EN BANC

[G.R. NO. 155027 : February 28, 2006]

THE VETERANS FEDERATION OF THE PHILIPPINES represented by Esmeraldo R. Acorda,Petitioner, v. Hon.
ANGELO T. REYES in his capacity as Secretary of National Defense; and Hon. EDGARDO E. BATENGA in his
capacity as Undersecretary for Civil Relations and Administration of the Department of National
Defense, Respondents.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, with a prayer to declare as
void Department Circular No. 04 of the Department of National Defense (DND), dated 10 June 2002.
Petitioner in this case is the Veterans Federation of the Philippines (VFP), a corporate body organized under Republic Act No.
2640, dated 18 June 1960, as amended, and duly registered with the Securities and Exchange Commission. Respondent
Angelo T. Reyes was the Secretary of National Defense (DND Secretary) who issued the assailed Department Circular No. 04,
dated 10 June 2002. Respondent Edgardo E. Batenga was the DND Undersecretary for Civil Relations and Administration who
was tasked by the respondent DND Secretary to conduct an extensive management audit of the records of petitioner.
The factual and procedural antecedents of this case are as follows:
Petitioner VFP was created under Rep. Act No. 2640,1 a statute approved on 18 June 1960.
On 15 April 2002, petitioner's incumbent president received a letter dated 13 April 2002 which reads:
Col. Emmanuel V. De Ocampo (Ret.)
President
Veterans Federation of the Philippines
Makati, Metro Manila
Dear Col. De Ocampo:
Please be informed that during the preparation of my briefing before the Cabinet and the President last March 9, 2002, we
came across some legal bases which tended to show that there is an organizational and management relationship between
Veterans Federation of the Philippines and the Philippine Veterans Bank which for many years have been inadvertently
overlooked.
I refer to Republic Act 2640 creating the body corporate known as the VFP and Republic Act 3518 creating the Phil. Vets [sic]
Bank.
1. RA 2640 dated 18 June 60 Section 1 ... "hereby created a body corporate, under the control and supervision of the
Secretary of National Defense."

2. RA 2640 Section 12 ... "On or before the last day of the month following the end of each fiscal year, the Federation shall
make and transmit to the President of the Philippines or to the Secretary of National Defense, a report of its proceedings for
the past year, including a full, complete and itemized report of receipts and expenditures of whatever kind."
3. Republic Act 3518 dated 18 June 1963 (An Act Creating the Philippine Veterans Bank, and for Other Purposes) provides in
Section 6 that ... "the affairs and business of the Philippine Veterans Bank shall be directed and its property managed,
controlled and preserved, unless otherwise provided in this Act, by a Board of Directors consisting of eleven (11) members to
be composed of three ex officio members to wit: the Philippine Veterans Administrator, the President of the Veteran's
Federation of the Philippines and the Secretary of National Defense x x x.
It is therefore in the context of clarification and rectification of what should have been done by the DND (Department of
National Defense) for and about the VFP and PVB that I am requesting appropriate information and report about these two
corporate bodies.
Therefore it may become necessary that a conference with your staffs in these two bodies be set.
Thank you and anticipating your action on this request.
Very truly yours,
(SGD) ANGELO T. REYES
[DND] Secretary
On 10 June 2002, respondent DND Secretary issued the assailed DND Department Circular No. 04 entitled, "Further
Implementing the Provisions of Sections 12 and 23 of Republic Act No. 2640," the full text of which appears as follows:
Department of National Defense
Department Circular No. 04
Subject: Further Implementing the Provisions of Sections 1 & 2 of
Republic Act No. 2640
Authority: Republic Act No. 2640
Executive Order No. 292 dated July 25, 1987
Section 1
These rules shall govern and apply to the management and operations of the Veterans Federation of the Philippines (VFP)
within the context provided by EO 292 s-1987.
Section 2 - DEFINITION OF TERMS - for the purpose of these rules, the terms, phrases or words used herein shall, unless the
context indicates otherwise, mean or be understood as follows:
Supervision and Control - it shall include authority to act directly whenever a specific function is entrusted by law or
regulation to a subordinate; direct the performance of a duty; restrain the commission of acts; approve, reverse or modify
acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe
standards, guidelines, plans and programs.
Power of Control - power to alter, modify, nullify or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former to that of the latter.
Supervision - means overseeing or the power of an officer to see to it that their subordinate officers perform their duties; it
does not allow the superior to annul the acts of the subordinate.

Administrative Process - embraces matter concerning the procedure in the disposition of both routine and contested matters,
and the matter in which determinations are made, enforced or reviewed.
Government Agency - as defined under PD 1445, a government agency or agency of government or "agency" refers to any
department, bureau or office of the national government, or any of its branches or instrumentalities, of any political
subdivision, as well as any government owned or controlled corporation, including its subsidiaries, or other self-governing
board or commission of the government.
Government Owned and Controlled Corporation (GOCC) - refer to any agency organized as a stock or non-stock corporation,
vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government
directly or through its instrumentalities wholly or, where applicable as in the case of stock corporations, to the extent of at
least 50% of its capital stock.
Fund - sum of money or other resources set aside for the purpose of carrying out specific activities or attaining certain
objectives in accordance with special regulations, restrictions or limitations and constitutes an independent, fiscal and
accounting entity.
Government Fund - includes public monies of every sort and other resources pertaining to any agency of the government.
Veteran - any person who rendered military service in the land, sea or air forces of the Philippines during the revolution
against Spain, the Philippine American War, World War II, including Filipino citizens who served in Allied Forces in the
Philippine territory and foreign nationals who served in Philippine forces; the Korean campaign, the Vietnam campaign, the
Anti-dissidence campaign, or other wars or military campaigns; or who rendered military service in the Armed Forces of the
Philippines and has been honorably discharged or separated after at least six (6) years total cumulative active service or
sooner separated due to the death or disability arising from a wound or injury received or sickness or disease incurred in line
of duty while in the active service.
Section 3 - Relationship Between the DND and the VFP
3.1 Sec 1 of RA 3140 provides "... the following persons (heads of various veterans associations and organizations in the
Philippines) and their associates and successors are hereby created a body corporate, under the control and supervision of
the Secretary of National Defense, under the name, style and title of "Veterans Federation of the Philippines ..."
The Secretary of National Defense shall be charged with the duty of supervising the veterans and allied program under the
jurisdiction of the Department. It shall also have the responsibility of overseeing and ensuring the judicious and effective
implementation of veterans assistance, benefits, and utilization of VFP assets.
3.2 To effectively supervise and control the corporate affairs of the Federation and to safeguard the interests and welfare of
the veterans who are also wards of the State entrusted under the protection of the DND, the Secretary may personally or
through a designated representative, require the submission of reports, documents and other papers regarding any or all of
the Federation's business transactions particularly those relating to the VFP functions under Section 2 of RA 2640.
The Secretary or his representative may attend conferences of the supreme council of the VFP and such other activities he
may deem relevant.
3.3 The Secretary shall from time to time issue guidelines, directives and other orders governing vital government activities
including, but not limited to, the conduct of elections; the acquisition, management and dispositions of properties, the
accounting of funds, financial interests, stocks and bonds, corporate investments, etc. and such other transactions which may
affect the interests of the veterans.
3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD 1445) i.e.
government funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the
specific purpose for which the trust was created or the funds received; fiscal responsibility shall, to the greatest extent, be
shared by all those exercising authority over the financial affairs, transactions, and operations of the federation;
disbursements or dispositions of government funds or property shall invariably bear the approval of the proper officials.
Section 4 - Records of the FEDERATION

As a corporate body and in accordance with appropriate laws, it shall keep and carefully preserve records of all business
transactions, minutes of meetings of stockholders/members of the board of directors reflecting all details about such activity.
All such records and minutes shall be open to directors, trustees, stockholders, and other members for inspection and copies
of which may be requested.
As a body corporate, it shall submit the following: annual report; proceedings of council meetings; report of operations
together with financial statement of its assets and liabilities and fund balance per year; statement of revenues and expenses
per year; statement of cash flows per year as certified by the accountant; and other documents/reports as may be necessary
or required by the SND.
Section 5 - Submission of Annual and Periodic Report
As mandated under appropriate laws, the following reports shall be submitted to the SND, to wit:
A. Annual Report to be submitted not later than every January 31 of the following year. Said report shall consist of the
following:
1. Financial Report of the Federation, signed by the Treasurer General and Auditor General;
2. Roster of Members of the Supreme Council;
3. Roster of Members of the Executive Board and National Officers; and

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4. Current listing of officers and management of VFP.

b. Report on the proceedings of each Supreme Council Meeting to be submitted not later than one month after the meeting;
c. Report of the VFP President as may be required by SND or as may be found necessary by the President of the Federation;
d. Resolutions passed by the Executive Board and the Supreme Council for confirmation to be submitted not later than one
month after the approval of the resolution;
e. After Operation/Activity Reports to be submitted not later than one month after such operation or activity;
Section 6 - Penal Sanctions
As an attached agency to a regular department of the government, the VFP and all its instrumentalities, officials and
personnel shall be subject to the penal provisions of such laws, rules and regulations applicable to the attached agencies of
the government.
In a letter dated 6 August 2002 addressed to the President of petitioner, respondent DND Secretary reiterated his instructions
in his earlier letter of 13 April 2002.
Thereafter, petitioner's President received a letter dated 23 August 2002 from respondent Undersecretary, informing him that
Department Order No. 129 dated 23 August 2002 directed "the conduct of a Management Audit of the Veterans Federation of
the Philippines."4 The letter went on to state that respondent DND Secretary "believes that the mandate given by said law
can be meaningfully exercised if this department can better appreciate the functions, responsibilities and situation on the
ground and this can be done by undertaking a thorough study of the organization." 5
Respondent Undersecretary also requested both for a briefing and for documents on personnel, ongoing projects and
petitioner's financial condition. The letter ended by stating that, after the briefing, the support staff of the Audit Committee
would begin their work to meet the one-month target within which to submit a report.
A letter dated 28 August 2003 informed petitioner's President that the Management Audit Group headed by the
Undersecretary would be paying petitioner a visit on 30 August 2002 for an update on VFP's different affiliates and the
financial statement of the Federation.

Subsequently, the Secretary General of the VFP sent an undated letter to respondent DND Secretary, with notice to
respondent Undersecretary for Civil Relations and Administration, complaining about the alleged broadness of the scope of
the management audit and requesting the suspension thereof until such time that specific areas of the audit shall have been
agreed upon.
The request was, however, denied by the Undersecretary in a letter dated 4 September 2002 on the ground that a specific
timeframe had been set for the activity.
Petitioner thus filed this Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, praying for
the following reliefs:
1. For this Court to issue a temporary restraining order and a writ of preliminary prohibitory and mandatory injunction to
enjoin respondent Secretary and all those acting under his discretion and authority from: (a) implementing DND Department
Circular No. 04; and (b) continuing with the ongoing management audit of petitioner's books of account;
2. After hearing the issues on notice '
A. Declare DND Department Circular No. 04 as null and void for being ultra vires;
b. Convert the writ of prohibition, preliminary prohibitory and mandatory injunction into a permanent one. 6
GIVING DUE COURSE TO THE PETITION
Petitioner asserts that, although cases which question the constitutionality or validity of administrative issuances are
ordinarily filed with the lower courts, the urgency and substantive importance of the question on hand and the public interest
attendant to the subject matter of the petition justify its being filed with this Court directly as an original action. 7
It is settled that the Regional Trial Court and the Court of Appeals also exercise original jurisdiction over petitions
for certiorari and prohibition. As we have held in numerous occasions, however, such concurrence of original jurisdiction does
not mean that the party seeking extraordinary writs has the absolute freedom to file his petition in the court of his
choice.8 Thus, in Commissioner of Internal Revenue v. Leal,9 we held that:
Such concurrence of original jurisdiction among the Regional Trial Court, the Court of Appeals and this Court, however, does
not mean that the party seeking any of the extraordinary writs has the absolute freedom to file his petition in the court of his
choice. The hierarchy of courts in our judicial system determines the appropriate forum for these petitions. Thus, petitions for
the issuance of the said writs against the first level (inferior) courts must be filed with the Regional Trial Court and those
against the latter, with the Court of Appeals. A direct invocation of this Court's original jurisdiction to issue these writs should
be allowed only where there are special and important reasons therefor, specifically and sufficiently set forth in the petition.
This is the established policy to prevent inordinate demands upon the Court's time and attention, which are better devoted to
matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Thus, it was proper for
petitioner to institute the special civil action for certiorari with the Court of Appeals assailing the RTC order denying his
motion to dismiss based on lack of jurisdiction.
The petition itself, in this case, does not specifically and sufficiently set forth the special and important reasons why the Court
should give due course to this petition in the first instance, hereby failing to fulfill the conditions set forth in Commissioner of
Internal Revenue v. Leal.10 While we reiterate the policies set forth in Leal and allied cases and continue to abhor the
propensity of a number of litigants to disregard the principle of hierarchy of courts in our judicial system, we, however,
resolve to take judicial notice of the fact that the persons who stand to lose in a possible protracted litigation in this case are
war veterans, many of whom have precious little time left to enjoy the benefits that can be conferred by petitioner
corporation. This bickering for the power over petitioner corporation, an entity created to represent and defend the interests
of Filipino veterans, should be resolved as soon as possible in order for it to once and for all direct its resources to its rightful
beneficiaries all over the country. All these said, we hereby resolve to give due course to this petition.
ISSUES
Petitioner mainly alleges that the rules and guidelines laid down in the assailed Department Circular No. 04 expanded the
scope of "control and supervision" beyond what has been laid down in Rep. Act No. 2640. 11 Petitioner further submits the
following issues to this Court:

1. Was the challenged department circular passed in the valid exercise of the respondent Secretary's "control and
supervision"?
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2. Could the challenged department circular validly lay standards classifying the VFP, an essentially civilian organization,
within the ambit of statutes only applying to government entities?
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3. Does the department circular, which grants respondent direct management control on the VFP, unduly encroach on the
prerogatives of VFP's governing body?
At the heart of all these issues and all of petitioner's prayers and assertions in this case is petitioner's claim that it is a private
non-government corporation.
CENTRAL ISSUE:
IS THE VFP A PRIVATE CORPORATION?

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Petitioner claims that it is not a public nor a governmental entity but a private organization, and advances this claim to prove
that the issuance of DND Department Circular No. 04 is an invalid exercise of respondent Secretary's control and
supervision.12
This Court has defined the power of control as "the power of an officer to alter or modify or nullify or set aside what a
subordinate has done in the performance of his duties and to substitute the judgment of the former to that of the
latter."13 The power of supervision, on the other hand, means "overseeing, or the power or authority of an officer to see that
subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step
as prescribed by law to make them perform their duties." 14 These definitions are synonymous with the definitions in the
assailed Department Circular No. 04, while the other provisions of the assailed department circular are mere consequences of
control and supervision as defined.
Thus, in order for petitioner's premise to be able to support its conclusion, petitioners should be deemed to imply either of
the following: (1) that it is unconstitutional/impermissible for the law (Rep. Act No. 2640) to grant control and/or supervision
to the Secretary of National Defense over a private organization, or (2) that the control and/or supervision that can be
granted to the Secretary of National Defense over a private organization is limited, and is not as strong as they are defined
above.
The following provision of the 1935 Constitution, the organic act controlling at the time of the creation of the VFP in 1960, is
relevant:
Section 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations, unless such corporations are owned and controlled by the Government or any subdivision or instrumentality
thereof.15
On the other hand, its counterparts in the 1973 and 1987 constitutions are the following:
Section 4. The National Assembly shall not, except by general law, provide for the formation, organization, or regulation of
private corporations, unless such corporations are owned or controlled by the government or any subdivision or
instrumentality thereof.16
Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations. Government-owned and controlled corporations may be created or established by special charters in the
interest of the common good and subject to the test of economic viability.17
From the foregoing, it is crystal clear that our constitutions explicitly prohibit the regulation by special laws of private
corporations, with the exception of government-owned or controlled corporations (GOCCs). Hence, it would be impermissible
for the law to grant control of the VFP to a public official if it were neither a public corporation, an unincorporated
governmental entity, nor a GOCC.18 Said constitutional provisions can even be read to prohibit the creation itself of the VFP if
it were neither of the three mentioned above, but we cannot go into that in this case since there is no challenge to the
creation of the VFP in the petition as to permit this Court from considering its nullity.

Petitioner vigorously argues that the VFP is a private non-government organization, pressing on the following contentions:
1. The VFP does not possess the elements which would qualify it as a public office, particularly the possession/delegation of a
portion of sovereign power of government to be exercised for the benefit of the public;
2. VFP funds are not public funds because '
a) No budgetary appropriations or government funds have been released to the VFP directly or indirectly from the
Department of Budget and Management (DBM);
b) VFP funds come from membership dues;
c) The lease rentals raised from the use of government lands reserved for the VFP are private in character and do not belong
to the government. Said rentals are fruits of VFP's labor and efforts in managing and administering the lands for VFP
purposes and objectives. A close analogy would be any Filipino citizen settling on government land and who tills the land for
his livelihood and sustenance. The fruits of his labor belong to him and not to the owner of the land. Such fruits are not
public funds.
3. Although the juridical personality of the VFP emanates from a statutory charter, the VFP retains its essential character as a
private, civilian federation of veterans voluntarily formed by the veterans themselves to attain a unity of effort, purpose and
objectives, e.g. '
A. The members of the VFP are individual members and retirees from the public and military service;
b. Membership in the VFP is voluntary, not compulsory;
c. The VFP is governed, not by the Civil Service Law, the Articles of War nor the GSIS Law, but by the Labor Code and the
SSS Law;
d. The VFP has its own Constitution and By-Laws and is governed by a Supreme Council who are elected from and by the
members themselves;
4. The Administrative Code of 1987 does not provide that the VFP is an attached agency, nor does it provide that it is an
entity under the control and supervision of the DND in the context of the provisions of said code.
5. The DBM declared that the VFP is a non-government organization and issued a certificate that the VFP has not been a
direct recipient of any funds released by the DBM.
These arguments of petitioner notwithstanding, we are constrained to rule that petitioner is in fact a public corporation.
Before responding to petitioner's allegations one by one, here are the more evident reasons why the VFP is a public
corporation:
(1) Rep. Act No. 2640 is entitled "An Act to Create a Public Corporation to be Known as the Veterans Federation of the
Philippines, Defining its Powers, and for Other Purposes."
(2) Any action or decision of the Federation or of the Supreme Council shall be subject to the approval of the Secretary of
Defense.19
(3) The VFP is required to submit annual reports of its proceedings for the past year, including a full, complete and itemized
report of receipts and expenditures of whatever kind, to the President of the Philippines or to the Secretary of National
Defense.20
(4) Under Executive Order No. 37 dated 2 December 1992, the VFP was listed as among the government-owned and
controlled corporations that will not be privatized.
(5) In Ang Bagong Bayani - OFW Labor Party v. COMELEC, 21 this Court held in a minute resolution that the "VFP [Veterans
Federation Party] is an adjunct of the government, as it is merely an incarnation of the Veterans Federation of the Philippines.

And now to answer petitioner's reasons for insisting that it is a private corporation:
1. Petitioner claims that the VFP does not possess the elements which would qualify it as a public office, particularly the
possession/delegation of a portion of sovereign power of government to be exercised for the benefit of the public;
In Laurel v. Desierto,22 we adopted the definition of Mechem of a public office, that it is "the right, authority and duty, created
and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit
of the public."
In the same case, we went on to adopt Mechem's view that the delegation to the individual of some of the sovereign
functions of government is "[t]he most important characteristic" in determining whether a position is a public office or
not.23 Such portion of the sovereignty of the country, either legislative, executive or judicial, must attach to the office for the
time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a
public officer. The most important characteristic which distinguishes an office from an employment or contract is that the
creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government,
to be exercised by him for the benefit of the public; - that some portion of the sovereignty of the country, either legislative,
executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of
this nature, the individual is not a public officer.24 The issue, therefore, is whether the VFA's officers have been delegated
some portion of the sovereignty of the country, to be exercised for the public benefit.
In several cases, we have dealt with the issue of whether certain specific activities can be classified as sovereign functions.
These cases, which deal with activities not immediately apparent to be sovereign functions, upheld the public sovereign
nature of operations needed either to promote social justice 25 or to stimulate patriotic sentiments and love of country.26
As regards the promotion of social justice as a sovereign function, we held in Agricultural Credit and Cooperative Financing
Administration (ACCFA) v. Confederation of Unions in Government Corporations and Offices (CUGCO), 27 that the compelling
urgency with which the Constitution speaks of social justice does not leave any doubt that land reform is not an optional but
a compulsory function of sovereignty. The same reason was used in our declaration that socialized housing is likewise a
sovereign function.28 Highly significant here is the observation of former Chief Justice Querube Makalintal:
The growing complexities of modern society, however, have rendered this traditional classification of the functions of
government [into constituent and ministrant functions] quite unrealistic, not to say obsolete. The areas which used to be left
to private enterprise and initiative and which the government was called upon to enter optionally, and only "because it was
better equipped to administer for the public welfare than is any private individual or group of individuals," continue to lose
their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign
capacity if it is to meet the increasing social challenges of the times. Here[,] as almost everywhere else[,] the tendency is
undoubtedly towards a greater socialization of economic forces. Here, of course, this development was envisioned, indeed
adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social
justice.29 (Emphasis supplied.)
It was, on the other hand, the fact that the National Centennial Celebrations was calculated to arouse and stimulate patriotic
sentiments and love of country that it was considered as a sovereign function in Laurel v. Desierto. 30 In Laurel, the Court then
took its cue from a similar case in the United States involving a Fourth of July fireworks display. The holding of the Centennial
Celebrations was held to be an executive function, as it was intended to enforce Article XIV of the Constitution which provides
for the conservation, promotion and popularization of the nation's historical and cultural heritage and resources, and artistic
relations.
In the case at bar, the functions of petitioner corporation enshrined in Section 4 of Rep. Act No. 2640 31 should most certainly
fall within the category of sovereign functions. The protection of the interests of war veterans is not only meant to promote
social justice, but is also intended to reward patriotism. All of the functions in Section 4 concern the well-being of war
veterans, our countrymen who risked their lives and lost their limbs in fighting for and defending our nation. It would be
injustice of catastrophic proportions to say that it is beyond sovereignty's power to reward the people who defended her.
Like the holding of the National Centennial Celebrations, the functions of the VFP are executive functions, designed to
implement not just the provisions of Rep. Act No. 2640, but also, and more importantly, the Constitutional mandate for the
State to provide immediate and adequate care, benefits and other forms of assistance to war veterans and veterans of
military campaigns, their surviving spouses and orphans. 32

