent Commissioners now serving, it not appearing that any of them is unfit or has given cause for removal, and conformably to the alternative prayer of the petitioners themselves, it is ORDERED that said petitioners be paid all salaries, benefits and emoluments accruing to them for the unexpired portions of their six-year terms and allowed to enjoy retirement benefits under applicable laws, pursuant to RA No. 910 and this Court's Resolution in Ortiz vs. Commission on Elections, G.R. No. 79857, 161 SCRA 812; This disposition does not involve or apply to respondent Hon. Bartolome Carale, who replaced the Secretary of Labor as ex officio Chairman of the NLRC pursuant to RA 6715, none of the petitioners having been affected or in any manner prejudiced by his appointment and incumbency as such;

60

2. In G.R. No. 90044, the removal of petitioner Pascual Y. Reyes and petitioner-in-intervention Eugenio L. Sagmit, Jr. as NLRC Executive Director and Deputy Executive Director, respectively, is likewise declared unconstitutional and void, and they are ordered reinstated as Executive Clerk and Deputy Executive Clerk, respectively, unless they opt for retirement, in either case with full back salaries, emoluments and benefits from the date of their removal to that of their reinstatement; and 3. In G.R. Nos. 87211, and 94518, petitioners-intervenors Lourdes A. Sales and Ricardo Olairez and petitioner Rolando D. Gambito, having also been illegally removed as Labor Arbiters, are ordered reinstated to said positions with full back salaries, emoluments and benefits from the dates of their removal up to the time they are reinstated. No pronouncement as to costs. SO ORDERED.

G.R. No. 133132

January 25, 2000

ALEXIS C. CANONIZADO, EDGAR DULA TORRES, and ROGELIO A. PUREZA, petitioners, vs. HON. ALEXANDER P. AGUIRRE, as Executive Secretary, HON. EMILIA T. BONCODIN, as Secretary of Budget and Management, JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME and VIRGINIA U. CRISTOBAL, respondents. GONZAGA-REYES, J.: The central issue posed before this Court in the present case is the constitutionality of Republic Act No. 8851 (RA 8551), otherwise known as the "Philippine National Police Reform and Reorganization Act of 1998,"1 by virtue of which petitioners herein, who were all members of the National Police Commission (NAPOLCOM), were separated from office. Petitioners claim that such law violates their constitutionally guaranteed right to security of tenure. The NAPOLCOM was originally created under Republic Act No. 6975 (RA 6975), entitled "An Act Establishing The Philippine National Police Under A Reorganized Department Of The Interior And Local Government, And For Other Purposes." Under RA 6975, the members of the NAPOLCOM were petitioners Edgar Dula Torres, Alexis C. Canonizado, Rogelio A. Pureza and respondent Jose Percival L. Adiong. Dula Torres was first appointed to the NAPOLCOM on January 8, 1991 for a six year term. He was re-appointed on January 23, 1997 for another six years. Canonizado was appointed on January 25, 1993 to serve the unexpired term of another Commissioner which ended on December 31, 1995. On August 23, 1995, Canonizado was reappointed for another six years. Pureza was appointed on January 2, 1997 for a similar term of six years. Respondent Adiong's appointment to the NAPOLCOM was issued on July 23, 1996. None of their terms had expired at the time the amendatory law was passed.2 On March 6, 1998, RA 8551 took effect; it declared that the terms of the current Commissioners were deemed as expired upon its effectivity. Pursuant thereto, President Ramos appointed Romeo L. Cairme on March 11, 1998 as a member of the NAPOLCOM for a full six year term. On the same date, Adiong, was given a term extension of two years since he had served less than two years of his previous term. Cairme and Adiong both took their oaths of office on April 6, 1998.3 Completing the membership of the NAPOLCOM are Leo S. Magahum and Cleofe M. Factoran, who were appointed by President Estrada on June 30, 1998 and who took their oaths of office on July 2, 1998.4 According to petitioners, sections 4 and 8 of RA 8551 are unconstitutional. Section 4, amending section 13 of Republic Act No. 6975, provides Sec. 13. Creation and Composition. A National Police Commission, hereinafter referred to as the Commission, is hereby created for the purpose of effectively discharging the functions prescribed in the Constitution and provided in this Act. The Commission shall be an agency attached to the Department for policy and program coordination. It shall be composed of a Chairperson, four (4) regular Commissioners, and the Chief of the PNP as ex-officio member. Three (3) of the regular Commissioners shall come from the civilian sector who are neither active nor former members of the police or military, one (1) of whom shall be designated as vice chairperson by the President. The fourth regular Commissioner shall come from the law enforcement sector either active or retired: Provided, That an active member of a law enforcement agency shall be considered resigned from said agency once appointed to the Commission: Provided further, That at least one (1) of the Commissioners shall be a woman. The Secretary of the Department shall be the exofficio Chairperson of the Commission, while the Vice Chairperson shall act as the executive officer of the Commission.