2. Petitioner claims that VFP funds are not public funds.

Petitioner claims that its funds are not public funds because no budgetary appropriations or government funds have been
released to the VFP directly or indirectly from the DBM, and because VFP funds come from membership dues and lease
rentals earned from administering government lands reserved for the VFP.
The fact that no budgetary appropriations have been released to the VFP does not prove that it is a private corporation. The
DBM indeed did not see it fit to propose budgetary appropriations to the VFP, having itself believed that the VFP is a private
corporation.33 If the DBM, however, is mistaken as to its conclusion regarding the nature of VFP's incorporation, its previous
assertions will not prevent future budgetary appropriations to the VFP. The erroneous application of the law by public officers
does not bar a subsequent correct application of the law.34
Nevertheless, funds in the hands of the VFP from whatever source are public funds, and can be used only for public purposes.
This is mandated by the following provisions of Rep. Act No. 2640:
(1) Section 2 provides that the VFP can only "invest its funds for the exclusive benefit of the Veterans of the Philippines;"
(2) Section 2 likewise provides that "(a)ny action or decision of the Federation or of the Supreme Council shall be subject to
the approval of the Secretary of National Defense." Hence, all activities of the VFP to which the Supreme Council can apply its
funds are subject to the approval of the Secretary of National Defense;
(3) Section 4 provides that "the Federation shall exist solely for the purposes of a benevolent character, and not for the
pecuniary benefit of its members;"
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(4) Section 6 provides that all funds of the VFP in excess of operating expenses are "reserved for disbursement, as the
Supreme Council may authorize, for the purposes stated in Section two of this Act;"
(5) Section 10 provides that "(a)ny donation or contribution which from time to time may be made to the Federation by the
Government of the Philippines or any of its subdivisions, branches, offices, agencies or instrumentalities shall be expended by
the Supreme Council only for the purposes mentioned in this Act."; and finally,
(6) Section 12 requires the submission of annual reports of VFP proceedings for the past year, including a full, complete and
itemized report of receipts and expenditures of whatever kind, to the President of the Philippines or to the Secretary of
National Defense.
It is important to note here that the membership dues collected from the individual members of VFP's affiliate organizations
do not become public funds while they are still funds of the affiliate organizations. A close reading of Section 1 35 of Rep. Act
No. 2640 reveals that what has been created as a body corporate is not the individual membership of the affiliate
organizations, but merely the aggregation of the heads of the affiliate organizations. Thus, only the money remitted by the
affiliate organizations to the VFP partake in the public nature of the VFP funds.
In Republic v. COCOFED,36 we held that the Coconut Levy Funds are public funds because, inter alia, (1) they were meant to
be for the benefit of the coconut industry, one of the major industries supporting the national economy, and its farmers; and
(2) the very laws governing coconut levies recognize their public character. The same is true with regard to the VFP funds. No
less public is the use for the VFP funds, as such use is limited to the purposes of the VFP which we have ruled to be sovereign
functions. Likewise, the law governing VFP funds (Rep. Act No. 2640) recognizes the public character of the funds as shown
in the enumerated provisions above.
We also observed in the same COCOFED case that "(e)ven if the money is allocated for a special purpose and raised by
special means, it is still public in character."37 In the case at bar, some of the funds were raised by even more special means,
as the contributions from affiliate organizations of the VFP can hardly be regarded as enforced contributions as to be
considered taxes. They are more in the nature of donations which have always been recognized as a source of public funding.
Affiliate organizations of the VFP cannot complain of their contributions becoming public funds upon the receipt by the VFP,
since they are presumed aware of the provisions of Rep. Act No. 2640 which not only specifies the exclusive purposes for
which VFP funds can be used, but also provides for the regulation of such funds by the national government through the
Secretary of National Defense. There is nothing wrong, whether legally or morally, from raising revenues through nontraditional methods. As remarked by Justice Florentino Feliciano in his concurring opinion in Kilosbayan, Incorporated v.
Guingona, Jr.38 where he explained that the funds raised by the On-line Lottery System were also public in nature, thus:

x x x [T]he more successful the government is in raising revenues by non-traditional methods such as PAGCOR operations
and privatization measures, the lesser will be the pressure upon the traditional sources of public revenues, i.e., the pocket
books of individual taxpayers and importers.
Petitioner additionally harps on the inapplicability of the case of Laurel v. Desierto 39 which was cited by Respondents.
Petitioner claims that among the reasons National Centennial Commission Chair Salvador Laurel was considered a public
officer was the fact that his compensation was derived from public funds. Having ruled that VFP funds from whatever source
are public funds, we can safely conclude that the Supreme Council's compensation, taken as they are from VFP funds under
the term "operating expenses" in Section 6 of Rep. Act No. 2640, are derived from public funds. The particular nomenclature
of the compensation taken from VFP funds is not even of relevance here. As we said in Laurel concerning compensation as an
element of public office:
Under particular circumstances, "compensation" has been held to include allowance for personal expenses, commissions,
expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution or a balancing of accounts,
salary, and wages.40
3. Petitioner argues that it is a civilian federation where membership is voluntary.
Petitioner claims that the Secretary of National Defense "historically did not indulge in the direct or 'micromanagement' of the
VFP precisely because it is essentially a civilian organization where membership is voluntary." 41 This reliance of petitioner on
what has "historically" been done is erroneous, since laws are not repealed by disuse, custom, or practice to the
contrary.42 Furthermore, as earlier stated, the erroneous application of the law by public officers does not bar a subsequent
correct application of the law.43
Neither is the civilian nature of VFP relevant in this case. The Constitution does not contain any prohibition, express or
implied, against the grant of control and/or supervision to the Secretary of National Defense over a civilian organization. The
Office of the Secretary of National Defense is itself a civilian office, its occupant being an alter ego of the civilian
Commander-in-Chief. This set-up is the manifestation of the constitutional principle that civilian authority is, at all times,
supreme over the military.44 There being no such constitutional prohibition, the creation of a civilian public organization by
Rep. Act No. 2640 is not rendered invalid by its being placed under the control and supervision of the Secretary of National
Defense.
Petitioner's stand that the VFP is a private corporation because membership thereto is voluntary is likewise erroneous. As
stated above, the membership of the VFP is not the individual membership of the affiliate organizations, but merely the
aggregation of the heads of such affiliate organizations. These heads forming the VFP then elect the Supreme Council and the
other officers,45 of this public corporation.
4. Petitioner claims that the Administrative Code of 1987 does not provide that the VFP is an attached agency, and nor does
it provide that it is an entity under the control and supervision of the DND in the context of the provisions of said code.
The Administrative Code, by giving definitions of the various entities covered by it, acknowledges that its enumeration is not
exclusive. The Administrative Code could not be said to have repealed nor enormously modified Rep. Act No. 2640 by
implication, as such repeal or enormous modification by implication is not favored in statutory construction. 46
5. Petitioner offers as evidence the DBM opinion that the VFP is a non-government organization in its certification that the
VFP "has not been a direct recipient of any funds released by the DBM."
Respondents claim that the supposed declaration of the DBM that petitioner is a non-government organization is not
persuasive, since DBM is not a quasi-judicial agency. They aver that what we have said of the Bureau of Local Government
Finance (BLGF) in Philippine Long Distance Telephone Company (PLDT) v. City of Davao 47 can be applied to DBM:
In any case, it is contended, the ruling of the Bureau of Local Government Finance (BLGF) that petitioner's exemption from
local taxes has been restored is a contemporaneous construction of Section 23 [of R.A. No. 7925 and, as such, is entitled to
great weight.
The ruling of the BLGF has been considered in this case. But unlike the Court of Tax Appeals, which is a special court created
for the purpose of reviewing tax cases, the BLGF was created merely to provide consultative services and technical assistance
to local governments and the general public on local taxation and other related matters. Thus, the rule that the "Court will

not set aside conclusions rendered by the CTA, which is, by the very nature of its function, dedicated exclusively to the study
and consideration of tax problems and has necessarily developed an expertise on the subject, unless there has been an
abuse or improvident exercise of authority" cannot apply in the case of the BLGF.
On this score, though, we disagree with respondents and hold that the DBM's appraisal is considered persuasive.
Respondents misread the PLDT case in asserting that only quasi-judicial agencies' determination can be considered
persuasive. What the PLDT case points out is that, for an administrative agency's opinion to be persuasive, the administrative
agency involved (whether it has quasi-judicial powers or not) must be an expert in the field they are giving their opinion on.
The DBM is indeed an expert on determining what the various government agencies and corporations are. This determination
is necessary for the DBM to fulfill its mandate:
Sec. 2. Mandate. - The Department shall be responsible for the formulation and implementation of the National Budget with
the goal of attaining our national socio-economic plans and objectives.
The Department shall be responsible for the efficient and sound utilization of government funds and revenues to effectively
achieve our country's development objectives.48
The persuasiveness of the DBM opinion has, however, been overcome by all the previous explanations we have laid so far. It
has also been eclipsed by another similarly persuasive opinion, that of the Department of National Defense embodied in
Department Circular No. 04. The DND is clearly more of an expert with respect to the determination of the entities under it,
and its Administrative Rules and Regulations are entitled to great respect and have in their favor the presumption of
legality.49
The DBM opinion furthermore suffers from its lack of explanation and justification in the "certification of non-receipt" where
said opinion was given. The DBM has not furnished, in said certification or elsewhere, an explanation for its opinion that VFP
is a non-government organization.
THE FATE OF DEPARTMENT CIRCULAR NO. 04
Our ruling that petitioner is a public corporation is determinative of whether or not we should grant petitioner's prayer to
declare Department Circular No. 04 void.
Petitioner assails Department Circular No. 04 on the ground that it expanded the scope of control and supervision beyond
what has been laid down in Rep. Act No. 2640. Petitioner alleges that "(t)he equation of the meaning of `control' and
`supervision' of the Administrative Code of 1987 as the same `control and supervision' under Rep. Act No. 2640, takes out
the context of the original legislative intent from the peculiar surrounding circumstances and conditions that brought about
the creation of the VFP."50 Petitioner claims that the VFP "was intended as a self-governing autonomous body with a Supreme
Council as governing authority," and that the assailed circular "pre-empts VFP's original self-governance and autonomy (in)
representing veterans organizations, and substitutes government discretion and decisions to that of the veterans' own
determination."51 Petitioner says that the circular's provisions practically render the Supreme Council inutile, despite its being
the statutory governing body of the VFP.52
As previously mentioned, this Court has defined the power of control as "the power of an officer to alter or modify or nullify
or set aside what a subordinate has done in the performance of his duties and to substitute the judgment of the former to
that of the latter."53 The power of supervision, on the other hand, means "overseeing, or the power or authority of an officer
to see that subordinate officers perform their duties."54 Under the Administrative Code of 1987:55
Supervision and control shall include the authority to act directly whenever a specific function is entrusted by law or
regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or
modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and
prescribe standards, guidelines, plans and programs. x x x
The definition of the power of control and supervision under Section 2 of the assailed Department Circular are synonymous
with the foregoing definitions. Consequently, and considering that petitioner is a public corporation, the provisions of the
assailed Department Circular No. 04 did not supplant nor modify the provisions of Republic Act No. 2640, thus not violating
the settled rule that "all such (administrative) issuances must not override, but must remain consistent and in harmony with

the law they seek to apply or implement. Administrative rules and regulations are intended to carry out, neither to supplant
nor to modify, the law."56
Section 3.2 of the assailed department circular, which authorizes the Secretary of National Defense to "x x x personally or
through a designated representative, require the submission of reports, documents and other papers regarding any or all of
the Federation's business functions, x x x."
as well as Section 3.3 which allows the Secretary of DND to
x x x [F]rom time to time issue guidelines, directives and other orders governing vital government activities including, but
not limited to, the conduct of elections, the acquisition, management and dispositions of properties, the accounting of funds,
financial interests, stocks and bonds, corporate investments, etc. and such other transactions which may affect the interests
of the veterans.
are merely consequences of both the power of control and supervision granted by Rep. Act No. 2640. The power to alter or
modify or nullify or set aside what a subordinate has done in the performance of his duties, or to see to it that subordinate
officers perform their duties in accordance with law, necessarily requires the ability of the superior officer to monitor, as
closely as it desires, the acts of the subordinate.
The same is true with respect to Sections 4 and 5 of the assailed Department Circular No. 04, which requires the
preservation of the records of the Federation and the submission to the Secretary of National Defense of annual and periodic
reports.
Petitioner likewise claims that the assailed DND Department Circular No. 04 was never published, and hence
void.57 Respondents deny such non-publication.58
We have put forth both the rule and the exception on the publication of administrative rules and regulations in the case of
Taada v. Tuvera:59
x x x Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued
by administrative superiors concerning the rules on guidelines to be followed by their subordinates in the performance of
their duties.
Even assuming that the assailed circular was not published, its validity is not affected by such non-publication for the reason
that its provisions fall under two of the exceptions enumerated in Taada.
Department Circular No. 04 is an internal regulation. As we have ruled, they are meant to regulate a public corporation under
the control of DND, and not the public in general. As likewise discussed above, what has been created as a body corporate by
Rep. Act No. 2640 is not the individual membership of the affiliate organizations of the VFP, but merely the aggregation of
the heads of the affiliate organizations. Consequently, the individual members of the affiliate organizations, who are not
public officers, are beyond the regulation of the circular.
Sections 2, 3 and 6 of the assailed circular are additionally merely interpretative in nature. They add nothing to the law. They
do not affect the substantial rights of any person, whether party to the case at bar or not. In Sections 2 and 3, control and
supervision are defined, mentioning actions that can be performed as consequences of such control and supervision, but
without specifying the particular actions that shall be rendered to control and supervise the VFP. Section 6, in the same vein,
merely state what the drafters of the circular perceived to be consequences of being an attached agency to a regular
department of the government, enumerating sanctions and remedies provided by law that may be availed of whenever
desired.
Petitioner then objects to the implementation of Sec. 3.4 of the assailed Department Circular, which provides that 3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD 1445) i.e.
government funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the

specific purpose for which the trust was created or the funds received; fiscal responsibility shall, to the greatest extent, be
shared by all those exercising authority over the financial affairs, transactions, and operations of the federation;
disbursements or dispositions of government funds or property shall invariably bear the approval of the proper officials.
Since we have also previously determined that VFP funds are public funds, there is likewise no reason to declare this
provision invalid. Section 3.4 is correct in requiring the VFP funds to be used for public purposes, but only insofar the term
"public purposes" is construed to mean "public purposes enumerated in Rep. Act No. 2640."
Having in their possession public funds, the officers of the VFP, especially its fiscal officers, must indeed share in the fiscal
responsibility to the greatest extent.
As to petitioner's allegation that VFP was intended as a self-governing autonomous body with a Supreme Council as
governing authority, we find that the provisions of Rep. Act No. 2640 concerning the control and supervision of the Secretary
of National Defense clearly withholds from the VFP complete autonomy. To say, however, that such provisions render the VFP
inutile is an exaggeration. An office is not rendered inutile by the fact that it is placed under the control of a higher office.
These subordinate offices, such as the executive offices under the control of the President, exercise discretion at the first
instance. While their acts can be altered or even set aside by the superior, these acts are effective and are deemed the acts
of the superior until they are modified. Surely, we cannot say that the offices of all the Department Secretaries are worthless
positions.
In sum, the assailed DND Department Circular No. 04 does not supplant nor modify and is, on the contrary, perfectly in
consonance with Rep. Act No. 2640. Petitioner VFP is a public corporation. As such, it can be placed under the control and
supervision of the Secretary of National Defense, who consequently has the power to conduct an extensive management
audit of petitioner corporation.
WHEREFORE, the Petition is hereby DISMISSED for lack of merit. The validity of the Department of National Defense
Department Circular No. 04 is AFFIRMED.
SO ORDERED.

THIRD DIVISION
[G.R. No. 114795. July 17, 1996.]
LUCITA Q. GARCES, Petitioner, v. THE HONORABLE COURT OF APPEALS, SALVADOR EMPEYNADO and CLAUDIO
CONCEPCION, Respondents.

SYLLABUS

1. ADMINISTRATIVE LAW; LAW OF PUBLIC OFFICERS; A TRANSFER WITHOUT CONSENT IS TANTAMOUNT TO REMOVAL. A
transfer requires a prior appointment. If the transfer was made without the consent of the official concerned, it is tantamount
to removal without valid cause contrary to the fundamental guarantee on non-removal except for cause.
2. ID.; ID.; ACCEPTANCE; INDISPENSABLE TO COMPLETE AN APPOINTMENT. Acceptance, it must be emphasized, is
indispensable to complete an appointment.
3. ID.; ID.; THERE CAN BE NO APPOINTMENT TO A NON-VACANT POSITION. It is a basic precept in the law of public
officers that "no person, no matter how qualified and eligible he is for a certain position may be appointed to an office which
is not vacant. There can be no appointment to a non-vacant position. The incumbent must first be legally removed, or his
appointment validly terminated before one could be validly installed to succeed him.
4. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; QUO WARRANTO DISTINGUISHED FROM MANDAMUS. Quo warranto tests
the title to ones office claimed by another and has as its object the ouster of the holder from its enjoyment, while mandamus
avails to enforce clear legal duties and not to try disputed titles.

RESOLUTION

FRANCISCO, J.:

Questioned in this petition for review is the decision 1 of the Court of Appeals 2 (CA), as well as its resolution, which affirmed
the decision of the Regional Trial Court 3 (RTC) of Zamboanga del Norte in dismissing a petition for mandamus against a
Provincial Election Supervisor and an incumbent Election Registrar.
The undisputed facts are follows:

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Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del Norte on July 27, 1986. She was to
replace respondent Election Registrar Claudio Concepcion, who, in turn, was transferred to Liloy, Zamboanga del Norte. 4
Correspondingly approved by the Civil Service Commission, 5 both appointments were to take effect upon assumption of
office. Concepcion, however, refused to transfer post as he did not request for it. 6 Garces, on the other hand, was directed
by the Office of Assistant Director for Operations to assume the Gutalac post. 7 But she was not able to do so because of a
Memorandum issued by respondent Provincial Election Supervisor Salvador Empeynado that prohibited her from assuming
office in Gutalac as the same is not vacant. 8
On February 24, 1987, Garces was directed by the same Office of Assistant Director to defer her assumption of the Gutalac
post. On April 15, 1987, she received a letter from the Acting Manager, Finance Service Department, with an enclosed check
to cover for the expenses on construction of polling booths. It was addressed "Mrs. Lucita Garces E.R. Gutalac, Zamboanga
del Norte" which Garces interpreted to mean as superseding the defendant order. 9 Meanwhile, since respondent Concepcion
continued occupying the Gutalac office, the COMELEC en banc cancelled his appointment to Liloy. 10
On February 26, 1988, Garces filed before the RTC a petition for mandamus with preliminary prohibitory and mandatory
injunction and damages against Empeynado 11 and Concepcion, among others. Meantime, the COMELEC en banc through a
Resolution dated June 3, 1988, resolved to recognize respondent Concepcion as the Election Registrar of Gutalac, 12 and
ordered that the appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled. 13 In view thereof, respondent
Empeynado moved to dismiss the petition for mandamus alleging that the same was rendered moot and academic by the
said COMELEC Resolution, and that the case is cognizable only by the COMELEC under Sec. 7 Art. IX-A of the 1987
Constitution. The RTC, thereafter, dismissed the petition for mandamus on two grounds, viz., (1) that quo warranto is the

proper remedy, 14 and (2) that the "cases" or "matters" referred under the constitution pertain only to those involving the
conduct of elections. On appeal, respondent CA affirmed the RTCs dismissal of the case. Hence, this petition.
The issues raised are purely legal. First, is petitioners action for mandamus proper? And, second, is this case cognizable by
the RTC or by the Supreme Court?
On the first issue, Garces claims that she has a clear legal right to the Gutalac post which was deemed vacated at the time of
her appointment and qualification. Garces insists that the vacancy was created by Section 2, Article III of the Provisional
Constitution. 15 On the contrary, Concepcion posits that he did not vacate his Gutalac post as he did not accept the transfer
to Liloy.
Article III Section 2 of the Provisional Constitution provides:

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"All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise
provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if
such is made within a period of one year from February 25, 1986." (Emphasis supplied).
The above organic provision did not require any cause for removal of an appointive official under the 1973 Constitution. 16
The transition period from the old to the new Constitution envisioned an "automatic" vacancy; 17 hence the government is
not hard put to prove anything plainly and simply because the Constitution allows it. 18 Mere appointment and qualification
of the successor removes an incumbent from his post. Nevertheless, the government in an act of auto-limitation and to
prevent indiscriminate dismissal of government personnel issued on May 28, 1986, Executive Order (E.O.) No. 17. This
executive order, which applies in this case as it was passed prior to the issuance of Concepcions transfer order, enumerates
five grounds for separation or replacement of elective and appointive officials authorized under Article III, Section 2 of the
Provisional Constitution, to wit:
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"1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;
2. Existence of the 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."
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Not one of those grounds was alleged to exist, much less proven by petitioner when respondent Concepcion was transferred
from Gutalac to Liloy. More, Concepcion was transferred without his consent. A transfer requires a prior appointment. 19 If
the transfer was made without the consent of the official concerned, it is tantamount to removal without valid cause 20
contrary to the fundamental guarantee on non-removal except for cause. 21 Concepcions transfer thus becomes legally
infirm and without effect for he was not validly terminated. His appointment to the Liloy post, in fact, was incomplete
because he did not accept it. Acceptance, it must be emphasized, is indispensable to complete an appointment. 22
Corollarily, Concepcions post in Gutalac never became vacant. It is a basic precept in the law of public officers that "no
person, no matter how qualified and eligible he is for a certain position may be appointed to an office which is not vacant. 23
There can be no appointment to a non-vacant position. The incumbent must first be legally removed, or his appointment
validly terminated before one could be validly installed to succeed him. Further, Garces appointment was ordered to be
deferred by the COMELEC. The deferment order, we note, was not unequivocably lifted. Worse, her appointment to Gutalac
was even cancelled by the COMELEC en banc.
These factors negate Garces claim for a well-defined, clear, certain legal right to the Gutalac post. On the contrary, her right
to the said office is manifestly doubtful and highly questionable. As correctly ruled by respondent court, mandamus, which
petitioner filed below, will not lie as this remedy applies only where petitioners right is founded clearly in law and not when it
is doubtful. 24 It will not issue to give him something to which he is not clearly and conclusively entitled. 25 Considering that
Concepcion continuously occupies the disputed position and exercises the corresponding functions therefor, the proper
remedy should have been quo warranto and not mandamus. 26 Quo warranto tests the title to ones office claimed by
another and has as its object ouster of the holder from its enjoyment, while mandamus avails to enforce clear legal duties
and not to try disputed titles. 27
Garces heavy reliance with the 1964 Tulawie 28 case is misplaced for material and different factual considerations. Unlike in
this case, the disputed office of "Assistant Provincial Agriculturist" in the case of Tulawie is clearly vacant and petitioner
Tulawies appointment was confirmed by the higher authorities making his claim to the disputed position clear and certain.
Tulawies petition for mandamus, moreover, was against the Provincial Agriculturist who never claimed title to the contested
office. In this case, there was no vacancy in the Gutalac post and petitioners appointment to which she could base her claim
was revoked making her claim uncertain.
Coming now to the second issue.

The jurisdiction of the RTC was challenged by respondent Empeynado 29 contending that this is a "case" or "matter"
cognizable by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution cancelling the
appointment of Garces as Election Registrar of Gutalac, he argues, should be raised only on certiorari before the Supreme
Court and not before the RTC, else the latter court becomes a reviewer of an en banc COMELEC resolution contrary to Sec. 7,
Art. IX-A..
The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:

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"Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days
from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution
upon the filing of the last pleading, brief, or memorandum required by the rules of the commission or by the commission
itself. Unless otherwise provided by this constitution or by law, any decision, order, or ruling of each commission may be
brought to the supreme court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."
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This provision is inapplicable as there was no case or matter filed before the COMELEC. On the contrary, it was the
COMELECs resolution that triggered this controversy. The "case" or "matter" referred to by the constitution must be
something within the jurisdiction of the COMELEC, i.e., must pertain to an election dispute. the settled rule is that "decision.
rulings, order" of the COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7, Art. IX-A are those
relate to the COMELECs exercise of its adjudicatory or quasi-judicial powers 30 involving "elective regional, provincial and
city officials." 31 In this case, what is being assailed is the COMELECs choice of an appointee to occupy the Gutalac Post
which is an administrative duty done for the operational set-up of an agency. 32 The controversy involves an appointive, not
an elective, official. Hardly can this matter call for the certiorari jurisdiction of the Supreme Court. To rule otherwise surely
burden the Court with trivial administrative questions that are best ventilated before the RTC, a court which the law vests
with the power to exercise original jurisdiction over "all cases not within the exclusive jurisdiction of any court, tribunal,
person or body exercising judicial or quasi-judicial functions." 33
WHEREFORE, premises considered, the petition for review is hereby DENIED without prejudice to the filing of the proper
action with the appropriate body.
SO ORDERED.

EN BANC
[G.R. No. 99336. June 9, 1992.]
MELANIO S. TORIO, Petitioner, v. CIVIL SERVICE COMMISSION, NATIONAL PRINTING OFFICE, OFFICE OF THE
PRESS SECRETARY and EFREN CAMACHO, Respondents.
[G.R. No. 100178. June 9, 1992.]
JAIME ESPANOLA, Petitioner, v. CIVIL SERVICE COMMISSION, LETTY CANGAYDA, NATIONAL PRINTING OFFICE
and THE OFFICE OF THE PRESS SECRETARY, Respondents.
Faustino S. Tugade, Jr., for Petitioners.
Ernesto M. Tomaneng for respondent Camacho.
Dioscoro T. Lachica for respondent Cangayda.

SYLLABUS

1. ADMINISTRATIVE LAW; CIVIL SERVICE; APPOINTMENTS; A TEMPORARY APPOINTMENT AND A PERMANENT APPOINTMENT
ARE TWO DISTINCT ACTS OF THE APPONTING AUTHORITY. A permanent appointment is not a continuation of the
temporary appointment these are two distinct acts of the appointing authority. The fact that the appointees in the two
appointments are one and the same person is purely incidental. Any irregularities in the former appointment are not to be
automatically carried over to the latter. If the protest is directed against the temporary appointment, it would be illogical to
carry-over the merits of the protest to the subsequent permanent appointment. It must be emphasized that if a protest filed
against a temporary appointment is carried over to the subsequent permanent appointment to the same position of the same
person, an anomalous situation will arise wherein the permanent appointees security to his position would be jeopardized by
considerations outside of his permanent appointment.
2. ID.; ID.; CIVIL SERVICE COMMISSION; CONTROVERSY IN THIS CASE WOULD BE MINIMIZED IF THE CIVIL SERVICE
COMMISSION ACTS PROMPTLY UPON THE PROTEST. The chances of the occurrence of the previously described situation
would be minimized if the CSC promptly acts upon the protest. After giving the department or agency to which the protest is
preferred a reasonable deadline to act, its inaction may be a basis for the CSC to give positive relief. It is worthy of note that
the CSC has recognized the importance of the speedy disposition of cases in its resolution No. 89-779, which provided for the
Rules on Protest Cases requiring the disposition of cases within 60 days from filing thereof.
3. ID.; ID.; APPOINTMENTS; DESPITE WIDE LATITUDE GIVEN TO APPOINTING AUTHORITY, THE APPOINTEE MUST POSSESS
THE MINIMUM QUALIFICATIONS PRESCRIBED BY LAW. The appointing authority should, thus, appoint persons to the
contested positions possessing the aforementioned minimum qualifications so as to be within the ambits of the law. For even
if the appointing authority is given a wide latitude in the exercise of its discretion in personnel actions, the appointee must
first possess the minimum qualifications prescribed by law (Cortez v. The Civil Service Commission, 195 SCRA 216 [1991]).
4. ID.; ID.; ID.; THERE IS ABUSE OF DISCRETION BY THE APPOINTING AUTHORITY IF THE OTHER MINIMUM
REQUIREMENTS IN THE QUALIFICATION STANDARD ARE NOT SATISFIED. The QS established for the contested positions
do not only prescribe the eligibility but also the minimum education and experience required of the position. Even if the
petitioners possess the required civil service eligibility, there would still be abuse of discretion by the appointing authority if
the other qualifications are not satisfied.
5. ID.; ID.; ID.; WHEN NECESSARY, EDUCATION, EXPERIENCE, OR TRAINING MAY BE USED INTERCHANGEABLY TO OFFSET
DEFICIENCIES. It would be appropriate to state at the outset that when necessary, education, experience or training may
be used interchangeably to offset deficiencies (in fact, the CSC issued Memorandum Circular No. 23 series of 1991 expressly
allowing the offsetting of deficiencies except the required eligibility). The necessity exists if the appointees training or
experience is of such a level that the same would more than supplement the deficiency in education considering the demands
of the position in question. The converse holds true if the appointees deficiency is in the required training or experience. The
decision as to when the conditions give rise to a necessity to interchange education with experience and vice-versa rests
upon the sound discretion of the appointing authority. This is not to be viewed as an unbridled license given to the appointing
authority to appoint whomsoever he desires. This is rather a recognition of the fact that the appointing authority is in the
best position to determine the needs of his department or agency and how to satisfy those needs. Moreover, it is precisely
the province of the QS to provide the gauge by which the appointing authority shall exercise his discretion.

6. ID.; ID.; ID.; ID.; THE QUALIFICATION STANDARD (QS), AS DEFINED IN SECTION 20, PD 807, PROVIDES FOR THE
CONSIDERATIONS UPON WHICH THE APPOINTING AUTHORITY DECIDES WHEN THE EDUCATION OR EXPERIENCE MAY
OFFSET EACH OTHER. The QS has been defined in Section 20, PD 807 as expressing the minimum requirements for a
class of position in terms of education, training and experience, civil service eligibility, physical fitness and other qualities
required for successful performance. It is, thus, the QS which provides for the considerations upon which the appointing
authority decides when the levels of education of experience may be sufficient to offset each other.
7. ID.; ID.; CIVIL SERVICE COMMISSION; THE CIVIL SERVICE COMMISSION DOES NOT HAVE THE POWER TO OVERRULE
THE APPOINTING AUTHORITYS DISCRETION EVEN IF IT FINDS THAT THERE ARE OTHER PERSONS MORE QUALIFIED TO
THE CONTESTED POSITION. The appointing authoritys exercise of discretion in the choice of appointees must be
respected even if there are other persons who are likewise qualified for the position such as private respondents Cangayda
and Camacho. In fact, the CSC does not have the power to overruled such discretion even if it finds that there are other
persons more qualified to the contested position (underscoring supplied) [De la Cruz v. The Civil Service Commission, G.R.
No. 88333, December 2, 1991; Cortez v. The Civil Service Commission, supra; Gaspar v. Court of Appeals, 190 SCRA 774
[1990]). As has been held in Espanol v. The Civil Service Commission, G.R. No. 85479, March 3, 1992, "every particular job
in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a
certain course, seminars attended and so forth, may be valuable but so are such intangibles as resourcefulness, team spirit,
courtesy, initiative, loyalty, ambition, prospects for the future and best interest of the service. Given the demands of a certain
job, who can do it best should be left to the head of the Office concerned provided the legal requirements for the office are
satisfied."
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8. ID.; ID.; APPOINTMENTS; PERMANENT EMPLOYEES, SEC. 4, R.A. 6656 NOTWITHSTANDING, DO NOT AUTOMATICALLY
GET APPOINTED TO NEW POSITIONS. "SECTION 4. Officers and employees holding permanent appointments shall be
given preference for appointment to the new positions in the approved staffing pattern comparable to their former positions
or in case there are not enough comparable positions, to positions next lower in rank. . . ." In Medenilla v. The Civil Service
Commission, 194 SCRA 278 [1991], this Court stated the rationale for the preference given to permanent employees in the
following manner: ". . . The preference given to permanent employees assumes that employees working in a Department for
longer periods have gained not only superior skills but also greater dedication to the public service. . . ." The Court, then,
continued by making the following observations: . . . that the presumption is not always true and the law does not preclude
the infusion of new blood, younger dynamism or necessary talents into the government service. "If, after considering all the
current employees, the Department Secretary cannot find among them the person he needs to revive a moribund office or to
upgrade second rate performance, there is nothing in the Civil Service Law to prevent him from reaching out to other
Departments or to the private sector provided all his acts are bona fide and for the best interest of the public service and the
person chosen has the needed qualifications." It is, thus, clear from the foregoing that employees or officers holding
permanent appointments do not automatically get appointed to the new positions. The appointing authority is still given
latitude in making his choice considering the duty resting on his discretion to see to it that the best interest of the public is
served with each appointment he makes. More so in cases of reorganization of offices, where in making the new
appointments, the appointing authority has also to take into consideration the purposes and objectives of the reorganization.
In the present case, the reorganization was undertaken to promote economy, efficiency and effectiveness in the delivery of
public services. The appointing authority should be given sufficient discretion to be able to ensure that the purposes and
objectives are met.

DECISION

GUTIERREZ, JR., J.:

These two consolidated petitions assail the resolutions of the Civil Service Commission (CSC) revoking the appointment of
herein petitioners on the ground that they lacked the necessary civil service eligibility at the time of the issuance of their
appointments.
The same series of events gave rise to the controversy in these two petitions.

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Executive Order No. 285 issued on July 25, 1987 abolished the General Services Administration (GSA) including all offices
and agencies under it. The General Printing Office (GPO) which was under the GSA was merged with the relevant printing
units of the Philippine Information Agency (PIA) and out of the merger arose the National Printing Office (NPO) which was
placed under the control and supervision of the Office of the Press Secretary (OPS). A new plantilla of personnel for the NPO
was prepared and approved and the affected officers and employees continued to perform their respective duties and
responsibilities in a hold-over capacity pending the implementation of the reorganization.
The petitioner in G.R. No. 99336, Melanio Torio, was the Chief of the Production Staff of the Printing Division, PIA, while the
petitioner in G.R. No. 100178, Jaime Espanola, was a Bindery Foreman at the PIA. They continued discharging their functions
in a hold-over capacity after the PIA was merged with the GSA. On March 1, 1988, in accordance with the new staffing
pattern of the NPO, petitioner Torio was temporarily appointed as Assistant Operations Superintendent of Printing while
petitioner Espanola was appointed as Temporary Supervising Bookbinder. Both appointments lapsed on February 28, 1989.

So on March 1, 1989, petitioner Torio was extended a renewal appointment which was likewise in a temporary capacity while
petitioner Espanola was issued another appointment was Supervising Bookbinder with permanent status. On the same date,
Espanola was granted a testimonial eligibility.
On July 1, 1989, the positions of both petitioners were upgraded the Assistant Operations Superintendent of Printing was
changed to Assistant Superintendent of Printing and the Supervising Bookbinder to Bookbinder IV. This time, another
appointment was issued to Torio for the upgraded position together with his change of status from temporary to permanent.
Espanola, on the other hand, was given only a notice of the upgrading of his position inasmuch as he was already holding it
in permanent capacity.
Prior to the appointments of the petitioners to the permanent items, protests were lodged with the CSC. The protestants
were Efren Camacho and Letty Cangayda, the private respondents in G.R. No. 99336 and G.R. No. 100178, respectively. The
CSC referred Camachos protest to the NPO while Cangaydas protest was referred to the Reorganization Appeals Board of
the OPS. The offices concerned did not take any action on the referrals by the CSC so the latter was constrained to resolve
the protests based on the available documents or papers before it.
On January 7, 1991, the CSC issued a resolution in CSC Case No. 796 revoking the appointment of Torio and ordering those
qualified, including Camacho, to be evaluated for the position. Subsequently, on February 5, 1991, the CSC rendered another
resolution in CSC Case No. 832 cancelling Espanolas appointment and ordering the reappointment of Cangayda to the
position. The motions for reconsideration filed separately by the present petitioners were denied for lack of merit. Hence, the
present recourse to this Court.
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As was stated earlier, the two petitions herein were consolidated in a resolution of this Court on September 3, 1991. A
temporary restraining order, as prayed for by the petitioners, was issued pursuant to the Courts resolution dated October 10,
1991.
On the basis of the pleadings before us, we give due course to the petitions and decide them on their respective merits.
The two petitions raise the following assignments of errors:.
G.R. No. 99336.
I
"THE RESPONDENT CIVIL SERVICE COMMISSION DID NOT CAREFULLY REVIEW THE RECORDS OF THE CASE IN RESOLVING
THE PETITIONERS MOTION FOR RECONSIDERATION.
II
"THE RESPONDENT CIVIL SERVICE COMMISSION WAS UTTERLY WRONG IN RULING THAT AT THE TIME OF THE ISSUANCE
OF HIS APPOINTMENT IN QUESTION, PETITIONER TORIO WAS NOT QUALIFIED FOR ALLEGED LACK OF ELIGIBILITY AND
THE REQUIRED EXPERIENCE THEREFOR.
III
"THE RESPONDENT CIVIL SERVICE COMMISSION WAS UTTERLY WRONG IN RULING THAT `IN THE PRESENCE OF QUALIFIED
EMPLOYEES IN THE AGENCY, THE PROPOSED PLACEMENT OR APPOINTMENT OF ONE WHO IS NOT QUALIFIED (NOT
ELIGIBLE) IS NOT IN ORDER FOR THE REASON THAT AT THE TIME THE APPOINTMENT IN QUESTION WAS ISSUED, OTHER
CONTENDERS WITH `PERMANENT APPOINTMENTS LIKE PROTESTANT SANTIAGO WERE NEVER CONSIDERED." (Rollo, G.R.
No. 99336, p. 93).
G.R. No. 100178
I
"THAT IF THE AFORECITED RESOLUTIONS OF THE RESPONDENT CIVIL SERVICE COMMISSION ARE ENFORCED, PETITIONER,
A PERMANENT CAREER CIVIL SERVICE EMPLOYEE WILL BE DISMISSED OR REMOVED FROM THE SERVICE WITHOUT DUE
PROCESS OF LAW AND WITHOUT JUST AND VALID CAUSE.
II
"THAT THE RESOLUTIONS ARE NOT SUPPORTED BY THE EVIDENCE ON RECORD.

III
"THAT ERRORS OF LAW OR IRREGULARITIES HAVE BEEN COMMITTED WHICH ARE PREJUDICIAL TO THE INTEREST OF THE
PETITIONER." (Rollo, G.R. No. 99336, p. 93).
Petitioner Torio alleges that at the time of his appointment, he was already a civil service eligible having passed the career
service professional examination held on July 26, 1987 and the results of which were released on January 13, 1988. He
further contends that Camachos protest has become moot and academic inasmuch as the temporary appointment against
which the protest was directed has already expired. Consequently, the Commissioner has no authority to withdraw its
previous approval which has lapsed. Torio likewise stresses the fact that he has security of tenure as provided under the
Constitution such that his removal must only be for cause and after due process.
Private respondent Camacho, on the other hand, avers that the Commission has the power to review appointments for the
correction of mistakes in the approval or disapproval thereof. Moreover, at the time of Torios appointment, there were other
qualified eligibles who were not given the chance to be considered for the contested position through no fault of their own.
Thus, the Commission did not exceed its authority when in the exercise of its power of review, it revoked the appointment of
petitioner.
The Solicitor General filed an adverse Comment stating that the CSC committed grave abuse of discretion in revoking the
permanent appointment of petitioner Torio who was found to possess all the qualifications required of the position. It added
that an appointment is essentially within the discretionary power of the appointing authority, subject to the only condition
that the appointee should possess the qualifications required by law.
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Petitioner Espanola, for his part, contends that he possesses the qualifications for the position of Supervising Bookbinder
(now Bookbinder IV). He is a Supervising Bookbinder Eligible; he has more than ten years of service very relevant to the
duties and functions of Supervising Bookbinder; he is not facing any administrative charge; and he possesses the minimum
educational qualifications to the position for all of which his appointment has been approved by the CSC. He further contends
that inasmuch as his appointment has already been approved by the CSC, it cannot be withdrawn, recalled or cancelled. he
takes the same stand as petitioner Torio with respect to the protest being moot and academic as well as his security of
tenure under the Constitution.
Private respondent Cangayda, on the other hand, claims that the appointment of petitioner Espanola is a flagrant violation of
Republic Act 6656 entitled "An Act to Protect the Security of Tenure of Government Officers and Employees in the
Implementation of Government Reorganization." She was a Supervising Bookbinder under a permanent status prior to the
reorganization and she should, thus, thereafter, be appointed to the same item in the same capacity pursuant to the
provisions of the aforementioned Act. She contends that her protest is primarily directed against her demotion and nonreappointment to the position of Supervising Bookbinder as well as the consequential appointment of petitioner in her stead
and not petitioners temporary appointment. Thus, petitioner Espanolas argument that his temporary appointment as
Supervising Bookbinder cannot be the subject of an appeal since the same has already expired is off-tangent. More
importantly, Espanola is not qualified for appointment to the contested position since at the time of his appointment, he was
not a civil service eligible and there was a civil service eligible actually available and ready to accept the appointment in the
person of private respondent Cangayda. And since the appointee is not qualified, the CSC, being the central personnel
agency of the government, can look into the legality of an appointment and consequently order its revocation and
cancellation.
The Solicitor General, in his comment for the public respondent, added that the subsequent acquisition of eligibility by the
petitioner is of no moment inasmuch as the reckoning point should be the time of appointment and not any time before or
after.
The CSC, in revoking the appointments of herein petitioners based its resolutions primarily on the fact that the petitioners did
not possess the civil service eligibility called for by their respective positions. The CSC ruled further, that their subsequent
acquisition of eligibility will not validate the otherwise invalid appointments inasmuch as the material date is the date of
appointment.
We first rule on the nature of the petitioners appointments.
The foregoing pronouncements of the CSC hold true only insofar as the temporary appointment of petitioner Espanola is
concerned. However, it must be noted that under Section 25 Presidential Decree 807 otherwise known as the Civil Service
Decree of the Philippines, an appointee with a temporary status need not possess the civil service eligibility required by the
position provided he meets the following qualifications: (1) it is necessary in the public interest to fill a vacancy; (2) there are
no appropriate eligibles; (3) the temporary appointment shall not exceed twelve months; and (4) he may be replaced sooner
if a qualified civil service eligible becomes available.
Still, at the time of the temporary appointment of petitioner Espanola, a civil service eligible who was willing to accept the
position was available in the person of private respondent Cangayda. Apparently, there was disregarded of the mandate of
the law when Espanolas temporary appointment was issued. Nevertheless, the petitioner has correctly pointed out that the
protest lodged by private respondent Cangayda had become moot and academic inasmuch as petitioner Espanolas
temporary appointment had already lapsed on February 28, 1989. It is erroneous for the CSC to treat Cangaydas protest as

a continuing one. The same holds true for the protest lodged by Camacho.
A permanent appointment is not a continuation of the temporary appointment these are two distinct acts of the appointing
authority. The fact that the appointees in the two appointments are one and the same person is purely incidental. Any
irregularities in the former appointment are not to be automatically carried over to the latter. If the protest is directed against
the temporary appointment, it would be illogical to carry-over the merits of the protest to the subsequent permanent
appointment.
chanroble s virtualawlibrary chanrobles.com:chanrobles.com.ph

The preceding ruling should not be construed to mean, however, that by the mere expedient of appointing the temporary
appointee to a permanent status, the appointing authority can deprive the protestant of an opportunity to question the
appointment. First, the protestant is not precluded from filing another protest directed against the permanent appointment.
Second, if it can be shown that the appointment was purposely done to moot the protest or is characterized by malice, then
corrective action can be taken and, moreover, the erring officials can be proceeded against administratively.
It must be emphasized that if a protest filed against a temporary appointment is carried over to the subsequent permanent
appointment to the same position of the same person, an anomalous situation will arise wherein the permanent appointees
security to his position would be jeopardized by considerations outside of his permanent appointment.
The chances of the occurrence of the previously described situation would be minimized if the CSC promptly acts upon the
protest. After giving the department or agency to which the protest is preferred a reasonable deadline to act, its inaction may
be a basis for the CSC to give positive relief. It is worthy of note that the CSC has recognized the importance of the speedy
disposition of cases in its resolution No. 89-779, which provided for the Rules on Protest Cases requiring the disposition of
cases within 60 days from filing thereof.
The situation in the present petitions could have been prevented if the CSC did not wait for two years before taking the
appropriate action on the protests filed.
Prescinding from the foregoing discussions, it is established that the questioned resolutions of the CSC should be declared
inapplicable to the petitioners because they refer to the temporary appointments which had already lapsed when they were
issued.
At any rate, this Court deems it best to make a ruling on the validity of the permanent appointments inasmuch as the same
has already been put in issue in the present petitions. Moreover, if the present petitions be granted without prejudice to the
private respondents right to file a protest against the permanent appointments of the petitioners, then that would unduly
prolong the resolution of who should rightfully be appointed to the contested positions to the prejudice of the public service.
THE PERMANENT APPOINTMENTS OF PETITIONERS ESPANOLA AND TORIO
The Qualification Standard (QS) for the position of Bookbinder IV provides the following minimum requirements:

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EDUCATION : Completion of Secondary School Course

EXPERIENCE : Two years of experience in bindery work
ELIGIBILITY : Bookbinder
Supervising Bookbinder
As to the QS for the position of Assistant Superintendent of Printing, the following minimum-requirements are prescribed:

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EDUCATION: Bachelors degree preferably in Commerce or Business Administration

EXPERIENCE: 4 years of progressive responsible experience in the different technical activities of printing operations or other
related work
ELIGIBILITY: Career service Sub-professional
The appointing authority should, thus, appoint persons to the contested positions possessing the aforementioned minimum
qualifications so as to be within the ambits of the law. For even if the appointing authority is given a wide latitude in the
exercise of its discretion in personnel actions, the appointee must first possess the minimum qualifications prescribed by law
(Cortez v. The Civil Service Commission, 195 SCRA 216 [1991]).
At the time petitioner Espanola was issued a permanent appointment, he was also granted testimonial eligibility such that he
is to be considered as possessing the requisite civil service eligibility for his position. The same holds true with petitioner
Torio. At the time of his permanent appointment, he was already a career service professional, having passed the civil service
examination held on July 26, 1987 and the results of which were released on January 13, 1988. In fact, even at the time of
Torios temporary appointment on March 1, 1988, he already possessed the civil service eligibility called for by the position.
The QS established for the contested positions do not only prescribe the eligibility but also the minimum education and

experience required of the position. Even if the petitioners possess the required civil service eligibility, there would still be
abuse of discretion by the appointing authority if the other qualifications are not satisfied.
Based on the QS listed above, the records show that both petitioners possess qualifications required of the contested
positions.
Private respondent Cangayda, however, questions petitioner Espanolas non-completion of a secondary course as prescribed
by the QS.
It would be appropriate to state at the outset that when necessary, education, experience or training may be used
interchangeably to offset deficiencies (in fact, the CSC issued Memorandum Circular No. 23 series of 1991 expressly allowing
the offsetting of deficiencies except the required eligibility). The necessity exists if the appointees training or experience is of
such a level that the same would more than supplement the deficiency in education considering the demands of the position
in question. The converse holds true if the appointees deficiency is in the required training or experience. The decision as to
when the conditions give rise to a necessity to interchange education with experience and vice-versa rests upon the sound
discretion of the appointing authority. This is not to be viewed as an unbridled license given to the appointing authority to
appoint whomsoever he desires. This is rather a recognition of the fact that the appointing authority is in the best position to
determine the needs of his department or agency and how to satisfy those needs. Moreover, it is precisely the province of the
QS to provide the gauge by which the appointing authority shall exercise his discretion. The QS has been defined in Section
20, PD 807 as expressing the minimum requirements for a class of position in terms of education, training and experience,
civil service eligibility, physical fitness and other qualities required for successful performance. It is, thus, the QS which
provides for the considerations upon which the appointing authority decides when the levels of education of experience may
be sufficient to offset each other.
With respect to petitioner Espanolas case, the necessity to offset the deficiency in education with his training is very
apparent from his work-experience. It must be stressed that the contested position belongs to the trades and crafts group
wherein the emphasis is necessarily on the skill required by the work. There can be no doubt that fitness for the job is
developed through years of actual work. Petitioner Espanolas service record (Annex "D") shows that from 1973 until his
permanent appointment in 1989, he had continuously engaged in bindery work. It must likewise be pointed out that he was
extended a testimonial eligibility which is a confirmation by the appointing authority of his capacity to perform the type of
work which his position requires. Worthy of note is the fact that at the time of the grant of testimonial eligibility, the QS was
already being enforced such that the appointing authority is presumed to have taken into consideration the standards
prescribed by the QS. There is, thus, no escaping the conclusion that Jaime Espanola is qualified to handle the demands of
the contested position.
However, this Court does not rule on the validity of the grant of testimonial eligibility. The issue is not before us. Private
respondent Cangayda stated in her brief that an action to question the validity of such grant shall be filed in due time. The
pronouncements of this Court, then, as to the validity of the appointment of petitioner Espanola are without prejudice to the
said action.
With respect to petitioner Torio, on the other hand, the records show that he fully qualifies for the position to which he was
appointed. The Solicitor General, in his adverse comment, aptly summarized the petitioners qualifications in the following
manner:
jgc:chanroble s.com.ph

"EDUCATION 1981 to 1983 "MBA" Candidate for

Graduation, Ateneo de Manila;
1965 to 1969 "A.B. Political Science",
University of the Philippines;
1960 to 1965 "Valedictorian, High
School", Luna Colleges; and
1955 to 1960 "1st Honorable Mention,
Elementary" Grade Graduate
ELIGIBILITY Career Service Professional
(81.48%) July 26, 1987.
(B) With the Government
(B-1) Sept. 1986 to Dec. 1986 Acting Chief, Printing
Division & Ex. Asst. for Technical Services, PIA;

(B-2) Jan. 1987 to Feb. 1988 Chief, Production Staff &

Chief Printing Div., PIA;
(B-3) Mar. 1, 1988 to Present Assistant Printing Operations
Supt. (now Asst. Supt. of Printing, NPO).
"Petitioner likewise participated, upon recommendation of his department head as duly authorized by the Executive
Secretary, in the UNIDO Training Programme in the Field of Printing Industry held in Karl Marx Stadt/Dresden/Leipzig, GDR
from September 30 to October 13, 1990 (Annexes "E", "E-1" to "E-5).
"On November 24 to December 5, 1986 petitioner attended and actively participated in the Evaluation Workshop on
Audiovisual Materials for the Book Publishing Course conducted by the UP Institute of Mass Communication in cooperation
with UNESCO (Paris) (Annex "L-1"). Later, particularly on May 28 to June 6, 1987, petitioner completed a Seminar Workshop
for Quality Printing through Better Supervision of Printing Shop, conducted by the Printing Industry Board Foundation (Annex
"L-2"). Then again on November 12 to 14, 1987 petitioner participated in the Seminar on Promotion of PIAs Programs
conducted by the Philippine Information Agency (Annex "L-3"). Still persistent with the quest for better knowledge, petitioner
again attended the Seminar/Workshop on The Business of Book Publishing-Managing for Profit and Economic Choices"
conducted by Peter H. Neumann on November 24 to 27, 1987 sponsored by the United States Information Service and the
Book Development Association of the Philippines (Annex "L-4")." (Rollo, G.R. No. 99336, p. 93-95).
Although petitioner Torio majored in Political Science and not in Commerce or Business Administration, the QS provided that
the latter two are mere preferences. As to private respondents claim that Torio had only one year, six months and eight days
of experience in printing operations at the time of his appointment (it must be noted, however, that the private respondent
was referring to Torios government service at the time of his temporary appointment since at the time of permanent
appointment, Torio had over two years of government service), the QS provided that the experience may be on other related
work. The appointing power may have found Torios previous work experiences sufficient to tack to the number of years of
experience in actual printing operations coupled with the numerous seminars and trainings he had attended. There is thus,
no evident violation of the QS.
From the foregoing, it is established that petitioners Espanola and Torio are qualified for the positions to which they were
appointed. The appointing authoritys exercise of discretion in the choice of appointees must be respected even if there are
other persons who are likewise qualified for the position such as private respondents Cangayda and Camacho. In fact, the
CSC does not have the power to overruled such discretion even if it finds that there are other persons more qualified to the
contested position (underscoring supplied) [De la Cruz v. The Civil Service Commission, G.R. No. 88333, December 2, 1991;
Cortez v. The Civil Service Commission, supra; Gaspar v. Court of Appeals, 190 SCRA 774 [1990]).
As has been held in Espanol v. The Civil Service Commission, G.R. No. 85479, March 3, 1992, "every particular job in an
office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a
certain course, seminars attended and so forth, may be valuable but so are such intangibles as resourcefulness, team spirit,
courtesy, initiative, loyalty, ambition, prospects for the future and best interest of the service. Given the demands of a certain
job, who can do it best should be left to the head of the Office concerned provided the legal requirements for the office are
satisfied."
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This Court does not overlook the fact that prior to the reorganization of the GSA, the petitioners were holding contractual or
casual employment. This circumstance is of utmost importance considering the provision of Section 4, Republic Act. 6656:

jgc:chanroble s.com.ph

"SECTION 4. Officers and employees holding permanent appointments shall be given preference for appointment to the new
positions in the approved staffing pattern comparable to their former positions or in case there are not enough comparable
positions, to positions next lower in rank. . . ."
cralaw virtua1aw library

In Medenilla v. The Civil Service Commission, 194 SCRA 278 [1991], this Court stated the rationale for the preference given
to permanent employees in the following manner:
jgc:chanroble s.com.ph

". . . The preference given to permanent employees assumes that employees working in a Department for longer periods
have gained not only superior skills but also greater dedication to the public service. . . ."
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The Court, then, continued by making the following observations:

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. . . that the presumption is not always true and the law does not preclude the infusion of new blood, younger dynamism or
necessary talents into the government service. "If, after considering all the current employees, the Department Secretary
cannot find among them the person he needs to revive a moribund office or to upgrade second rate performance, there is
nothing in the Civil Service Law to prevent him from reaching out to other Departments or to the private sector provided all
his acts are bona fide and for the best interest of the public service and the person chosen has the needed qualifications."

cralaw virtua1aw library

It is, thus, clear from the foregoing that employees or officers holding permanent appointments do not automatically get
appointed to the new positions. The appointing authority is still given latitude in making his choice considering the duty

resting on his discretion to see to it that the best interest of the public is served with each appointment he makes. More so in
cases of reorganization of offices, where in making the new appointments, the appointing authority has also to take into
consideration the purposes and objectives of the reorganization. In the present case, the reorganization was undertaken to
promote economy, efficiency and effectiveness in the delivery of public services. The appointing authority should be given
sufficient discretion to be able to ensure that the purposes and objectives are met. It is in this light that the appointments of
petitioners Espanola and Torio should be viewed.
Petitioners Espanola and Torio were validly appointed to the questioned positions. Only the corollary issue of whether or not
private respondent Cangaydas security of tenure was violated by the appointment of petitioner Espanola remains to be
settled.
In Mendoza v. Quisumbing, 186 SCRA 108 [1990], the ruling in favor of the dismissed personnel was made in the light of the
finding that the reorganization undertaken was not in good faith. The Court even reiterated the principles in De La Llana v.
Alba, 112 SCRA 294 [1982] and Cruz v. Primicias, 23 SCRA 998 [1968] that the abolition of an office within the competence
of a legitimate body if done in good faith suffers from no infirmity and a valid abolition of office is neither removal nor
separation of the incumbents.
The same principles were enunciated earlier in Dario v. Mison, 176 SCRA 84 [1989] where the Court made the following
declarations:
jgc:chanroble s.com.ph

". . . Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general
rule, a reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient.
In that event, no dismissal (in case of 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. . . ." (Emphasis supplied)
It is worthy to re-state that the present petitions arose due to the abolition of the GSA and its merger with the relevant
printing units of the PIA giving rise to the NPO. There is no showing that the reorganization was undertaken for any reason
other than its purpose of promoting economy, efficiency and effectiveness in the delivery of public service. In fact, the private
respondents did not put in issue the validity of the reorganization of the offices. They questioned only their non-appointment
to the contested positions. We are constrained to assume that there was in the present case, a bona fide reorganization.
Hence, private respondent Cangayda cannot successfully impugn her alleged removal as illegal for under the facts of the
case, she was not dismissed; rather, her former position was abolished. More important, this Court has ruled in Siete v.
Santos, 190 SCRA 50 [1990] that Section 16, Article VIII of the 1987 Constitution explicitly authorizes the dismissal of career
civil service employees not for cause but as a result of the reorganization following the ratification of said Constitution.
As to the alleged violation of Republic Act 6656, it must be emphasized that the question has to be resolved in the light of
the prevailing bona fide rule in reorganization of the public offices. The foregoing principle has been applied in Floreza v.
Ongpin, 182 SCRA 692 [1990] where the Court ruled that:
jgc:chanroble s.com.ph

". . . Section 2 of Republic Act 6656 entitles a victim of a removal in violation of the bona fide rule to a reinstatement or
reappointment to the position from which he was removed" (Emphasis supplied).
There is nothing in this decision which precludes the more appropriate recourse of private respondent Cangayda to appeal to
the better judgment of the Department Head to consider her for other vacant positions more commensurate to her
qualifications.
WHEREFORE, premises considered, the Court hereby GRANTS the petitions in G.R. No. 99336 and G.R. No. 100178. The
assailed resolutions of the Civil Service Commission in CSC Case No. 796 and CSC case No. 832 are set aside. The
permanent appointments of petitioners Melanio S. Torio and Jaime Espanola are declared valid. The temporary restraining
order issued pursuant to the Courts resolution dated October 10, 1991 is made permanent.
SO ORDERED.

EN BANC
[G.R. No. 152295. July 9, 2002.]
ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO, JOSEPHINE ATANGAN, RONALD ATANGAN and CLARIZA
DECENA, and OTHER YOUTH OF THE LAND SIMILARLY SITUATED,Petitioners, v. COMMISSION ON ELECTIONS,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, DEPARTMENT OF BUDGET AND MANAGEMENT,
EXECUTIVE SECRETARY of the OFFICE OF THE PRESIDENT, SENATOR FRANKLIN DRILON in his capacity as
Senate President and SENATOR AQUILINO PIMENTEL in his capacity as Minority Leader of the Senate of the
Philippines, CONGRESSMAN JOSE DE VENECIA in his capacity as Speaker, CONGRESSMAN AGUSTO L. SYJOCO in
his capacity as Chairman of the Committee on Suffrage and Electoral Reforms, and CONGRESSMAN EMILIO C.
MACIAS II in his capacity as Chairman of the Committee on Local Government of the House of Representatives,
THE PRESIDENT OF THE PAMBANSANG KATIPUNAN NG MGA SANGGUNIANG KABATAAN, AND ALL THEIR AGENTS
AND REPRESENTATIVES, Respondents.
DECISION

CARPIO, J.:

The Case
Before us is a petition for certiorari, prohibition and mandamus with prayer for a temporary restraining order or preliminary
injunction. The petition seeks to prevent the postponement of the Sangguniang Kabataan ("SK" for brevity) elections
originally scheduled last May 6, 2002. The petition also seeks to prevent the reduction of the age requirement for
membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a taxpayers and class suit, on their own behalf and on behalf of
other youths similarly situated. Petitioners claim that they are in danger of being disqualified to vote and be voted for in the
SK elections should the SK elections on May 6, 2002 be postponed to a later date. Under the Local Government Code of 1991
(R.A. No. 7160), membership in the SK is limited to youths at least 15 but not more than 21 years old.
Petitioners allege that public respondents "connived, confederated and conspired" to postpone the May 6, 2002 SK elections
and to lower the membership age in the SK to at least 15 but less than 18 years of age. Petitioners assail the alleged
conspiracy because youths at least 18 but not more than 21 years old will be "summarily and unduly dismembered, unfairly
discriminated, unnecessarily disenfranchised, unjustly disassociated and obnoxiously disqualified from the SK organization."
1
Thus, petitioners pray for the issuance of a temporary restraining order or preliminary injunction
"a) To prevent, annul or declare unconstitutional any law, decree, Comelec resolution/directive and other respondents
issuances, orders and actions and the like in postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6, 2002 SK elections set by the present law and in accordance with
Comelec Resolutions No. 4713 and 4714 and to expedite the funding of the SK elections.
c) In the alternative, if the SK elections will be postponed for whatever reason, there must be a definite date for said
elections, for example, July 15, 2002, and the present SK membership, except those incumbent SK officers who were elected
on May 6, 1996, shall be allowed to run for any SK elective position even if they are more than 21 years old.
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d) To direct the incumbent SK officers who are presently representing the SK in every sanggunian and the NYC to vacate
their post after the barangay elections." 2
The Facts
The SK is a youth organization originally established by Presidential Decree No. 684 as the Kabataang Barangay ("KB" for
brevity). The KB was composed of all barangay residents who were less than 18 years old, without specifying the minimum
age. The KB was organized to provide its members with the opportunity to express their views and opinions on issues of

transcendental importance. 3
The Local Government Code of 1991 renamed the KB to SK and limited SK membership to those youths "at least 15 but not
more than 21 years of age." 4 The SK remains as a youth organization in every barangay tasked to initiate programs "to
enhance the social, political, economic, cultural, intellectual, moral, spiritual, and physical development of the youth." 5 The
SK in every barangay is composed of a chairperson and seven members, all elected by the Katipunan ng Kabataan. The
Katipunan ng Kabataan in every barangay is composed of all citizens actually residing in the barangay for at least six months
and who meet the membership age requirement.
The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK elections to the first Monday of May of
1996 and every three years thereafter. RA No. 7808 mandated the Comelec to supervise the conduct of the SK elections
under rules the Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001 issued Resolution Nos. 4713 6 and
4714 7 to govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros ("Montesclaros" for brevity) sent a letter 8 to the Comelec,
demanding that the SK elections be held as scheduled on May 6, 2002. Montesclaros also urged the Comelec to respond to
her letter within 10 days upon receipt of the letter, otherwise, she will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo ("Chairman Benipayo" for brevity), then Comelec Chairman, wrote identical
letters to the Speaker of the House 9 and the Senate President 10 about the status of pending bills on the SK and Barangay
elections. In his letters, the Comelec Chairman intimated that it was "operationally very difficult" to hold both elections
simultaneously in May 2002. Instead, the Comelec Chairman expressed support for the bill of Senator Franklin Drilon that
proposed to hold the Barangay elections in May 2002 and postpone the SK elections to November 2002.
Ten days lapsed without the Comelec responding to the letter of Montesclaros. Subsequently, petitioners received a copy of
Comelec En Banc Resolution No. 4763 11 dated February 5, 2002 recommending to Congress the postponement of the SK
elections to November 2002 but holding the Barangay elections in May 2002 as scheduled. 12
On March 6, 2002, the Senate and the House of Representatives passed their respective bills postponing the SK elections. On
March 11, 2002, the Bicameral Conference Committee ("Bicameral Committee" for brevity) of the Senate and the House
came out with a Report 13 recommending approval of the reconciled bill consolidating Senate Bill No. 2050 14 and House Bill
No. 4456. 15 The Bicameral Committees consolidated bill reset the SK and Barangay elections to July 15, 2002 and lowered
the membership age in the SK to at least 15 but not more than 18 years of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral Committees consolidated bill and on March 13, 2002, the House of
Representatives approved the same. The President signed the approved bill into law on March 19, 2002.
The Issues
Petitioners 16 raise the following grounds in support of their petition:

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"I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY INTENDED TO POSTPONE THE SK
ELECTIONS.
II.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE,
DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK MEMBERS WHO ARE 18 BUT NOT LESS 17 (SIC) THAN 21 YEARS
OLD COMPOSED OF ABOUT 7 MILLION YOUTH.
III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND THE
SK ELECTION PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO IMPLEMENT THEIR ILLEGAL SCHEME AND
MACHINATION IN SPITE OF THE FACT THAT THERE ARE AVAILABLE FUNDS FOR THE PURPOSE.
IV.

THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON THEIR RESPECTIVE OFFICES CONTRARY TO THE
ENVISION (SIC) OF THE CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION OF LAW AND CONSTITUTION." 18
The Courts Ruling
The petition is bereft of merit.
At the outset, the Court takes judicial notice of the following events that have transpired since petitioners filed this petition:

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1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were not held as scheduled.
2. Congress enacted RA No. 9164 19 which provides that voters and candidates for the SK elections must be "at least 15 but
less than 18 years of age on the day of the election." 20 RA No. 9164 also provides that there shall be a synchronized SK and
Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules and regulations for the conduct of the July 15, 2002
synchronized SK and Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the postponement of the May 6, 2002 SK elections disenfranchises
them, preventing them from voting and being voted for in the SK elections. Petitioners theory is that if the SK elections were
postponed to a date later than May 6, 2002, the postponement would disqualify from SK membership youths who will turn 21
years old between May 6, 2002 and the date of the new SK elections. Petitioners claim that a reduction in the SK
membership age to 15 but less than 18 years of age from the then membership age of 15 but not more than 21 years of age
would disqualify about seven million youths. The public respondents failure to hold the elections on May 6, 2002 would
prejudice petitioners and other youths similarly situated.
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Thus, petitioners instituted this petition to: (1) compel public respondents to hold the SK elections on May 6, 2002 and
should it be postponed, the SK elections should be held not later than July 15, 2002; (2) prevent public respondents from
passing laws and issuing resolutions and orders that would lower the membership age in the SK; and (3) compel public
respondents to allow petitioners and those who have turned more than 21 years old on May 6, 2002 to participate in any rescheduled SK elections.
The Courts power of judicial review may be exercised in constitutional cases only if all the following requisites are complied
with, namely: (1) the existence of an actual and appropriate case or controversy; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4)
the constitutional question is the lis mota of the case. 21
In the instant case, there is no actual controversy requiring the exercise of the power of judicial review. While seeking to
prevent a postponement of the May 6, 2002 SK elections, petitioners are nevertheless amenable to a resetting of the SK
elections to any date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July 15, 2002, a date
acceptable to petitioners. With respect to the date of the SK elections, there is therefore no actual controversy requiring
judicial intervention.
Petitioners prayer to prevent Congress from enacting into law a proposed bill lowering the membership age in the SK does
not present an actual justiciable controversy. A proposed bill is not subject to judicial review because it is not a law. A
proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill, having no legal effect,
violates no constitutional right or duty. The Court has no power to declare a proposed bill constitutional or unconstitutional
because that would be in the nature of rendering an advisory opinion on a proposed act of Congress. The power of judicial
review cannot be exercised in vacuo. 22 The second paragraph of Section 1, Article VIII of the Constitution states
"Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government." (Emphasis supplied)
Thus, there can be no justiciable controversy involving the constitutionality of a proposed bill. The Court can exercise its
power of judicial review only after a law is enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from passing any law, or from setting into motion the
legislative mill according to its internal rules. Thus, the following acts of Congress in the exercise of its legislative powers are
not subject to judicial restraint: the filing of bills by members of Congress, the approval of bills by each chamber of Congress,
the reconciliation by the Bicameral Committee of approved bills, and the eventual approval into law of the reconciled bills by
each chamber of Congress. Absent a clear violation of specific constitutional limitations or of constitutional rights of private
parties, the Court cannot exercise its power of judicial review over the internal processes or procedures of Congress. 23
The Court has also no power to dictate to Congress the object or subject of bills that Congress should enact into law. The
judicial power to review the constitutionality of laws does not include the power to prescribe to Congress what laws to enact.