61

Meanwhile, section 8 states that Upon the effectivity of this Act, the terms of office of the current Commissioners are deemed expired which shall constitute a bar to their reappointment or an extension of their terms in the Commission except for current Commissioners who have served less than two (2) years of their terms of office who may be appointed by the President for a maximum term of two (2) years. Petitioners argue that their removal from office by virtue of section 8 of RA 8551 violates their security of tenure.1wphi1.nt It is beyond dispute that petitioners herein are members of the civil service, which embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.5 As such, they cannot be removed or suspended from office, except for cause provided by law.6 The phrase "except for cause provided by law" refers to ". . . reasons which the law and sound public policy recognize as sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient."7 Public respondents insist that the express declaration in section 8 of RA 8551 that the terms of petitioners' offices are deemed expired discloses the legislative intent to impliedly abolish the NAPOLCOM created under RA 6975 pursuant to a bona fide reorganization. In support of their theory, public respondents cite the various changes introduced by RA 8551 in the functions, composition and character of the NAPOLCOM as proof of Congress' intention to abolish the body created under RA 6975 in order to replace it with a new NAPOLCOM which is more civilian in nature, in compliance with the constitutional mandate. Petitioners' posit the theory that the abolition of petitioners' offices was a result of a reorganization of the NAPOLCOM allegedly effected by RA 8551.8 The creation and abolition of public offices is primarily a legislative function.9 It is acknowledged that Congress may abolish any office it creates without impairing the officer's right to continue in the position held10 and that such power may be exercised for various reasons, such as the lack of funds11 or in the interest of economy.12However, in order for the abolition to be valid, it must be made in good faith, not for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees.13 An abolition of office connotes an intention to do away with such office wholly and permanently, as the word "abolished" denotes.14 Where one office is abolished and replaced with another office vested with similar functions, the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul15 we said: It is true that a valid and bona fide abolition of an office denies to the incumbent the right to security of tenure. [De la Lanna v. Alba, 112 SCRA 294 (1982)]. However, in this case, the renaming and restructuring of the PGH and its component units cannot give rise to a valid and bona fide abolition of the position of PGH Director. This is because where the abolished office and the offices created in its place have similar functions, the abolition lacks good faith. [Jose L. Guerrero v. Hon. Antonio Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108 (1990)]. We hereby apply the principle enunciated in Cesar Z. Dario vs. Hon. Salvador M. Mison [176 SCRA 84 (1989)] that abolition which merely changes the nomenclature of positions is invalid and does not result in the removal of the incumbent. The above notwithstanding, and assuming that the abolition of the position of the PGH Director and the creation of a UP-PGH Medical Center Director are valid, the removal of the incumbent is still not justified for the reason that the duties and functions of the two positions are basically the same. . . . (emphasis supplied) This was also our ruling in Guerrero v. Arizabal,16 wherein we declared that the substantial identity in the functions between the two offices was indicia of bad faith in the removal of petitioner pursuant to a reorganization.