The Court has no power to compel Congress by mandamus to enact a law allowing petitioners, regardless of their age, to
vote and be voted for in the July 15, 2002 SK elections. To do so would destroy the delicate system of checks and balances
finely crafted by the Constitution for the three co-equal, coordinate and independent branches of government.
Under RA No. 9164, Congress merely restored the age requirement in PD No. 684, the original charter of the SK, which fixed
the maximum age for membership in the SK to youths less than 18 years old. Petitioners do not have a vested right to the
permanence of the age requirement under Section 424 of the Local Government Code of 1991. Every law passed by
Congress is, always subject to amendment or repeal by Congress. The Court cannot restrain Congress from amending or
repealing laws, for the power to make laws includes the power to change the laws. 24
The Court cannot also direct the Comelec to allow over-aged voters to vote or be voted for in an election that is limited under
RA No. 9164 to youths at least 15 but less than 18 years old. A law is needed to allow all those who have turned more than
21 years old on or after May 6, 2002 to participate in the July 15, 2002 SK elections. Youths from 18 to 21 years old as of
May 6, 2002 are also no longer SK members, and cannot participate in the July 15, 2002 SK elections. Congress will have to
decide whether to enact an amendatory law. Petitioners remedy is legislation, not judicial intervention.
Petitioners have no personal and substantial interest in maintaining this suit. A party must show that he has been, or is about
to be denied some personal right or privilege to which he is lawfully entitled. 25 A party must also show that he has a real
interest in the suit. By "real interest" is meant a present substantial interest, as distinguished from a mere expectancy or
future, contingent, subordinate, or inconsequential interest. 26
In the instant case, petitioners seek to enforce a right originally conferred by law on those who were at least 15 but not more
than 21 years old. Now, with the passage of RA No. 9164, this right is limited to those who on the date of the SK elections
are at least 15 but less than 18 years old. The new law restricts membership in the SK to this specific age group. Not falling
within this classification, petitioners have ceased to be members of the SK and are no longer qualified to participate in the
July 15, 2002 SK elections. Plainly, petitioners no longer have a personal and substantial interest in the SK elections.
This petition does not raise any constitutional issue. At the time petitioners filed this petition, RA No. 9164, which reset the
SK elections and reduced the age requirement for SK membership, was not yet enacted into law. After the passage of RA No.
9164, petitioners failed to assail any provision in RA No. 9164 that could be unconstitutional. To grant petitioners prayer to
be allowed to vote and be voted for in the July 15, 2002 SK elections necessitates assailing the constitutionality of RA No.
9164. This, petitioners have not done. The Court will not strike down a law unless its constitutionality is properly raised in an
appropriate action and adequately argued. 27
The only semblance of a constitutional issue, albeit erroneous, that petitioners raise is their claim that SK membership is a
"property right within the meaning of the Constitution." 28 Since certain public offices are "reserved" for SK officers,
petitioners also claim a constitutionally protected "opportunity" to occupy these public offices. In petitioners own words, they
and others similarly situated stand to "lose their opportunity to work in the government positions reserved for SK members
or officers." 29 Under the Local Government Code of 1991, the president of the federation of SK organizations in a
municipality, city or province is an ex-officio member of the municipal council, city council or provincial board, respectively.
30 The chairperson of the SK in the barangay is an ex-officio member of the Sangguniang Barangay. 31 The president of the
national federation of SK organizations is an ex-officio member of the National Youth Commission, with rank of a Department
Assistant Secretary. 32
Congress exercises the power to prescribe the qualifications for SK membership. One who is no longer qualified because of
an amendment in the law cannot complain of being deprived of a proprietary right to SK membership. Only those who qualify
as SK members can contest, based on a statutory right, any act disqualifying them from SK membership or from voting in
the SK elections. SK membership is not a property right protected by the Constitution because it is a mere statutory right
conferred by law. Congress may amend at any time the law to change or even withdraw the statutory right.
A public office is not a property right. As the Constitution expressly states, a" [P]ublic office is a public trust." 33 No one has
a vested right to any public office, much less a vested right to an expectancy of holding a public office. In Cornejo v. Gabriel,
34 decided in 1920, the Court already ruled:
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"Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an office a
"property." It is, however, well settled . . . that a public office is not property within the sense of the constitutional guaranties
of due process of law, but is a public trust or agency. . . . The basic idea of the government . . . is that of a popular
representative government, the officers being mere agents and not rulers of the people, one where no one man or set of
men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of
the law and holds the office as a trust for the people he represents." (Emphasis supplied)
Petitioners, who apparently desire to hold public office, should realize from the very start that no one has a proprietary right
to public office. While the law makes an SK officer an ex-officio member of a local government legislative council, the law
does not confer on petitioners a proprietary right or even a proprietary expectancy to sit in local legislative councils. The
constitutional principle of a public office as a public trust precludes any proprietary claim to public office. Even the State
policy directing "equal access to opportunities for public service" 35 cannot bestow on petitioners a proprietary right to SK
membership or a proprietary expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youths involvement in public affairs, 36 this policy refers to those who

belong to the class of people defined as the youth. Congress has the power to define who are the youth qualified to join the
SK, which itself is a creation of Congress. Those who do not qualify because they are past the age group defined as the youth
cannot insist on being part of the youth. In government service, once an employee reaches mandatory retirement age, he
cannot invoke any property right to cling to his office. In the same manner, since petitioners are now past the maximum age
for membership in the SK, they cannot invoke any property right to cling to their SK membership.
The petition must also fail because no grave abuse of discretion attended the postponement of the SK elections. RA No. 9164
is now the law that prescribes the qualifications of candidates and voters for the SK elections. This law also fixes the date of
the SK elections. Petitioners are not even assailing the constitutionality of RA No. 9164. RA No. 9164 enjoys the presumption
of constitutionality and will apply to the July 15, 2002 SK elections.
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Petitioners have not shown that the Comelec acted illegally or with grave abuse of discretion in recommending to Congress
the postponement of the SK elections. The very evidence relied upon by petitioners contradict their allegation of illegality.
The evidence consist of the following: (1) Comelec en banc Resolution No. 4763 dated February 5, 2002 that recommended
the postponement of the SK elections to 2003; (2) the letter of then Comelec Chairman Benipayo addressed to the Speaker
of the House of Representatives and the President of the Senate; and (3) the Conference Committee Report consolidating
Senate Bill No. 2050 and House Bill No. 4456.
The Comelec exercised its power and duty to "enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall" 37 and to "recommend to Congress effective measures to minimize
election spending. 38 The Comelecs acts enjoy the presumption of regularity in the performance of official duties. 39 These
acts cannot constitute proof, as claimed by petitioners, that there "exists a connivance and conspiracy (among) respondents
in contravention of the present law." As the Court held in Pangkat Laguna v. Comelec, 40 the "Comelec, as the government
agency tasked with the enforcement and administration of elections laws, is entitled to the presumption of regularity of
official acts with respect to the elections."
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The 1987 Constitution imposes upon the Comelec the duty of enforcing and administering all laws and regulations relative to
the conduct of elections. Petitioners failed to prove that the Comelec committed grave abuse of discretion in recommending
to Congress the postponement of the May 6, 2002 SK elections. The evidence cited by petitioners even establish that the
Comelec has demonstrated an earnest effort to address the practical problems in holding the SK elections on May 6, 2002.
The presumption remains that the decision of the Comelec to recommend to Congress the postponement of the elections was
made in good faith in the regular course of its official duties.
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 a virtual refusal to perform a duty enjoined by law. 41 Public respondents having acted strictly
pursuant to their constitutional powers and duties, we find no grave abuse of discretion in their assailed acts.
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Petitioners contend that the postponement of the SK elections would allow the incumbent SK officers to perpetuate
themselves in power, depriving other youths of the opportunity to serve in elective SK positions. This argument deserves
scant consideration. While RA No. 9164 contains a hold-over provision, incumbent SK officials can remain in office only until
their successors have been elected or qualified. On July 15, 2002, when the SK elections are held, the hold-over period
expires and all incumbent SK officials automatically cease to hold their SK offices and their ex-officio public offices.
In sum, petitioners have no personal and substantial interest in maintaining this suit. This petition presents no actual
justiciable controversy. Petitioners do not cite any provision of law that is alleged to be unconstitutional. Lastly, we find no
grave abuse of discretion on the part of public respondents.
WHEREFORE, the petition is DISMISSED for utter lack of merit.
SO ORDERED.

EN BANC
[G. R. No. 191002 : March 17, 2010]
ARTURO M. DE CASTRO, PETITIONER, VS. JUDICIAL AND BAR COUNCIL (JBC) AND PRESIDENT GLORIA
MACAPAGAL - ARROYO, RESPONDENTS.
[G.R. No. 191032 ]
JAIME N. SORIANO, PETITIONER, VS. JUDICIAL AND BAR COUNCIL (JBC), RESPONDENT.
[G.R. No. 191057]
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), PETITIONER, VS. JUDICIAL AND BAR COUNCIL (JBC),
RESPONDENT.
[A.M. No. 10-2-5-SC]
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE
JUDICIARY, ESTELITO P. MENDOZA, PETITIONER,
[G.R. No. 191149]
JOHN G. PERALTA, PETITIONER, VS. JUDICIAL AND BAR COUNCIL (JBC). RESPONDENT.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE'S
LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER,
REPRESENTED BY ITS IMMEDIATE PAST PRESIDENT, ATTY. ISRAELITO P. TORREON, AND THE LATTER IN HIS
OWN PERSONAL CAPACITY AS A MEMBER OF THE PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG
ALYANSANG BAYAN (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 SAMBAYANAN 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; WALDEN F. BELLO AND LORETTA ANN P. ROSALES; WOMEN
TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, REPRESENTED BY YOLANDA QUISUMBING- JAVELLANA;
BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN
STA. ROMANA; LEONILA DE JESUS; AND GUINEVERE DE LEON. INTERVENORS.
[G.R. No. 191342]
ATTY. AMADOR Z. TOLENTINO, JR., (IBP GOVERNOR-SOUTHERN LUZON), AND ATTY. ROLAND B. INTING (IBP
GOVERNOR-EASTERN VISAYAS), PETITIONERS, VS. JUDICIAL AND BAR COUNCIL (JBC), RESPONDENT.
[G.R. No. 191420]
PHILIPPINE BAR ASSOCIATION, INC., PETITIONER, VS. JUDICIAL AND BAR COUNCIL AND HER EXCELLENCY
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. 191002 [1] and G.R. No. 191149[2] 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 President's 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 President's 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 JBC's 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 Inquirerand 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 Inquirerand 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 duringordinary 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-in-intervention 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-in-intervention 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.
Intervenors Tan, Ubano, WTLOP, Bello et al., IBP Dacao del Sur, Corvera, and Boiser regard De Castro's argument that a
permanent Chief Justice 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, per Brillantes 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 Codepenalizes 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 inCustodio 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, inAraneta 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, however...the people are the real parties...It 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. Jordan[57] 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 Valenzuela[67] 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
confirmationValenzuela 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 15-member 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 befilled 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 evenValenzuela 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
enforced[71] - 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 nowdeserves 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, inValenzuela, 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
oftemporary 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 wasprecisely 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 everysituation 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 daysand 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, orvice 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 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.
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 90day 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 formandamus 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 ofmandamus 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.
Leonardo-De Castro and Perez, JJ., concur.
Puno, C.J., no part. JBC as respondent.
Carpio, J., no part as Senior associate, I am involved either way.
Corona, J., no part.
Carpio Morales, J., please see dissenting.
Velasco, Jr., J., join the separate opinion of J. Nachura.
Nachura, and Brion, JJ., please see separate opinion.
Peralta, and Mendoza, JJ., in the result, join the opinion of J. Brion.
Del Castillo, J., in the result, shared the view of J. Brion.
Abad, J., please see concurrence.
Villarama, Jr., J., certify that J. Villarama voted in the favor of the Decision of J. Bersamin

EN BANC
[G.R. No. 189479, April 12 : 2011]
JEROME JAPSON, PETITIONER, VS. CIVIL SERVICE COMMISSION, RESPONDENT.
DECISION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision [1] dated June
8, 2009 and the Resolution[2] dated September 9, 2009 of the Court of Appeals (CA) in CA-G.R. SP No. 104865. The CA
affirmed the resolutions of the Civil Service Commission (CSC), finding petitioner Jerome Japson (Japson), former Senior
Member Services Representative assigned at the Social Security System (SSS) office in Baguio City (SSS Baguio City), guilty
of Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service, and imposing on him the
penalty of dismissal.[3]
The antecedent facts, as found by the CSC and adopted by the CA, are as follows:
Records show that Japson became the subject of a series of inquiries conducted by the SSS linking him to a profiting venture
involving the processing of claims for SSS death and funeral benefits while he was assigned at SSS Baguio City from 1997 to
May 1998. The inquiry was spurred by an affidavit dated October 6, 1999 of Mina Balanag, who happened to assist her
illiterate mother, Cat-an Paanos, in claiming, as beneficiary, the SSS death benefits of her deceased father, Kitos Paanos. She
alleged that because she knew nothing of the steps for processing of claims for death benefits, a village mate referred her to
spouses Boyet and Shirley Abuan [(Spouses Abuan)] who have been frequenting their village. The [S]pouses Abuans (sic)
assured that her mother will receive the benefits in due time since Shirley has a relative working at the SSS Baguio City who
also happened to be their neighbor at (sic) Baguio City. Later, she learned that this neighbor-relative turned out (sic) to be
Shirley's cousin Japson.
In exchange for their help, the [S]pouses Abuan demanded a share equivalent to 10% of the SSS death benefits that will be
awarded to Balanag's mother. She reposed her full trust on the Spouses Abuan that even her mother's address in the claim
form reflected that of the Spouses Abuan's home at P-2-36 Gabriela Silang Brgy., Baguio City, although her mother really
lives in Bila, Bokod, Benguet. After the claim was approved, the SSS issued a check in the amount of Php183,472.72. After it
was cashed (sic), the spouses Abuan allegedly received more than what was originally agreed (sic) since aside from the
P[hp]15,000.00 corresponding to their "commission," they demanded Php83,000.00 more, purportedly the asking fee of
Japson and a certain Atty. Reynaldo Rodeza, who were instrumental for the release of the benefits. Reluctantly, they gave the
amount for fear that the benefits awarded them might be withdrawn. An affidavit dated January 26, 2000[ ] was executed by
Balanag's mother, Cat-an Paanos, to corroborate her allegations.
On the other hand, in his affidavit dated January 27, 2000, as well as in his testimony relative thereto, Erano F. Gaspar
(Ireneo in the Transcript of his Testimony taken on June 6, 2000 before the SSS) alleged that he came to know Japson
through Shirley Abuan after she convinced him to transfer his claim for his father's death benefits then pending at SSS
Solano, Nueva Vizcaya, to SSS Baguio City, intimating that Japson, who is her cousin, could guarantee its prompt release
since he was assigned at the claims section there. A meeting with Japson was then arranged by Shirley after which she filed
the claim on October 10, 1997. Sometime on (sic) November 1997, Japson informed Gaspar by telephone that a check in an
amount of Php74,000.00 was already issued to him. On the same day, he went to Baguio City, where, accompanied by
Japson, he retrieved (sic) the check at the Baguio Post Office. After opening an account at PNP (sic) Baguio and withdrawing
a sum, Japson informed him that a machine error in the computation of his benefits resulted in an overpayment as he was
supposed to receive Php54,000.00. Gaspar handed over the excess P[hp]20,000.00, which Japson promised to deliver
personally to SSS Baguio City. In addition, he paid Japson Php2,000.00 for the assistance he (sic) rendered.
In response to the above complaints, the SSS conducted a series of investigation (sic) on the official transactions of Japson

and uncovered details that raised its suspicion. First, the address of claimants to the death benefits of deceased SSS
members Kitos Paanos, Warlito Costales and Adriano Castillo as well as the pension form of SSS retiree Jovita Resquer bore a
common address: P-2-35 Gabriela Silang Brgy., Baguio City[,] which is the address of Japson. They found out, too, that
Japson signed and acknowledged the receipt of checks which were issued to the beneficiaries of Paanos and Castillo. It was
further disclosed that Japson committed lapses in procedure, namely, his failure to stamp "received" on the claim of funeral
benefits of Costales; his having attested to the fact of death of Kitos Paanos even though he has no personal knowledge of
the same and with apparent conflict of interest due to his assignment at the claims section; and the discovery that by (sic) as
late as February 2000, he has yet to mail a check issued by the SSS way back on (sic) December 24, 1999. The investigators
received reports, too, that he took P[hp]17,000.00 from the benefits awarded to one Minda Balucas.
Upon the recommendation of the investigating unit which found prima facie case to support the complaints, the SSS, through
Carlos A. Arellano, then Chairman, President and Chief Executive Officer (CEO), formally charged Japson with Dishonesty,
Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service and placed him under preventive suspension of
ninety (90) days. After the parties submitted their respective pleadings, the formal hearings were held on June 6 and 7, 2000
and November 9, 2000, where Japson testified for his defense.
In his testimony which amplified his Counter-Affidavit/Answer to the Formal Charge, Japson who assisted claimants for
death, disability and retirement claims when he was first assigned to the (sic) SSS Bangued[,] refuted the allegation that he
took a hefty share from death and funeral benefits awarded to beneficiaries of SSS members referred to him by the
[S]pouses Abuan or that he worked in concert with [S]pouses Abuan to profit from the claimants. First, in response to the
allegation of Erano P. Gaspar, he recalled that his cousin, Shirley Abuan, who also happened to be his neighbor, told him that
Gaspar was having difficulty in claiming the SSS benefits of his father when he filed his claim at SSS Solano branch in Nueva
Vizcaya. Assessing that some documents required by [the] SSS Solano Branch are not necessary, he brought the papers
instead to SSS Baguio City in order to speed up the processing of Gaspar's claim. Eventually, a check in the amount of
Php74,000.00 was issued by the SSS after which he accompanied Gaspar to claim the check at the Baguio City Post Office.
After Gaspar cashed (sic) the check, Japson told him matter-of-factly that due to machine error, the SSS overpaid him by
Php20,000.00, producing a copy of the encoding sheet prepared by the Benefits Section which showed the correct
computation. Gaspar gave him the excess amount for him to turn over to the SSS. Afterwards, they retired to Japson's house
at Brgy. Gabriela Silang, Baguio City where they had a few rounds of drinks as it was his cousin's birthday. Gaspar insisted on
giving him Php2,000.00 but he refused, saying that he does not expect any payment for his help more so as they are
brothers of faith as both belong to Iglesia ni Cristo. Instead, Gaspar just spent the sum to buy food for their drinks. As to the
Php20,000.00, Japson produced a (sic) SSS Special bank receipt dated February 16, 2000 as proof of remittance by Gaspar
of the P[hp]20,000.00 excess amount and a Miscellaneous Payment Return Form bearing an identical date to show that
Japson turned over the amount intact to the SSS.
With respect to the allegation that a number of applications for benefits suspiciously bore his address even though the
applicants were not from Baguio City but in (sic) outlying provinces with SSS branches of their own, he explained that the
[S]pouses Abuan, who were authorized by the claimants to file their application[s] and to follow-up their claims, might have
placed the wrong information since they almost have an identical address (sic). He did not notice the error since he was
accustomed to his old address which he wrote as Lower Hillside, Kennon Road, Baguio City. As to the case of Resquer, he
pointed out that their address in the application clearly showed P-2-45 Brgy. Gabriela Silang and not P-2-35 as claimed in the
investigation report. He also denied that he kept the Php17,000.00 from the benefits awarded to Balucas. He insisted that
the sum was only entrusted to him for safekeeping since Balucas was afraid to carry such amount when she traveled to Abra,
showing as proof thereto a letter dated September 15, 1999 by Balucas acknowledging that Japson already returned the
amount to her[,] coupled by a Certification dated September 15, 1999 from Abelardo Yogyog, Branch Head of the Abra
Provincial Post Office, that the check corresponding to the benefits awarded to Balucas was delivered to Balucas by mail at
her address [on] Harrison St., Zone 7, Bangued, Abra. Japson backed up his counter-allegations by producing affidavits both
dated February 14, 2003 executed by Balucas and Resquer clearing him of any wrongdoing and lauding him for the
invaluable assistance rendered them.[4]
A case for Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service was filed against Japson
before the SSS. On February 4, 2003, the SSS promulgated a decision finding Japson guilty on all counts. [5]
The SSS said that while there was nothing wrong per se with petitioner letting claimants use his home address for their
claims, a perception of material gain is nonetheless indubitable. It pointed out that it was highly improbable for claimants
from Isabela and Nueva Vizcaya, where there are also SSS branches, to file their claims in Abra. The most logical conclusion,
the SSS said, is that they made their claims through the Spouses Abuan on the latter's assurance that these would be
processed at the soonest possible time. Petitioner should have been wary of the number of claims brought to him by the
Spouses Abuan, the SSS said, and he should have avoided these claims or referred them to the proper branch offices. [6] The
SSS held that it is not necessary to show concrete proof of receiving consideration therefor, following the principle of res ipsa
loquitur.[7]
Petitioner's motion for reconsideration was denied in an Order dated May 12, 2003. He then appealed to the CSC.
In a resolution dated August 31, 2006, the CSC affirmed the SSS decision. The CSC underscored the link between petitioner
and the Spouses Abuan, who were suspected of being fixers in the SSS and who allegedly ran a venture where they earned
cuts or "commissions" from death, disability, and retirement benefits that were awarded to the SSS beneficiaries. The CSC
found that the common link to the evidence ranged against Japson is the fact that he processed the various claims. The CSC
also found credence in the following pieces of evidence: the statements under oath and testimonies of the principal

complainants; the appearance of petitioner's address in the Death, Disability, and Retirement Forms of claimants; petitioner's
attestation to the fact of death of several members, whose death benefits he himself processed; the fact that the claimants
whom petitioner assisted were not from Baguio City; and the fact that these claimants were referred to him by the Spouses
Abuan.[8]
The CSC held that while there is no strong evidence showing that Japson received, collected, or took a share of the benefits
awarded to the claimants, he was still liable for the charges against him because his irregular conduct and indiscriminate
judgment relative to the handling of the claims caused a serious breach in the integrity of the system observed by the SSS,
as well as his having endangered the welfare of the public at large. [9]
Petitioner filed a motion for reconsideration, which was denied in a resolution dated June 23, 2008. [10]
Petitioner subsequently filed a Petition for Review under Rule 43 of the Rules of Court before the CA. The CA, on June 8,
2009, promulgated a Decision denying the petition and affirming the CSC's August 31, 2006 and June 23, 2008 resolutions.
[11]

The CA ruled that the CSC resolutions were anchored on substantial evidence. [12] The CA held that it is not for the appellate
court to substitute its own judgment for that of the administrative agency on the sufficiency of evidence and the credibility of
witnesses, and its findings may only be set aside on a showing of grave abuse of discretion. The CA also noted that, on the
face of the substantial evidence presented against him, petitioner proffered only denials and presented himself as sole
witness during the administrative proceedings.[13]
Petitioner moved for reconsideration, but the same was denied in a Resolution dated September 9, 2009.
Thus, petitioner filed a Petition for Review on Certiorari before this Court on October 29, 2009. In a Resolution dated June 22,
2010, the Court dismissed the petition for failure of petitioner to obey a lawful order of the Court. Petitioner filed a motion for
reconsideration of the Resolution, which the Court granted, and the petition was reinstated.
Petitioner argues that the CA erred in finding that he was an employee of the SSS, and not of a private corporation, at the
time of the commission of the offense referred to in Gaspar's complaint. He further argues that where there are conflicting
findings between the SSS and the CSC, the Court may make a review of the facts of the case. [14]
Petitioner claims that, at the time of the alleged recovery of P20,000.00 from Gaspar, he was still employed by the
Development Bank of the Philippines (DBP) Service Corporation, although he was detailed at the SSS. Thus, for that offense,
the most that the SSS could have done was to refer the matter to DBP for the proper disciplinary action. [15]
Petitioner emphasizes that he had no hand in filling out the forms for the claims subject of the case. [16] He points out that the
Spouses Abuan did so. Moreover, there is no evidence to show that he specifically authorized the Spouses Abuan or any of
the claimants involved to use his address.
Petitioner also highlights the CSC's finding that there was less than substantial evidence that he financially benefited from the
Spouses Abuan's transactions. Thus, he argues that the imposition of the penalty is unfounded. [17]
Petitioner also harps on the SSS' standing "file anywhere" policy to counter the allegation of irregularity in the filing of claims
of non-Baguio City residents before the SSS Baguio City branch where petitioner was assigned. [18] Likewise, he contends that
there was no prejudice to the SSS since all claimants turned out to be qualified dependents/beneficiaries. [19] He posits that
since the CSC found that he had not financially benefited from the transactions, he should not be penalized or
administratively held liable and dismissed from the service. [20]
In its Comment, the CSC, through the Office of the Solicitor General, argues that the CA correctly upheld its (CSC's) findings.
The CSC maintains that petitioner's irregular conduct left the SSS vulnerable to swindlers who may use the office as an
unwitting instrument to foist their deceit on the hapless public. [21] It said that petitioner's irregular and indiscriminate
judgment relative to the handling of claims caused a serious breach in the integrity of the system observed by the SSS, as
well as his having endangered the welfare of the public at large.
As to the question of whether there was financial gain, the CSC argues that the same is irrelevant. [22]Petitioner is guilty of
Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service whether or not he gained from
such acts, the CSC said.[23]
The CSC also insists that petitioner was already an employee of the SSS at the time of the commission of the offenses, since
he was absorbed as a regular employee on May 27, 1998.[24] His failure to refer the matter to his superiors and keeping the
money in his possession even after he was already absorbed as a regular employee of the SSS caused prejudice to the
integrity of the agency, the CSC emphasized.[25]
The Court finds the petition bereft of merit; hence, the same is denied.
Factual findings made by quasi-judicial bodies and administrative agencies when supported by substantial evidence are
accorded great respect and even finality by the appellate courts. [26] This is because administrative agencies possess
specialized knowledge and expertise in their respective fields. [27] As such, their findings of fact are binding upon this Court

unless there is a showing of grave abuse of discretion, or where it is clearly shown that they were arrived at arbitrarily or in
disregard of the evidence on record.[28]
The Court notes that, although there is some variance in the conclusion arrived at by the SSS and the CSC, their findings as
to the facts of the case are the same. Both agencies found the evidence for the complainants credible and proved that
petitioner committed the acts complained of. Moreover, the CA sustained these factual findings. The Court finds no reason to
disturb these findings, and therefore adopts the same.
Petitioner makes much of the CSC's finding that he did not financially benefit from the transactions. However, whether or not
petitioner gained any financial benefit is not relevant. Neither is the fact that the government did not actually lose money
through incorrect disbursement of public funds.
When an officer or employee is disciplined, the object sought is not the punishment of such officer or employee, but the
improvement of the public service and the preservation of the public's faith and confidence in the government. [29]
In administrative cases, the injury sought to be remedied is not merely the loss of public money or property. More significant
are the pernicious effects of such action on the orderly administration of government services. Acts that go against the
established rules of conduct for government personnel bring harm to the civil service, whether they result in loss or not.
Petitioner was charged with Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service.
Dishonesty is defined as the concealment or distortion of truth in a matter of fact relevant to one's office or connected with
the performance of his duty.[30] It implies a disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity;
lack of honesty, probity, or integrity in principle; and lack of fairness and straightforwardness. [31]
On the other hand, misconduct is a transgression of some established or definite rule of action, is a forbidden act, is a
dereliction of duty, is willful in character, and implies wrongful intent and not mere error in judgment. [32] More particularly, it
is an unlawful behavior by the public officer.[33] The term, however, does not necessarily imply corruption or criminal intent. [34]
Petitioner's acts clearly reflect his dishonesty and grave misconduct. He was less than forthright in his dealings with the
complainants. He allowed the Spouses Abuan to use his position to make their "clients" believe that he could give them
undue advantage - over others without the same connection - by processing their claims faster. Likewise, his acts imply
malevolent intent, and not merely error in judgment. He was aware of what the Spouses Abuan were doing and was complicit
in the same. At the very least, he failed to stop the illegal trade, and that constitutes willful disregard of the laws and rules.
Taken together, all the circumstances, as found by the SSS and the CSC, show that petitioner committed acts of Dishonesty,
Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service.
Prejudice to the service is not only through wrongful disbursement of public funds or loss of public property. Greater damage
comes with the public's perception of corruption and incompetence in the government.
Petitioner is reminded that a public servant must exhibit at all times the highest sense of honesty and integrity. The
Constitution stresses that a public office is a public trust and public officers must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
These constitutionally-enshrined principles, oft-repeated in our case law, are not mere rhetorical flourishes or idealistic
sentiments. They should be taken as working standards by all in the public service. [35]
WHEREFORE, the foregoing premises considered, the Petition is DENIED for lack of merit.
SO ORDERED.

EN BANC
[G.R. NO. 158737 : August 31, 2004]
CIVIL SERVICE COMMISSION, Petitioner, v. SATURNINO DE LA CRUZ, Respondent.
DECISION
CORONA, J.:
Before us is a petition for certiorari under Rule 45 of the Revised Rules of Court, seeking to review and set aside the May 14,
2003 decision1 and June 17, 2003 resolution2 of the Court of Appeals in CA-G.R. SP No. 54088, entitledSaturnino de la Cruz
v. Civil Service Commission. In that decision, the appellate court set aside CSC Resolution Nos. 98-2970 and 99-1451,
consequently approving Saturnino de la Cruz' appointment as Chief of the Aviation Safety Regulation Office.
The pertinent facts,3 as narrated by the Office of the Solicitor General, follow.
Respondent Saturnino de la Cruz is an employee of the Air Transportation Office, DOTC, presently holding the position of
Chief Aviation Safety Regulation Officer of the Aviation Safety Division.
Respondent was promotionally appointed to the said position on November 28, 1994, duly attested by the Civil Service
Commission (CSC). But prior thereto, he was a Check Pilot II in the Air Transportation Office (ATO).
In a letter dated February 9, 1995, Annabella A. Calamba of the Aviation Security Division of the ATO formally filed with the
Department of Transportation and Communication (DOTC) her protest against the promotional appointment of respondent as
Chief Aviation Safety Regulation Officer, claiming among others that respondent did not meet the four-year supervisory
requirement for said position.
On July 20, 1995, then DOTC Secretary Jesus B. Garcia rendered a decision finding the protest without merit.
Apparently dissatisfied, Calamba appealed the decision of the DOTC Secretary to the CSC-NCR.
Under date of October 17, 1995, Director Nelson Acebedo of CSC-NCR requested ATO Executive Director Manuel Gilo to
comment on the appeal and to submit to the CSC-NCR the documents pertinent thereto.
Since the CSC-NCR received no action on said request for comment, the CSC-NCR again wrote Director Gilo regarding the
matter on May 5, 1997. But to no avail.
On October 14, 1997, for the last time, the CSC-NCR reiterated to Director Gilo its request for comment.
On November 18, 1997, the CSC-NCR rendered its decision upholding the protest of Calamba and recalling the approval of
respondent's appointment as Chief Aviation Safety Regulation Officer. Said the CSC-NCR:

"After an initial evaluation of the protest, we find that the only issue to be resolved is whether or not the protestee meets the
minimum experience requirements as of the date of the protestee's appointment to the contested position. The contested
position requires four years of work experience in position/s involving management per Qualification Standards Manual
prescribed by MC No. 46, s. 1993 and/or four years of experience in planning, organizing, directing, coordinating and
supervising the enforcement of air safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen
and mechanics and regulation of the activities of flying schools per ATO Qualification Standards xxx.
xxx xxx xxx
Taking into account his previous positions, Mr. dela Cruz could not have exercised managerial or supervisory functions for the
required number of years. x x x. Moreover, vis - -vis the experience requirements of the approved ATO Qualification
Standards, Mr. dela Cruz' work experience prior to his appointment to the contested position did not concur therewith.
We are of the view therefore, that experience-wise, Mr. dela Cruz did not meet the requirements of the contested position as
of the date of his appointment thereto.
xxx xxx xxx."
Under date of December 11, 1997, ATO Director Gilo wrote the CSC-NCR asking for the suspension of the order recalling
respondent's appointment, citing several reasons in support thereof.
Subsequently, a Manifestation with Motion to Admit Addendum dated December 22, 1997 was filed by Director Gilo with the
CSC-NCR. Director Gilo argued that Calamba had no legal personality to file a protest because she is not a qualified next-inrank and that the protest was filed out of time. He likewise asserted that respondent had fully met the qualifications required
of the position.
On January 5, 1998, CSC-NCR Director Acebedo ruled that there is no cogent reason to disturb earlier rulings on the matter.
He also denied ATO Director Gilo's request, for lack of merit.
Strangely, in a letter dated January 13, 1998, CSC-NCR Director Acebedo granted Director Gilo's request and affirmed the
approval of respondent's appointment as Chief Aviation Safety Regulation Officer. He said:
"xxx xxx xxx. crvll
We reviewed again the documents including the Office Orders designating protestant dela Cruz to supervisory position which
were obviously issued during the latter part of 1993. A liberal consideration thereof would come up with a little over one year
of supervisory and managerial experience. Certainly, he was short of the required number of years of work experience for the
contested position as of the date of the issue of his appointment. Nevertheless, considering that Mr. dela Cruz has already in
his favor at least four years of continuous supervisory/managerial experience from his designation as Acting Chief of the
Aviation Safety Regulation Division, supervened by his permanent appointment thereto as Chief thereof in November 28,
1994, up to present, he has substantially satisfied the four years experience required for appointment to the contested
position.
xxx xxx xxx."
In a letter dated January 26, 1998, Calamba requested the CSC to implement the January 5, 1998 ruling of the CSC-NCR.
When asked by the CSC to clarify the conflicting rulings, CSC-NCR Director Acebedo explained that the January 5, 1998
ruling is unofficial and inexistent.
The CSC treated Calamba's request as an appeal. On November 13, 1998, the CSC rendered its Resolution No. 98-2970, the
decretal portion of which reads:
"WHEREFORE, the appeal of Annabella A. Calamba is hereby granted. The appointment of Saturnino De la Cruz as Chief
Aviation Regulation Officer is disapproved. De la Cruz is hereby reverted to his former position.
xxx xxx xxx."
Acting on the request for reconsideration filed by respondent, the CSC rendered its Resolution No. 99-1451 on July 6, 1999,
the dispositive portion of which reads:
"WHEREFORE, the instant motion for reconsideration of Saturnino dela Cruz is hereby denied. Accordingly, CSC Resolution
No. 98-2970 dated November 13, 1998 stands."

On August 11, 1999, respondent filed a Petition for Review with the Court of Appeals, docketed as CA-G.R. SP No. 54088,
seeking to nullify CSC Resolution Nos. 98-2970 and 99-1451.
In a decision4 dated March 14, 2003, the Court of Appeals granted the petition by setting aside CSC Resolution Nos. 98-2970
and 99-1451 and approving respondent's appointment as Chief of the Aviation Safety Regulation Office.
Petitioner's motion for reconsideration was subsequently denied in a resolution issued on June 17, 2003.
Hence, the instant Petition for Review .
Petitioner contends that the appellate court erred in approving respondent's appointment as Chief Aviation Safety Regulation
Officer despite his failure to meet the minimum four-year managerial and supervisory qualification for the position. It further
contends that respondent's completion of the required experience during the pendency of the present case cannot be
counted in his favor because compliance with the prescribed mandatory requirements should be as of the date of issuance of
the appointment and not the date of approval by the CSC or the resolution of the protest against the appointment.
The petition lacks merit.
Contrary to petitioner's contention, respondent has sufficiently complied with the required experience standards.
First, upon the issuance of respondent's appointment on November 28, 1994, the qualification standards of the DOTC for the
position of Chief Aviation Safety Regulation Officer were as follows:

EDUCATION: Bachelor's Degree related to Aviation

EXPERIENCE: 4 years of experience in planning, organizing, directing,
coordinating, and supervising the enforcement of air safety
laws, rules, and regulations pertaining to licensing, rating
and checking of all airmen and mechanics and the
regulation of the activities of flying schools.
License required: Airline Transport Rating / Flight
Operations Officer / Aircraft Maintenance Engineer (A&P)
License / Flight Engineer License
TRAINING:

In-service training in management; specialized course in

aircraft maintenance / air carrier operations/ flight
dispatching/ aircraft accident investigation/ equipment
qualification course / flight training (local & abroad)

ELIGIBILITY: Relevant RA 1080 Career Service Prof. 1st Grade

Relevant Eligibility for Second Level Position5
As noted by the CSC-NCR,6 the contested position required four years of work experience in managerial position(s) per the
Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or four years of experience in planning, organizing,
directing, coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing,
rating and checking of all airmen and mechanics and regulation of the activities of flying schools per the above-stated ATODOTC Qualification Standards.

Petitioner's insistence that respondent failed to meet the four-year managerial and supervisory experience requirement is
misplaced. It is a well-settled rule in statutory construction that the use of the term "and/or" means that the word "and" and
the word "or" are to be used interchangeably.7 The word "or" is a disjunctive term signifying dissociation and independence of
one thing from another.8 Thus, the use of the disjunctive term "or" in this controversy connotes that either the standard in
the first clause or that in the second clause may be applied in determining whether a prospective applicant for the position
under question may qualify.
Respondent would indeed lack the required years of work experience to qualify for the contested position if the managerial
standards in the first clause above were to be strictly followed. At the time of his permanent appointment on November 28,
1994 as Chief Aviation Safety Regulation Officer, respondent had a little over one year of managerial experience from his
designation as Acting Chief of the Aviation Safety Division during the latter part of 1993. However, the work already rendered
by respondent in the ATO at the time of his appointment was well within the supervisory standard in the second clause.
Planning, organizing, directing, coordinating and supervising the enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the activities of flying schools were
part of the work performed by respondent for more than 13 years prior to his appointment.
Before respondent was appointed to the contested position, he had held several other positions in the ATO, namely:

March 6, 1981 to July 15,

1981

Supply Checker

July 16, 1981 to February 5,

1983

Junior Aeronautical Engineer

February 6, 1983 to February Air Carrier Safety Inspector

29, 1984
March 1, 1984 to February 28, Check Pilot I
1987
March 1, 1987 to November
27, 1994

Check Pilot II

November 28, 1994 to date

Chief Aviation Safety Regulation

Officer9

These positions, spanning more than 13 years, in four of the five sections of the Aviation Safety Division of the ATO definitely
met the minimum supervisory experience required of respondent for the position.
In Rapisora v. Civil Service Commission,10 this Court held that the rule that appointees must possess the prescribed
mandatory requirements cannot be so strictly interpreted as to curtail an agency's discretionary power to appoint, as long as
the appointee possesses other qualifications required by law. The appellate court was therefore correct in setting aside the
assailed CSC resolutions and considering the respondent's total work experience as sufficient to meet the supervisory
standards under the second clause, thereby finding respondent qualified for appointment to the contested position.
Second, respondent's promotional appointment was issued in accordance with petitioner's selection process. Respondent
passed the rigid screening of the ATO Personnel Selection/Promotion Board as well as the oral and written examinations of
the DOTC Selection Board.
DOTC Assistant Secretary Panfilo V. Villaruel, Jr. noted that:

1. Capt. dela Cruz has been with the Air Transportation Office for more than 13 years already and during such period, he
faithfully and efficiently (served in) four of the five sections of the Aviation Safety Division of which the position under
consideration is the head, thereby gaining more varied experience and working knowledge of the most important and
sensitive functions of the Division over other applicants;
2. The recommendee always performs his assigned tasks promptly with dedication, integrity, high sense of responsibility and
professionalism which he had demonstrated when he established and developed the Airport Crash Rescue Organization
(ACRO) procedure to various national airports of the country, and when he organized the Air Transportation Office (ATO)
Operations Center which is now on a 24-hour operation and serving as the nerve center of this Office;
3. He is a dedicated public servant and is always willing to respond to call of duty even beyond office hours like when he is
flying the ATO's aircraft for navigation aide check during holidays and weekends, aside from conducting checkride to airmen
prior to issuance of the pilot license;
4. Capt. dela Cruz is an outstanding team worker as well as a leader and promotes enthusiasm among co-workers. He
handles all areas of job with minimal supervision and accomplishes objectives efficiently. He accepts stress situations and
performs extremely well.11
Because of respondent's excellent credentials, DOTC Assistant Secretary for Administrative and Legal Affairs Wilfredo M.
Trinidad, chair of the Personnel Selection Board, strongly recommended his promotional appointment to the contested
position.
Third, respondent's multifarious experiences and trainings12 in air transportation were taken into account when he was
chosen for the subject position. Respondent not only showed a continuing interest to improve his expertise in the field of air
transportation, he also acquired an Airline Transport Pilot's License in 1998. 13 As a privileged holder of such license,
respondent exercised administrative supervision and control over pilots, cabin and crew members to ensure compliance with
air safety laws, rules and regulations.
In addition, respondent's dedication to the service was demonstrated by his conceptualization and establishment of the
Airport Crash Rescue Organization (ACRO) procedure in various national airports in the country to ensure the security of both
airport personnel and passengers. Respondent also organized the Air Transportation Office Operations Center which now
provides air service assistance on a 24-hour basis.
Because of respondent's commendable performance, he was designated Chief of the Air Transportation Office Operations
Center in 1993 per Office Order No. 178-93,14 in addition to his duties as Check Pilot II. He was also designated Acting Chief,
Aviation Safety Division, of the ATO per Office Order No. 211-93. 15
In Teologo v. Civil Service Commission,16 the Supreme Court ruled:
"Promotions in the Civil Service should always be made on the basis of qualifications, including occupational competence,
moral character, devotion to duty, and, not least important, loyalty to the service. The last trait should always be given
appropriate weight, to reward the civil servant who has chosen to make his employment in the Government a lifetime career
in which he can expect advancement through the years for work well done. Political patronage should not be necessary. His
record alone should be sufficient assurance that when a higher position becomes vacant, he shall be seriously considered for
the promotion and, if warranted, preferred to less devoted aspirants."
As stated by ATO Executive Director Manuel Gilo in his letter to CSC-NCR Director Nelson Acebedo, "a proven excellent
performance of a person is better than just experience by occupying a position but lacks dedication to duty, strong leadership
and technical know-how."17
It is elementary in the law of public officers that the power to appoint is in essence discretionary on the part of the proper
authority. In Salles v. Francisco, et al.,18 we had occasion to rule that, in the appointment or promotion of employees, the
appointing authority considers not only their civil service eligibilities but also their performance, education, work experience,
trainings and seminars attended, agency examinations and seniority. Consequently, the appointing authority has the right of
choice which he may exercise freely according to his best judgment, deciding for himself who is best qualified among those
who have the necessary qualifications and eligibilities. The final choice of the appointing authority should be respected and
left undisturbed. Judges should not substitute their judgment for that of the appointing authority.
In the appointment of division chiefs, as in this case, the power to appoint rests on the head of the department. Sufficient if
not plenary discretion should be granted to those entrusted with the responsibility of administering the offices concerned.
They are in a position to determine who can best fulfill the functions of the office vacated. 19 Not only is the appointing
authority the officer primarily responsible for the administration of the office, he is also in the best position to determine who
among the prospective appointees can efficiently discharge the functions of the position. 20

Respondent was the uncontested choice of the appointing authority. Then DOTC Secretary Jesus B. Garcia dismissed the
protest against respondent's appointment. ATO Executive Director Gilo also noted respondent's full compliance with the
qualifications for the position. CSC-NCR Director Acebedo, who previously recalled respondent's appointment, later affirmed it
after a re-evaluation of the case and declared his previous ruling unofficial and inexistent.
Clearly then, there is no reason to disapprove the appointment of respondent as Chief of the Aviation Safety Regulation
Office considering that he is fully qualified and evidently the choice of the appointing authority. Between the Commission and
the appointing authority, we sustain the latter.21 "Every particular job in an office calls for both formal and informal
qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, etc., may
be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for
the future and best interest of the service. Given the demands of a certain job, who can do it best should be left to the head
of the office concerned provided the legal requirements for the office are satisfied." 22
We, however, agree with petitioner that the reckoning point in determining the qualifications of an appointee is the date of
issuance of the appointment and not the date of its approval by the CSC or the date of resolution of the protest against it. We
need not rule on petitioner's assertion that respondent's subsequent compliance with the experience standards during the
pendency of the case should not be counted in his favor since respondent was anyway qualified for the position at the time of
his appointment.
But even assuming for the sake of argument that respondent failed to meet the experience requirement to qualify for the
contested position, we are still inclined to uphold the appellate court's approval of respondent's appointment. Petitioner itself
has, on several occasions, allowed the appointment of personnel who were initially lacking in experience but subsequently
obtained the same.
In Civil Service Commission Resolution No. 97-0191 dated January 9, 1997, it ruled thus:
"A careful evaluation of the qualifications of Josue reveals that he meets the education, training and eligibility requirements
of the position. Considering that Josue has already in his favor three (3) years and eight (8) months experience as Senior
Inspector up to the present, he has substantially satisfied the four (4) years experience required for the appointment as Chief
Inspector."
Following petitioner's line of reasoning, respondent is deemed to have satisfactorily complied with the experience
requirement for the contested position when he was designated Chief of the ATO Operations Center and Acting Chief of the
ATO Aviation Safety Division. Having held said positions from 1993 to the present, respondent may be considered to have
acquired the necessary experience for the position.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals setting aside CSC Resolution No.
98-2970 and CSC Resolution No. 99-1451 is AFFIRMED. The appointment of Saturnino de la Cruz as Chief Aviation Safety
Regulation Officer is APPROVED.
SO ORDERED.