We come now to the case at bench. The question that must first be resolved is whether or not petitioners were removed by virtue of a valid abolition of their office by Congress. More specifically, whether the changes effected by RA 8551 in reference to the NAPOLCOM were so substantial as to effectively create a completely new office in contemplation of the law. In answer to this query, the case of Mayor v. Macaraig17 is squarely in point. In that case, the petitioners assailed the constitutionality of Republic Act No. 671518 insofar as it declared vacant the positions of the Commissioners, Executive Labor Arbiters and Labor Arbiters of the National Labor Relations Commission and provided for the removal of the incumbents upon the appointment and qualification of their successors.19 The Court held that the removal of petitioners was unconstitutional since Republic Act No. 6715 did not expressly or impliedly abolish the offices of petitioners, there being no irreconcilable inconsistency in the nature, duties and functions of the petitioners' offices under the old law and the new law. Thus: Abolition of an office is obviously not the same as the declaration' that that office is vacant. While it is undoubtedly a prerogative of the legislature to abolish certain offices, it can not be conceded the power to simply pronounce those offices vacant and thereby effectively remove the occupants or holders thereof from the civil service. Such an act would constitute, on its face, an infringement of the constitutional guarantee of security of tenure, and will have to be struck down on that account. It can not be justified by the professed "need to professionalize the higher levels of officialdom invested with adjudicatory powers and functions, and to upgrade their qualifications, ranks, and salaries or emoluments. This is precisely what RA 8851 seeks to do declare the offices of petitioners vacant, by declaring that "the terms of office of the current Commissioners are deemed expired," thereby removing petitioners herein from the civil service. Congress may only be conceded this power if it is done pursuant to a bona fide abolition of the NAPOLCOM. RA 8551 did not expressly abolish petitioners' positions. In order to determine whether there has been an implied abolition, it becomes necessary to examine the changes introduced by the new law in the nature, composition and functions of the NAPOLCOM. Under RA 6975, the NAPOLCOM was described as a collegial body within the Department of the Interior and Local Government,20 (Department) whereas under RA 8551 it is made "an agency attached to the Department for policy and program coordination."21 Contrary to what public respondents would have us believe, this does not result in the creation of an entirely new office. In Mayor, the NLRC, prior to the passage of the amendatory law, was also considered an integral part of the Department of Labor and Employment. RA 6715, however, changed that by declaring that it shall instead ". .be attached to the Department of Labor and Employment for program coordination only. . . ." making it a more autonomous body. The Court held that this change in the NLRC's nature was not sufficient to justify a conclusion that the new law abolished the offices of the labor commissioners. Another amendment pointed out by public respondents is the revision of the NAPOLCOM's composition. RA 8551 expanded the membership of the NAPOLCOM from four to five Commissioners by adding the Chief of the PNP as an ex-officio member. In addition, the new law provided that three of the regular Commissioners shall come from the civilian sector who are neither active nor former members of the police or military, and that the fourth regular Commissioner shall come from the law enforcement sector either active or retired. Furthermore, it is required that at least one of the Commissioners shall be a woman."22 Again, as we held in Mayor, such revisions do not constitute such essential changes in the nature of the NAPOLCOM as to result in an implied abolition of such office. It will be noted that the organizational structure of the NAPOLCOM, as provided in section 20 of RA 6975 as amended by section 10 of RA 8551,23 remains essentially the same and that, except for the

62

addition of the PNP Chief as ex-officio member, the composition of the NAPOLCOM is also substantially identical under the two laws. Also, under both laws, the Secretary of the Department shall act as the ex-officio Chairman of the Commission and the ViceChairman shall be one of the Commissioners designated by the President.24 Finally, the powers and duties of the NAPOLCOM remain basically unchanged by the amendments. Under RA 6975, the Commission has the following powers and functions: (a) Exercise administrative control over the Philippine National Police; (b) Advise the President on all matters involving police functions and administration; (c) Foster and develop policies and promulgate rules and regulations, standards and procedures to improve police services based on sound professional concepts and principles; (d) Examine and audit, and thereafter establish the standards for such purposes on a continuing basis, the performance, activities, and facilities of all police agencies throughout the country; (e) Prepare a police manual prescribing rules and regulations for efficient organization, administration, and operation, including recruitment, selection, promotion and retirement; (f) Establish a system of uniform crime reporting; (g) Conduct surveys and compile statistical data for the proper evaluation of the efficiency and effectiveness of all police units in the country; (h) Render to the President and to Congress an annual report on its activities and accomplishments during the (30) days after the end of the calendar year, which shall include an appraisal of the conditions obtaining in the organization and administration of police agencies in the municipalities, cities and provinces throughout the country, and recommendation for appropriate remedial legislation; (i) Approve or modify, through the National Appellate Board, personnel disciplinary actions involving demolition or dismissal from the service imposed upon members of the Philippine National Police by the Chief of the Philippine National Police; (j) Affirm reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion or dismissal from the service imposed upon members of the Philippine National Police by the Chief of the Philippine National Police; (k) Exercise appellate jurisdiction through the regional appellate boards over administrative cases against policemen and over decisions on claims for police benefits; (l) Recommend to the President, through the Secretary, within sixty (60) days before the commencement of each calendar year, a crime prevention; (m) Prescribe minimum standards for arms, equipment, and uniforms and, after consultation with the Philippine Heraldry Commission, for insignia of ranks, awards and medals of honor; (n) Issue subpoena and subpoena duces tecum in matters pertaining to the discharge of its own powers and duties, and designate who among its personnel can issue such processes and administer oaths in connection therewith; and

(o) Perform such other functions necessary to carry out the provisions of this Act and as the President may direct. Meanwhile, the NAPOLCOM's functions under section 5 of RA 8551 are: a) Exercise administrative control and operational supervision over the Philippine National Police which shall mean the power to: 1) Develop policies and promulgate a police manual prescribing rules and regulations for efficient organization, administration, and operation, including criteria for manpower allocation, distribution and deployment, recruitment, selection , promotion, and retirement of personnel and the conduct of qualifying entrance and promotional examinations for uniformed members; 2) Examine and audit, and thereafter establish the standards for such purposes on a continuing basis, the performance, activities and facilities of all police agencies throughout the country; 3) Establish a system of uniform crime reporting; 4) Conduct an annual self-report survey and compile statistical date for the accurate assessment of the crime situation and the proper evaluation of the efficiency and effectiveness of all police units in the country; 5) Approve or modify plans and programs on education and training, logistical requirements, communications, records, information systems, crime laboratory, crime prevention and crime reporting; 6) Affirm, reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion or dismissal from the service imposed upon members of the Philippine National Police by the Chief of the Philippine National Police; 7) Exercise appellate jurisdiction through the regional appellate boards over administrative cases against policemen and over decisions on claims for police benefits; 8) Prescribe minimum standards for arms, equipment, and uniforms and after consultation with the Philippine Heraldry Commission, for insignia of ranks, awards, and medals of honor. Within ninety (90) days from the effectivity of this Act, the standards of the uniformed personnel of the PNP must be revised which should be clearly distinct from the military and reflective of the civilian character of the police; 9) Issue subpoena and subpoena duces tecum in matters pertaining to the discharge of its own powers and duties, and designate who among its personnel can issue such processes and administer oaths in connection therewith; 10) Inspect and assess the compliance of the PNP on the established criteria for manpower allocation, distribution, and deployment and their impact on the community and the crime situation, and therewith formulate appropriate guidelines for maximization of resources and effective utilization of the PNP personnel;

63

11) Monitor the performance of the local chief executives as deputies of the Commission; and 12) Monitor and investigate police anomalies and irregularities. b) Advise the President on all matters involving police functions and administration; c) Render to the President and to the Congress an annual report on its activities and accomplishments during the thirty (30) days after the end of the calendar year, which shall include an appraisal of the conditions obtaining in the organization and administration of police agencies in the municipalities, cities and provinces throughout the country, and recommendations for appropriate remedial legislation; d) Recommend to the President, through the Secretary, within sixty (60) days before the commencement of each calendar year, a crime prevention program; and e) Perform such other functions necessary to carry out the provisions of this Act and as the President may direct. Clearly, the NAPOLCOM continues to exercise substantially the same administrative, supervisory, rule-making, advisory and adjudicatory functions. Public respondents argue that the fact that the NAPOLCOM is now vested with administrative control and operational supervision over the PNP, whereas under RA 6975 it only exercised administrative control should be construed as evidence of legislative intent to abolish such office.25 This contention is bereft of merit. Control means "the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the that of the latter."26 On the other hand, to supervise is to oversee, to have oversight of, to superintend the execution of or the performance of a thing, or the movements or work of a person, to inspect with authority; it is the power or authority of an officer to see that subordinate officers perform their duties.27 Thus, the power of control necessarily encompasses the power of supervision and adding the phrase "operational supervision" under the powers of the NAPOLCOM would not bring about a substantial change in its functions so as to arrive at the conclusion that a completely new office has been created. Public respondents would have this Court believe that RA 8551 reorganized the NAPOLCOM resulting in the abolition of petitioners' offices. We hold that there has been absolutely no attempt by Congress to effect such a reorganization. Reorganization takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them.28 It involves a reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.29Naturally, it may result in the loss of one's position through removal or abolition of an office. However, for a reorganization to be valid, it must also pass the test of good faith, laid down in Dario v. Mison:30 . . . As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions,