EN BANC
[G.R. No. 135805. April 29, 1999.]
CIVIL SERVICE COMMISSION, Petitioner, v. PEDRO O. DACOYCOY, Respondent.
DECISION

PARDO, J.:

The case before us is an appeal via certiorari interposed by the Civil Service Commission from a decision of the Court of
Appeals ruling that respondent Pedro O. Dacoycoy was not guilty of nepotism and declaring null and void the Civil Service
Commissions resolution dismissing him from the service as Vocational School Administrator, Balicuatro College of Arts and
Trade, Allen, Northern Samar.
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The facts may be succinctly related as follows:

chanrob1es virtual 1aw library

On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, Allen Chapter, Northern Samar, filed with the
Civil Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct and
nepotism. 1
After a fact-finding investigation, the Civil Service Regional Office No. 8, Tacloban City found a prima facie case against
respondent, and on March 5, 1996, issued the corresponding formal charge against him. 2 Accordingly, the Civil Service
Commission conducted a formal investigation, and on January 28, 1997, the Civil Service Commission promulgated its
resolution finding no substantial evidence to support the charge of habitual drunkenness and misconduct. However, the Civil
Service Commission found respondent Pedro O. Dacoycoy guilty of nepotism on two counts as a result of the appointment of

his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate
supervision and control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the
penalty of dismissal from the service. 3
On February 25, 1997, respondent Dacoycoy filed a motion for reconsideration; 4 however, on May 20, 1997, the Civil
Service Commission denied the motion. 5
On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special civil action forcertiorari with preliminary
injunction 6 to set aside the Civil Service Commissions resolutions.
On July 29, 1998, the Court of Appeals promulgated its decision reversing and setting aside the decision of the Civil Service
Commission, ruling that respondent did not appoint or recommend his two sons Rito and Ped, and, hence, was not guilty of
nepotism. The Court further held that it is "the person who recommends or appoints who should be sanctioned as it is he
who performs the prohibited act." 7
Hence this appeal.
On November 17, 1998, we required respondent to comment on the petition within ten (10) days from notice. 8 On
December 11, 1998, respondent filed his comment.
We give due course to the petition.
The basic issue raised is the scope of the ban on nepotism.
We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of nepotism and correctly meted
out the penalty of dismissal from the service.
The law defines nepotism 9 as follows:

jgc:chanroble s.com.ph

"SECTION 59. Nepotism. (1) All appointments to the national, provincial, city and municipal governments or in any branch
or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the
appointing or recommending authority or of the chief of the bureau or office, or of the persons exercising immediate
supervision over him, are hereby prohibited.
"As used in this Section, the word "relative" and members of the family referred to are those related within the third degree
either of consanguinity or of affinity.
(2) The following are exempted from the operations of the rules on nepotism: (a) persons employed in a confidential
capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however, That in
each particular instance full report of such appointment shall be made to the Commission."
cralaw virtua1aw library

Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third
civil degree of consanguinity or affinity of ants of the following:
chanroblesvirtuallawlibrary:re d

a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision ever the appointee.
Clearly, there are four situations covered. In the last two mentioned situations it is immaterial who the appointing or
recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor
of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office or the person
exercising immediate supervision over the appointee.
Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of Arts and Trades, Allen, Northern Samar. It
is true that he did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro
College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT, who
recommended the appointment of Rito. Mr. Daclags authority to recommend the appointment of first level positions such as
watchmen, security guards, drivers, utility workers, and casuals and emergency laborers for short durations of three to six
months was recommended by respondent Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the
provision that such positions shall be under Mr. Daclags immediate supervision. On July 1, 1992, Atty. Victorino B. Tirol II,
Director III, DECS Regional Office VIII, Palo Leyte, appointed Rito Dacoycoy driver of the school. On January 3, 1993, Mr.
Daclag also appointed Ped Dacoycoy casual utility worker. However, it was respondent Dacoycoy who certified that "funds are
available for the proposed appointment of Rito Dacoycoy" and even rated his performance as "very satisfactory." On the
other hand, his son Ped stated in his position description form that his father was "his next higher supervisor." The
circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O.

Dacoycoy, who was the school administrator. He authorized Mr. Daclag to recommend the appointment of first level
employees under his immediate supervision. Then Mr. Daclag recommended the appointment of respondents two sons and
placed them under respondents immediate supervision serving as driver and utility worker of the school. Both positions are
career positions.
To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in
the appointment of his two sons. Clearly, he is guilty of nepotism.
At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an
adverse decision of the appellate court in an administrative civil service disciplinary case. There is no question that
respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him.
10 He was the respondent official meted out the penalty of dismissal from the service. On appeal to the Court of Appeals, the
court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public
respondent 11 as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the
civil service. 12
Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of
nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent,
who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the
government. 13 Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which
seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals
to the Supreme Court. 14 By this ruling, we now expressly abandon and overrule extant jurisprudence that "the phrase party
adversely affected by the decision refers to the government employee against whom the administrative case is filed for the
purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or
dismissal from office" 15 and not included are "cases where the penalty imposed is suspension for not more than thirty (30)
days or fine in an amount not exceeding thirty days salary" 16 or "when the respondent is exonerated of the charges, there
is no occasion for appeal." 17 In other words, we overrule prior decisions holding that the Civil Service Law "does not
contemplate a review of decisions exonerating officers or employees from administrative charges" enunciated in Paredes v.
Civil Service Commission; 18 Mendez v. Civil Service Commission; 19 Magpale v. Civil Service Commission; 20 Navarro v.
Civil Service Commission and Export Processing Zone Authority 21 and more recently Del Castillo v. Civil Service
Commission. 22
The Court of Appeals reliance on Debulgado v. Civil Service Commission, 23 to support its ruling is misplaced. The issues in
Debulgado are whether a promotional appointment is covered by the prohibition against nepotism or the prohibition applies
only to original appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling
and disapproving the promotional appointment given to petitioner after the Commission had earlier approved that
appointment. Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or
recommending authority for appointing a relative. Precisely, in Debulgado, the Court emphasized that Section 59 "means
exactly what it says in plain and ordinary language: . . . The public policy embodied in Section 59 is clearly fundamental in
importance, and the Court has neither authority nor inclination to dilute that important public policy by introducing a
qualification here or a distinction there." 24
Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. In Debulgado, we stressed that"
[T]the basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended
to be a comprehensive one." 25 "The Court was unwilling to restrict and limit the scope of the prohibition which is textually
very broad and comprehensive." 26 If not within the exceptions, it is a form of corruption that must be nipped in the bud or
abated whenever or wherever it raises its ugly head. As we said in an earlier case "what we need now is not only to punish
the wrongdoers or reward the outstanding civil servants, but also to plug the hidden gaps and potholes of corruption as well
as to insist on strict compliance with existing legal procedures in order to abate any occasion for graft or circumvention of the
law." 27
WHEREFORE, the Court hereby GRANTS the petition and REVERSES the decision of the Court of Appeals in CA-G. R. SP No.
44711.
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ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the Civil Service Commission dated January 28, 1998 and
September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service.
No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Kapunan, Panganiban, Purisima, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Separate Opinions
MELO, J., dissenting:

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Although I completely agree with the result and likewise with the wisdom in which the issues relating to nepotism are

threshed out in the majority opinion, I do not agree with the majority opinion stating that the Civil Service Commission may
appeal a judgment of exoneration in an administrative case involving nepotism and Mr. Justice Puno would go further by
allowing even a private complainant and by implication, a complainant office, to appeal a decision exonerating or absolving
a civil service employee of charges against, or even imposing a penalty upon him. This totally contravenes our well-settled
ruling in Paredes v. Civil Service Commission (192 SCRA 84 [1990]), faithfully and consistently reiterated by the Court En
Banc in Mendez v. Civil Service Commission (204 SCRA 965 [1991]); Magpale v. Civil Service Commission (215 SCRA 398
[1992]); Navarro v. Civil Service Commission and Export Processing Zone Authority (226 SCRA 522 [1993]); University of
the Philippines v. Civil Service Commission (228 SCRA 207 [1993]); and more recently in Del Castillo v. Civil Service
Commission (241 SCRA 317 [1995]); that, the Philippine Civil Service Law does not contemplate a review of decision
exonerating officers and employees from administrative charges.
The Court of Appeals exonerated respondent Dacoycoy of the charge of nepotism. From such "adverse decision", the Civil
Service Commission, through its Office for Legal Affairs, interposed the present appeal by way of a petition for review
on certiorari under Rule 45 of the Rules of Court. Under existing laws and jurisprudence this is not allowed, so this Court
ruled in the above-cited cases. If this point is not stressed by the Court, the present decision might be misconstrued as a
watering down of the settled doctrine.
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Although in Mendez, what was particularly assailed was the authority of the Civil Service Commission (CSC) to review
decisions of the Merit System Promotion Board (MSPB), the Court nevertheless spelled out the rule regarding appeal from
decisions where officers and employees are exonerated of the administrative charges leveled against them. Thus, we held:

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library

It is axiomatic that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in
accordance with the provision of law (Victorias Milling Co., Inc. v. Office of the Presidential Assistant for Legal Affairs, 153
SCRA 318).
A cursory reading of P.D. 807, otherwise known as "The Philippine Civil Service Law" shows that said law does not
contemplate a review of decisions exonerating officers or employees from administrative charges.
Section 37 paragraph (a) thereof, provides:

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The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of
suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or
transfer, removal or dismissal from office. . . (Emphasis supplied) (p. 7. Rollo)
Said provision must be read together with Section 39 paragraph (a) of P.D. 805 (should be 807) which contemplates.
Appeals, where allowable, shall be made by the party adversely affected by the decision. . . (Emphasis supplied) (p. 104.
Rollo)
The phrase "party adversely affected by the decision" refers to the government employee against whom the administrative
case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary,
transfer, removal or dismissal from office. In the instant case, Coloyan who filed the appeal cannot be considered an
aggrieved party because he is not the respondent in the administrative case below.
Finally, pursuant to Section 37 paragraph (b) of P.D. 807, the city mayor, as head of the city government, is empowered to
enforce judgment with finality on lesser penalties like suspension from work for one month and forfeiture of salary equivalent
to one month against erring employees.
By inference or implication, the remedy of appeal may be availed of only in a case where the respondent is found guilty of
the charges against him. But when the respondent is exonerated of said charges, as in the case, there is no occasion for
appeal.
(pp. 967-968.)
The Mendez ruling was a reiteration of Paredes wherein we said:

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Based on the above provision of law, appeal to the Civil Service Commission in an administrative case is extended to the
party adversely affected by the decision, that is, the person or the respondent employee who has been meted out the penalty
of suspension for more than thirty days; or fine in an amount exceeding thirty days salary, demotion in rank or salary or
transfer, removal or dismissal from office. The decision of the disciplining authority is even final and not appealable to the
Civil Service Commission in cases where the penalty imposed is suspension for not more than thirty days or fine in an
amount not exceeding thirty days salary. Appeal in cases allowed by law must be filed within fifteen days from receipt of the
decision.
Here the MSPB after hearing and the submission of memoranda exonerated private respondent Amor of all charges except for
habitual tardiness. The penalty was only a reprimand so that even private respondent Amor, the party adversely affected by
the decision, cannot even interpose an appeal to the Civil Service Commission.
As correctly ruled by private respondent, petitioner Paredes the complainant is not the party adversely affected by the

decision so that she has no legal personality to interpose as appeal to the Civil Service Commission. In an administrative
case, the complainant is a mere witness (Gonzalo v. D. Roda, 64 SCRA 120). Even if she is the Head of the Administrative
Services Department of the HSRC as a complainant she is merely a witness for the government in an administrative case. No
private interest is involved in an administrative case as the offense is committed against the government.
(pp. 98-99.)
It is true that as early as Paredes, this Court was already aware of the fact that in an administrative case, any offense, not
only that involving nepotism as intimated in the majority opinion is committed against the government. As rightly pointed out
in Mr. Justice Punos Separate Opinion, the charges in Paredes and the other subsequent cases were as serious, if not more
serious than the present charge of nepotism. In fact, there might even be instances when the unlawful and nepotic act may
prove to be beneficial to the government, as in the case where the appointed employee is more than qualified for the
position. Surely, charges of abuse of authority or of graft and corruption are more serious than an accusation of nepotism, for
the acts therein involved cannot but cause injury to government. If the complainant is allowed to appeal in cases involving
nepotism, then with more reason should appeals in the dismissal of, or in the imposition of lighter penalties in the charges
mentioned. How about sexual harassment? Malversation? Where will this end up in except allowing appeal in all cases. The
Court shall then be legislating or, at least, abandoning settled doctrine for no compelling reasons. Taking the case of
nepotism as the exception to the rule would not be justified considering that, despite the greater seriousness of the charges
in the earlier cases, we still did not rule therein that the government may take the appeal as the "party adversely affected" .

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There is more cogent reason, therefore, for the Court to adhere to the general rule in an administrative case involving
nepotism. Besides, the law cannot be clearer on the matter. It made no distinction as regards the charge of nepotism. When
the law does not distinguish, the Court should not distinguish.
It should also be noted that Presidential Decree No. 807 has not undergone any pertinent amendment since the Court applied
the law in Paredes. From the time of its passage on October 6, 1975 until the present, appeals by the government in cases of
exoneration in an administrative case had been disallowed. It was not only the result of this Courts "interpretation" of the
law in Paredes that made it so. It was rather the real and definite intention of the Philippine Civil Service Law. If it was the
intention of Legislature to allow appeals as the majority holds or as Mr. Justice Puno suggests, then, an amendment to that
effect could have been introduced and passed. Then President Marcos who had full legislative power could have easily
amended the said law. The records show that he did not. The fact that no such amendment; has been introduced even after
the re-institution of a legislative body, the Batasang Pambansa, and later in 1987, the Congress of the Philippines, signifies
that, at the very least our interpretation in Paredes and the other subsequent cases sits well with Congress. It is my
submission that the prerogative to now determine whether this practice of disallowing appeals in cases of exoneration should
still continue or not, exclusively belongs to Legislature. The Court cannot and should not arrogate this policy-making power of
Congress unto itself, not even in the guise of the exercise of its expanded power of judicial review under the 1987
Constitution. Only Congress has authority to remedy inadequacies in the wisdom of a law, should it find any, especially when
the definite intention of the existing law was to disallow the State to appeal from judgments of exoneration. Any attempt by
the Court to transgress this most basic principle in the separation of powers between these two branches of government
would, to my mind, result in the abhorrent act of judicial legislation, if not outright disregard of Article 7 of the Civil Code
which states that:
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ARTICLE 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
Effective June 1, 1995, Revised Administrative Circular No. 1-95 ordained that appeals from awards judgments or final orders
or resolution of or authorized by any quasi-judicial agency (which includes the Civil Service Commission) in the exercise of its
quasi-judicial functions shall be taken by filing a verified petition for review with the Court of Appeals. Although in general,
appeal by certiorari from a judgment or final order or resolution of the Court of Appeals may be filed via a verified petition for
review on certiorari with this Court (where pure questions of law, distinctly set forth therein, may be duly raised), an appeal
involving a judgment or final order of the Court of Appeals exonerating a government employee in an administrative case, in
particular falls, within the ambit of the provisions of Section 39, paragraph (a) of Presidential Decree No. 807. It is
elementary that a special law such as Presidential Decree No. 807 takes precedence over general rules of procedure such as
Rule 45 of the Rules of Court. No appeal may, thereof, be taken under Rule 45.
Moreover, it is recognized in our jurisdiction that an administrative case which could result in the revocation of license, or
similar sanctions like dismissal from office, constitutes a proceeding which partakes of a criminal nature (cf. Pascual v. Board
of Medical Examiners, 28 SCRA 345 [1969]). Being such, provisions of law pertaining thereto must perforce be construed
strictly against the State, just as penal laws are strictly construed strictly against the State (People v. Manahan, 5 SCRA 684
[1962]). Any ambiguity, should there be any, must be resolved in favor of the respondent in the administrative case. The
term "party adversely affected" should not be construed as to include the State in administrative charges involving nepotism.
To allow appeals from decisions, be they exonerative or otherwise, against civil service employees would, to my mind, be
stocking the stakes too much against our civil servants. It should be noted in this regard that the greater bulk of our
government workers are ordinary people, working under supervision and, more often than not, exposed to political pressure
and the influence of peddlers of power. Their simple status notwithstanding, they are not easily cowed and intimidated. Many,
though, are threatened with complaints, transfer of station, or demotion, if they refuse to do the bidding of some
unscrupulous superiors or politicians. I can, therefore, understand why the law and our jurisprudence disallow appeal by the
complainant from decisions in administrative cases, be they exonerative or otherwise. Verily, an employee may be hounded

into spending up to his last resources and losing his self-respect and honor by successive appeals.
What will happen, if for instance, the respondent government employee is initially exonerated or given a light penalty, and
the complainant may appeal, insisting that the employee is guilty or that he deserves a heavier penalty? And, if the Civil
Service Commission thereafter metes out a penalty no to the liking of the complainant, the matter may still be elevated to
the Court of Appeals or even this Court? Where else will all this end, if not in the physical and financial exhaustion of the
respondent civil servant? Again, I wish to stress that I speak here of the ordinary employees. The big shots in government
who commit wrongs may somehow hereby benefit, but then we shall be content in concluding that we decided in favor of the
many, that the good of the majority prevailed.
A judgment of exoneration by the Court of Appeals, as in the case of a judgment of exoneration by the Civil Service
Commission or the now defunct Merit System Protection Board, may indeed prove to be truly adverse to the government
agency concerned and eventually to the State as a whole. This is especially so when there had been lapses in the
interpretation and/or application of the law as in the present case. This notwithstanding the right to appeal, which is merely
statutory may not be invoked, much less exercised, when the law does not provide any. Again, until and unless Congress
exercises its prerogative to amend such law, this Court is bound by it and has no other recourse except to apply the same.
Fortunately for petitioner but not so for respondent, the latter failed to invoke the foregoing general rule. In a similar case,
we held that the party favored by such law who fails to interpose any objection to an appeal may be deemed to have waived
this right. The Court En Banc, speaking through Mr. Justice Camilo D. Quiason in Mendoza v. Civil Service Commission (233
SCRA 657 [1994]), held:
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We decided this case with full awareness of the decisions in Paredes v. Civil Service Commission, 192 SCRA 84 (1990) and
Mendez v. Civil Service Commission, 204 SCRA 965 (1991), where we held that only the respondent in the administrative
disciplinary case, not the complainant, can appeal from a decision of the Merit Systems Protection Board (See also Magpale v.
Civil Service Commission, 215 SCRA 398 [1992]). These decisions were anchored on the interpretation of Section 39(a) of
P.D. No. 807, the "Philippine Service Law," which provides that appeals to the CSC shall be made by the "party adversely
affected by the decision. "We interpreted the quoted phrase as referring to the respondent in the administrative case.
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When private respondent appealed the decision of the MSPB to the CSC, petitioner never questioned the propriety of the
appeal and preferred to defend the correctness of the decision. Likewise, petitioner failed to question before this Court the
right of private respondent to appeal from the decision of the MSPB. A law limiting the right to appeal to the respondent in
the administrative case is a rule of procedure, not of substantive law. Failure to invoke timely a rule of procedure in favor of a
party constitutes a waiver thereof (Republic v. Judge Villanueva, G.R. No. 83333. February 13, 1989. En Banc. Minute
Resolution).
(pp. 663-664).
As a final observation, it may be well noted that the result in the present case may already be achieved by the application of
this Courts ruling in Mendoza. It might not be necessary to step over board by institutionalizing the case of nepotism as an
exception to Paredes, or, as Mr. Justice Puno proposes, abandoning Paredes altogether. I believe that it will do our justice
system more good than harm if we abide by the principle of stare decisis in the present case. This case, I humbly submit is
not the proper vehicle to review and abandon doctrines of long standing for nonetheless, the appeal by the complainant is
allowed there being no objection thereto by respondent Dacoycoy. We need not disturb at this time our old rulings. We need
not enter uncertain and minded fields, for the result sought to be accomplished by the majority can well be achieved by
simply following and applying our previous rulings on the matter.
Premises considered and with the above observations, I vote to grant the petition as stated in the dispositive thereof.
Vitug and Quisumbing, JJ., concur.
ROMERO, J., dissenting:

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Does the Civil Service Commission have the legal personality to appeal a decision of the Court of Appeals exonerating an
employee charged in an administrative case, which decision in effect reversed and nullified the Commissions finding that the
respondent employee is guilty as charged?
After an exhaustive and careful scrutiny of P.D. No. 807 otherwise known as the Civil Service Law). Executive Order No. 292
(otherwise known as the Revised Administrative Code of 1987) as well as the Omnibus Rules Implementing Book V of
Executive Order No. 292. I find no legal basis to support the contention of the majority that the Commission has that legal
personality.
The Civil Service Commission is the central personnel agency of the government 1 Corollarily, it is equipped with the power
and function to hear and decide administrative cases instituted by or brought before it directly or on appeal, including
contested appointments and to review decisions and actions of its offices and of the agencies attached to it. 2 This is in
consonance with its authority to pass upon the removal, separation and suspension of all officers and employees in the civil
service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees except as
otherwise provided by the Constitution or by law. 3 Sitting en banc it is composed of a Chairman and two Commissioners 4
who shall decide by a majority vote of all its Members any case or matter brought before it for resolution. 5