or where claims of economy are belied by the existence of ample funds. It is exceedingly apparent to this Court that RA 8551 effected a reorganization of the PNP, not of the NAPOLCOM. They are two separate and distinct bodies, with one having supervision and control over the other. In fact, it is the NAPOLCOM that is given the duty of submitting a proposed reorganization plan of the PNP to Congress.31 As mentioned earlier, the basic structure of the NAPOLCOM has been preserved by the amendatory law. There has been no revision in its lines of control, authority and responsibility, neither has there been a reduction in its membership, nor a consolidation or abolition of the offices constituting the same. Adding the Chief of the PNP as an exofficio member of the Commission does not result in a reorganization. No bona fide reorganization of the NAPOLCOM having been mandated by Congress, RA 8551, insofar as it declares the terms of office of the incumbent Commissioners, petitioners herein, as expired and resulting in their removal from office, removes civil service employees from office without legal cause and must therefore be struck down for being constitutionally infirm. Petitioners are thus entitled to be reinstated to office. It is of no moment that there are now new appointees to the NAPOLCOM. It is a well-entrenched principle that when a regular government employee is illegally dismissed, his position never became vacant under the law and he is considered as not having left his office. The new appointments made in order to replace petitioners are not valid.32 At this juncture, we note that it is alleged by public respondents that on June 30, 1998, Canonizado accepted an appointment by President Estrada as the Inspector General of Internal Affairs Services (IAS) of the PNP, pursuant to sections 40 and 41 of RA 8551 and that he took his oath of office before the President on July 7, 1998. However, this is a mere allegation on the part of public respondents of which this Court cannot take judicial notice. Furthermore, this issue has not been fully ventilated in the pleadings of the parties. Therefore, such allegation cannot be taken into consideration by this Court in passing upon the issues in the present case. Petitioners also assail the constitutionality of section 4 of RA 8551 insofar as it limits the law enforcement sector to only one position on the Commission and categorizes the police as being part of the law enforcement sector despite section 6 of Article XVI of the Constitution which provides that the police force shall be civilian in character. Moreover, it is asserted by petitioners that the requirement in section 4 that one of the Commissioners shall be a woman has no rational basis and is therefore discriminatory. They claim that it amounts to class legislation and amounts to an undue restriction upon the appointing power of the President as provided under section 16 of Article VII of the Constitution.33 In view of our ruling upon the unconstitutionality of petitioners' removal from office by virtue of section 8 of RA 8551, we find that there is no longer any need to pass upon these remaining constitutional questions. It is beyond doubt that the legislature has the power to provide for the composition of the NAPOLCOM since it created such body. Besides, these questions go into the very wisdom of the law, and unquestionably lie beyond the normal prerogatives of the Court to pass upon.34 WHEREFORE, we grant the petition, but only to the extent of declaring section 8 of RA 8551 unconstitutional for being in violation of the petitioners' right to security of tenure. The removal from office of petitioners as a result of the application of such unconstitutional provision of law and the appointment of new Commissioners in their stead is therefore null and void. Petitioners herein are entitled to REINSTATEMENT and to the payment of full backwages to be reckoned from the date they were removed from office.35 SO ORDERED.

64