It is thus clear that the Civil Service Commission has been constituted as a disciplining authority. Such has always been the
intent of the 1987 Constitution, the Revised Administrative Code of 1987 on the Civil Service Commission, as well as the Civil
Service Law. In fact, the Proposed Civil Service Code of the Philippines seeks to provide that the Commission shall have
concurrent original disciplinary jurisdiction over officials and employees, including Presidential appointees of the departments,
agencies, bureaus, provinces, cities, municipalities, state colleges and universities, and instrumentalities, including
government-owned or controlled corporations with original charters. Pursuant to its quasi-judicial function, it acts as an
impartial tribunal in the resolution of the cases brought before it.
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Section 34, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides the answer as to who
may appear before the Commission, thus:
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"Administrative proceedings may be commenced against a subordinate officer or employee by the following officials and
employees:
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(a) Secretary of department;

(b) Head of Office of Equivalent Rank;
(c) Head of Local Government Unit;
(d) Chief of Agency;
(e) Regional Director; or
(f) Upon Sworn, Written complaint of Any other Person." 6 (Emphasis supplied)
Consequently, the complainant can either be the Secretary of department, head of office of equivalent rank, head of a local
government unit, chief of agency, regional director or any other person or party. "The phrase any other party has been
understood to be a complainant other than the head of department or office of equivalent rank or head of local government
or chiefs of agencies or regional directors." 7 As further illustrated in Sec. 37 of P.D. No. 807:
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". . . A complaint may be filed directly with the Commission by a private citizen against a government official or
employee. . ."
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The respondent, on the other hand, is any subordinate officer or employee. Nowhere can be found, expressly or impliedly, in
Section 34 of Rule XIV of Omnibus Rules Implementing Book V of E.O. No. 292, the Commission as one of the parties, either
as complainant or respondent in an administrative case. Logically and by necessary implication, it cannot be considered
either a complainant or aRespondent. Expressio unius est exclusio alterius. The express mention of one person, thing or
consequence implies the exclusion of all others. 8 Based on the foregoing, there is no other conclusion but that the Civil
Service Commission is not a party to an administrative proceeding brought before it. As provided by Supreme Court
Administrative Circular 1-95, decisions, orders or rulings of the Commission may be brought to the Supreme Court, now to
the Court of Appeals, oncertiorari by the aggrieved party. 9 By inference, an aggrieved party is either the one who initiated
the complaint before the Commission or the respondent, the person subject of the complaint. In fact, the question as to who
is an "aggrieved party" has long been settled in a litany of cases. An aggrieved party in an administrative case is the
government employee against whom an administrative complaint is filed. The Civil Service Commission is definitely not a
government employee. Neither is it an agency against whom an administrative charge is filed. While it may be argued that,
in a sense, the government is an "aggrieved party" in administrative proceedings before the Commission, it nevertheless is
not the "aggrieved party" contemplated under P.D. No. 807 or the Civil Service Law.
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Having established that the Civil Service Commission is not a partly, much less an aggrieved party, then indubitably, it has no
legal personality to elevate the case to the appellate authority. The Commission, therefore, has no legal standing to file the
instant petition.
While admittedly, the Civil Service Commission is considered a nominal party when its decision is brought before the Court of
Appeals, such is only a procedural formality. As with appellate processes, a nominal party is not the aggrieved party. Its
inclusion as a party is based primarily on the fact that the decision, order or ruling it issued is being contested or assailed
and secondarily, for purposes of enforcement. By analogy, the Commission in the performance of its quasi-judicial functions
is just like a judge who should "detach himself from cases where his decision is appealed to a higher court for review. The
raison detre for such doctrine is that a judge is not an active combatant in such proceeding and must leave the opposing
parties to contend their individual positions and for the appellate court to decide the issues without his active participation.
By filing this case, petitioner in a way ceased to be judicial and has become adversarial instead." 10
I dissent from the ponencias conclusion that the Commission may appeal a judgment of exoneration in an administrative
case involving nepotism in light of the foregoing disquisition.
cralawnad

PUNO, J., concurring:

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The far reaching fall-out effects of the majority opinion on the merit and fitness philosophy of our civil service system compel
the submission of this humble concurring opinion. The doctrine barring appeal in exoneration cases was first enunciated in
the 1990 case of Paredes, where this Court held:1
"As regards G.R. No. 89530, the crucial issue to be resolved is whether or not petitioner Paredes has the legal personality to
appeal the decision of the MSPB absolving private respondent Amor of all charges except for habitual tardiness for which the
latter was reprimanded.
"Appeal in judicial proceedings is a statutory right that must be exercised only in the manner and in accordance with the
provisions of law (Ozaeta v. Court of Appeals, G.R. 83281, December 4, 1989; Velasco v. Court of Appeals, 51 SCRA 439).
This doctrine is also applicable in quasi-judicial proceedings so that one must first ascertain the law applicable to determine
whether or not the party can appeal the order or decision.
"Section 37 of Presidential Decree No. 807, provides, viz:

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SECTION 37. (a) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of
a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or
salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen
against a government official or employee in which case it may hear and decide the case or it may deputize any department
or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to
the Commission with recommendation as to the penalty to be imposed or other actions to be taken.
(b) The heads of departments, agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to
investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their
decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not
exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the
same may be initially appeared to the department and finally to the Commission and pending appeal, the same shall be
executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the
department head.
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(c) An investigation may be entrusted to the regional director or similar officials who shall make the necessary report and
recommendation to the chief of bureau or office or department, within the period specified in Paragraph (d) of the following
Section.
(d) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the
respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event
he wins an appeal.
Section 39 thereof also provides, viz:

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SECTION 39. (a) Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen
days from receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided
within fifteen days. Notice of the appeal shall be filed with the disciplining office, which shall forward the records of the case,
together with the notice of appeal, to the appellate authority within fifteen days from filing of the notice of appeal, with its
comment, if any. The notice of appeal shall specifically state the date of the decision appealed from and the date or receipt
thereof. It shall also specifically set forth clearly the grounds relied upon for excepting from the decision.
(b) A petition for reconsideration shall be based only on any of the following grounds: (1) new evidence has been discovered
which materially affects the decision rendered; (2) the decision is not supported by the evidence on record; (3) errors of law
or irregularities have been committed prejudicial to the interest of the respondent: Provided, that only one petition for
reconsideration shall be entertained.
"Based on the above provisions of law, appeal to the Civil Service Commission in an administrative case is extended to the
party adversely affected by the decision, that is, the person of the respondent employee who has been meted out the penalty
of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or
transfer, removal or dismissal from office. The decision of the disciplining authority is even final and not appealable to the
Civil Service Commission in cases where the penalty imposed is suspension for not more than thirty days or fine in an
amount not exceeding thirty days salary. Appeal in cases allowed by law must be filed within fifteen days from receipt of the
decision.
"Here, the MSPB, after hearing and submission of memoranda, exonerated private respondent Amor of all charges except for
habitual tardiness. The penalty was only a reprimand so that even private respondent Amor, the party adversely affected by
the decision, cannot even interpose an appeal to the Civil Service Commission.
"As correctly ruled by private respondent, petitioner Paredes the complainant is not the party adversely affected by the
decision so that she has no legal personality to interpose an appeal to the Civil Service Commission. In an administrative
case, the complainant is a mere witness (Gonzales v. De Roda, 64 SCRA 120). Even if she is the Head of the Administrative

Services Department of the HSRC, as a complainant she is merely a witness for the government in an administrative case.
No private interest is involved in an administrative case as the offense is committed against the government."
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Paredes was reiterated a year later or in 1991 in Mendez, where, again with Mr. Justice Paras as ponente, this Court held: 2
"The petitioner filed a motion for reconsideration, assailing the reversal of the city mayors decision by the MSPB and the CSC
on the ground that Coloyan is not an aggrieved party or party adversely affected by the decision allowed by law to file an
appeal. Moreover, the petitioner claimed that his exoneration by the city mayor is unappealable pursuant to Section 37,
paragraph (b) of P.D. 807.
"The CSC, however, denied said motion for reconsideration ruling that there is nothing in the said law which precludes an
appeal from the decision of the disciplining authorities to determine, among others, whether the decision rendered is
supported by the facts on record and the law."
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"Hence, the present petition.

"We find merit in the petition.
"It is axiomatic that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in
accordance with the provision of law. (Victorias Milling Co., Inc. v. Office of the Presidential Assistant for Legal Affairs, 153
SCRA 318).
"A cursory reading of P.D. 807, otherwise known as "The Philippine Civil Service Law," shows that said law does not
contemplate a review of decisions exonerating officers or employees from administrative charges.
"Section 37 paragraph (a) thereof, provides:

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The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of
suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or
transfer, removal or dismissal from office. . ." (Emphasis supplied) (p. 7, Rollo)
"Said provision must be read together with Section 39, paragraph (a) of P.D. 805 which contemplates:

jgc:chanrobles.com .ph

"Appeals, where allowable, shall be made by the party adversely affected by the decision. . ." (Emphasis supplied) (p. 104,
Rollo)
"The phrase party adversely affected by the decision refers to the government employee against whom the administrative
case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary,
transfer, removal or dismissal from office. In the instant case, Coloyan who filed the appeal cannot be considered an
aggrieved party because he is not the respondent in the administrative case below.
"Finally, pursuant to Section 37, paragraph (b) of P.D. 807, the city mayor, as head of the city government, is empowered to
enforce judgment with finality on lesser penalties like suspension from work for one month and forfeiture of salary equivalent
to one month against erring employees.
"By inference or implication, the remedy of appeal may be availed of only in a case where the respondent is found guilty of
the charges filed against him. But when the respondent is exonerated of said charges, as in this case, there is no occasion for
appeal."
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Again a year later or in 1992, in Magpale, Jr., this time with Mr. Justice Melo as ponente, the Court reiterated the Paredes
doctrine, viz: 3
"After Mendez v. Civil Service Commission (204 SCRA 965) [1991], the extent of the authority of respondent CSC to review
the decisions of the MSPB is now a settled matter.
The Court, in said case held:

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It is axiomatic that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in
accordance with the provision of law. (Victorias Milling Co., Inc. v. Office of the Presidential Assistant for Legal Affairs, 153
SCRA 318).
A cursory reading of PD 807, otherwise known as The Philippine Civil Service Law, shows that said law does not contemplate
a review of decision exoneration (sic) officers or employees from administrative charges.
Section 37, paragraph (a) thereof, provides:

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The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of
suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or
transfer, removal or dismissal from office. . . (Emphasis supplied) (p. 7, Rollo)

Said provision must be read together with Section 39, paragraph (a) of P.D. 805 which contemplates:

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Appeals, where allowable, shall be made by the party adversely affected by the decision. . . (Emphasis supplied) (p. 104,
Rollo)
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The phrase party adversely affected by the decision refers to the government employee against whom the administrative
case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary,
transfer, removal or dismissal from office. In the instant case, Coloyan who filed the appeal cannot be considered an
aggrieved party because he is not the respondent in the administrative case below.
Finally, pursuant to Section 37, paragraph (b) of P.D. 807, the city mayor, as head of the city government, is empowered to
enforce judgment with finality on lesser penalties like suspension from work for one month and forfeiture of salary equivalent
to one month against erring employees.
By inference or implication, the remedy of appeal may be availed of only in a case where the respondent is found guilty of
the charges filed against him. But when the respondent is exonerated of said charges, as in this case, there is no occasion for
appeal. (pp. 967-968)
The above ruling is a reiteration of the earlier pronouncement in Paredes v. Civil Service Commission (192 SCRA 84 [1990])
cited by petitioner, . . .
x

"While it is true, as contended by respondent Civil Service Commission, that under Section 12 (Par. 11), Chapter 3, Subtitle
A, Book V of Executive Order 292, the CSC does have the power to
Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested
appointments, and review decisions and actions of its offices and of the agencies attached to it. . .
the exercise of the power is qualified by and should be read together with the other sections to the same sub-title and book
of Executive Order 292, particularly Section 49 which prescribes the following requisites for the exercise of the power of
appeal, to wit:
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(a) the decision must be appealable;

(b) the appeal must be made by the party adversely affected by the decision;
(c) the appeal must be made within fifteen days from receipt of the decision, unless a petition for reconsideration is
seasonably filed; and
(d) the notice of appeal must be filed with the disciplining office, which shall forward the records of the case, together with
the notice of appeal to the appellate authority within fifteen days from filing of the notice of appeal, with its comment, if any.
"Under Section 47 of the same Code, the CSC shall decide on appeal all administrative disciplinary cases involving the
imposition of:
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(a) a penalty of suspension nor more than thirty days; or

(b) fine in an amount exceeding thirty days salary; or
(c) demotion in rank or salary or transfer; or
(d) removal or dismissal from office.
"The February 5, 1990 decision of the MSPB did not involve dismissal or separation from office, rather, the decision
exonerated petitioner and ordered him reinstated to his former position. Consequently, in the light of our pronouncements in
the aforecited cases of Mendez v. Civil Service Commission and Paredes v. Civil Service Commission, the MSPB decision was
not a proper subject of appeal to the CSC.
"Settled is the rule that a tribunal, board, or officer exercising judicial functions acts without jurisdiction if no authority has
been conferred by law to hear and decide the case. (Arena v. Civil Service Commission, 193 SCRA 623 [1991])."
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In 1994, in Mendoza v. Civil Service Commission, the Court, with Mr. Justice Quiason as ponente, avoided the Paredes rule by
holding: 4
x

"We decided this case with full awareness of the decisions in Paredes v. Civil Service Commission, 192 SCRA 84 (1990) and
Mendez v. Civil Service Commission, 204 SCRA 965 (1991), where we held that only the respondent in the administrative
disciplinary case, not the complainant, can appeal from a decision of the Merit Systems Protection Board (See also Magpale v.
Civil Service Commission, 215 SCRA 398 [1992]). These decisions were anchored on the interpretation of Section 39(a) of
P.D. No. 807, the Philippine Civil Service Law, which provides that appeals to the CSC shall be made by the party adversely
affected by the decision. We interpreted the quoted phrase as referring to the respondent in the administrative case.
"When private respondent appealed the decision of the MSPB to the CSC, petitioner never questioned the propriety of the
appeal and preferred to defend the correctness of the decision. Likewise, petitioner failed to question before this Court the
right of private respondent to appeal from the decision of the MSPB. We treat such inactions of petitioner as a waiver on his
part to question the authority of the CSC to review the decision of the MSPB. A law limiting the right to appeal to the
respondent in the administrative case is a rule of procedure, not of substantive law. Failure to invoke timely a rule of
procedure in favor of a party constitutes a waiver thereof (Republic v. Judge Villanueva, G.R. No. 83333, February 13, 1989,
En Banc, Minute Resolution)."
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II
With humility, I make the submission that it is time to strike down the doctrine disallowing appeals to the Civil Service
Commission when the decision exonerates a government official or employee from an administrative charge. The doctrine is
principally based on a constricted interpretation of Section 39 of P.D. No. 807 (Civil Service Law) which states:
jgc:chanroble s.com.ph

"SECTION 39. (a) Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days
from receipt of the decision unless a petition reconsideration is seasonably filed, which petition shall be decided within fifteen
days. . ."
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According to Paredes, Mendez and Magpale, the phrase "party adversely affected by the decision" refers alone to the
respondent government official or employee against whom the administrative case is filed. They excluded from its compass
the party complainant whose charge is dismissed. Hence, when the respondent government official or employee is
exonerated, the decision is deemed final as the party complainant is precluded from appealing.
I find it difficult to agree with the above interpretation which is not only too narrow but is subversive of the essence of our
civil service law. In the case at bar, private respondent is the Vocational Administrator of the Balicuatro College of Arts and
Trades. He is charged with the offense of nepotism for the appointment of two sons as driver and utility worker under his
immediate control and supervision. It is beyond argument that nepotism is prohibited by our civil service law for it breeds
inefficiency, if not corruption, in government service. The critical question, therefore, is: who has the standing to prevent the
violation of this law and protect public interest? I submit that a taxpayer has the standing to bring suit to void nepotic acts
for he has an interest that "appointments in the civil service shall be made only according to merit and fitness . . ." 5 A
taxpayer has a right to good government and good government cannot result from appointments determined by bloodlines.
The Civil Service Law itself recognizes what there are offenses which can be the subject of a complaint by any private citizen.
Thus, Section 37 of the law allows any private citizen to file a complaint against a government official or employee directly
with the Commission. Section 38 also recognizes that "administrative proceedings may be commenced against a subordinate
officer or employee by the head of department or office of equivalent rank, or head of local government or chiefs of agencies,
or regional directors or upon sworn written complaint of any other persons." The general rule is that one who has a right to
be heard has standing to seek review of any ruling adverse to him. Hence, if a private citizen has the right to file an
administrative complaint, he must also have the right to appeal a dismissal of his complaint, unless the law clearly precludes
his right of appeal for indubitable policy reasons. A contrary rule will diminish the value of the right to complain. The cases of
Paredes, Mendez and Magpale do not give any policy reason why the dismissal of a charge of nepotism cannot be appealed.
They merely resort to doubtful inferences in justifying the bar to appeals. Such an approach goes against the rule that
"preclusion of judicial review of administrative action. . . is not lightly to be inferred." 6
In truth, the doctrine barring appeal is not categorically sanctioned by the Civil Service Law. For what the law declares as
"final" are decisions of heads of agencies involving suspension for not more than thirty (30) days or fine in an amount not
exceeding thirty (30) days salary. But there is a clear policy reason for declaring these decisions final. These decisions involve
minor offenses. They are numerous for they are the usual offenses committed by government officials and employees. To
allow their multiple level appeal will doubtless overburden the quasi-judicial machinery of our administrative system and
defeat the expectation of fast and efficient action from these administrative agencies. Nepotism, however, is not a petty
offense. Its deleterious effect on government cannot be over-emphasized. And it is a stubborn evil. The objective should be
to eliminate nepotic acts, hence, erroneous decisions allowing nepotism cannot be given immunity from review, especially
judicial review. It is thus non sequitur to contend that since some decisions exonerating public officials from minor offenses
can not be appealed, ergo, even a decision acquitting a government official from a major offense like nepotism cannot also
be appealed.
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Similarly, the doctrine barring appeal cannot be justified by the provision limiting the jurisdiction of the Civil Service
Commission to review decisions involving: (1) suspension for more than thirty (30) days; (2) fine in an amount exceeding
thirty (30) days salary; (3) demotion in rank or salary; and (4) transfer, removal or dismissal from office. Again, there is
nothing in this provision indicating legislative intent to bar appeal from decisions exonerating a government official or

employee from nepotism. Statutory preclusion of appeals is the exception rather than the rule, for as stressed by Mr. Justice
Douglas, "tolerance of judicial review has been more and more the rule against the claim of administrative finality." 7 Yet the
cases of Paredes, Mendez and Magpale precisely barred all appeals despite lack of an explicit, positive provision in the Civil
Service Law.
III
Moreover, the case at bar involves the right of a party adversely affected to resort to judicial review. This case does not
involve the appellate jurisdiction of the Civil Service Commission, i.e., whether or not it has the power to review a decision
exonerating a government official from a charge of nepotism. The facts show that it was the Civil Service Commission that at
the first instance found Dacoycoy guilty of nepotism. It was Dacoycoy who appealed the decision of the Civil Service
Commission to our regular court, more exactly, the Court of Appeals pursuant to the Rules of Court. As Dacoycoy only
impleaded Suan as respondent, the Court of Appeals ordered that the Civil Service Commission should also be impleaded as
party Respondent. The Court of Appeals then reversed the Commission as it cleared Dacoycoy from the charge of nepotism.
The question therefore is whether or not this Court is precluded from reviewing the decision of the Court of Appeals on a
petition forcertiorari under Rule 45. Again, I submit that this Court has jurisdiction to entertain this review. Indeed, under the
Constitution, the jurisdiction of this Court has even been expanded "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government." 8
The question is not our lack of jurisdiction but the prudential exercise of power. In certiorari cases alleging grave abuse of
discretion, our given task is to determine how much is too much of an abuse.
To my mind, it is also of de minimis importance that the petition to this Court was filed by the Civil Service Commission. The
records will reveal that Suan, the original complainant, wrote to the Civil Service Commission urging it to make the appeal
ostensibly for lack of means. But even without Suan, I submit that the nature of the issue in the case at bar and its impact
on the effectiveness of government give the Civil Service Commission the standing to pursue this appeal. The issue in the
case at bar is basically a legal one, i.e., the proper interpretation of who can be convicted of nepotism, and undoubtedly, this
Court has the authoritative say on how to interpret laws. Administrative agencies have always conceded that the final
interpretation of laws belongs to regular courts. And the issue has broad implications on the merit and fitness philosophy of
our civil service system. Under Sec. 3, Article IX (B) of our Constitution, it is the Civil Service Commission that has oversight
of our civil service system. It is thus the party better equipped to argue the diverse dimensions of the issue. It is also the
most affected, for it has the duty not to stand still when nepotic practices threaten the principle of meritocracy in our
government. It seems to me self evident that this type of injury to public interest can best be vindicated by the Commission
and not by a private person.
There are other disturbing implications if we do not junk the doctrine of non-reviewability of decisions exonerating
government officials from charges of nepotism. For one, the doctrine unduly favors officials charged with nepotism, for while
we allow further review of their conviction, we disallow review of their exoneration, regardless of the errors. This distorted
rule contravenes our distaste against nepotism, a practice whose continuance can fatally erode faith in government. For
another perpetuating a nepotic act, an evil that should be extirpated wherever found, can never be the intent of our
legislators who crafted our Civil Service Law. For still another, completely cutting off access to judicial review goes against the
spirit of the 1987 Constitution expanding the jurisdiction of this Court. Putting up borders of non-reviewability weakens the
judiciarys checking power. Indeed, shielding abusive administrative actions and decisions from judicial oversight will
ultimately erode the rule of law. As Justice Brandeis opined, "supremacy of law demands that there shall be an opportunity to
have some court decide whether an erroneous rule of law was applied and whether the proceeding in which facts were
adjudicated was conducted regularly." 9
As we cross the new millennium, our people will find their lives more and more affected by orders and regulations coming
from administrative agencies. Predictably, some of these orders, rules and regulations will devalue rights and violate policy
polestars of our Constitution with greater velocity. It is for this reason and more that the 1987 Constitution mandated this
Court to be a more active agent in checking abuse of power in government. We will default in this role if we continue to
uphold the doctrine of non-reviewability of decisions exonerating government officials from nepotism. A government free
from nepotism is a proclamation that needs no precis.
I join the majority opinion.

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EN BANC
[G.R. No. L-89. February 1, 1946.]
JOSE TOPACIO NUENO, MANUEL DE LA FUENTE, EUSTAQUIO C. BALAGTAS, and DELIA C. DIO, Petitioners, v.
GERARDO ANGELES, AGATON EVANGELISTA, ANDRES SANTA MARIA, VICENTE G. CRUZ, AMADO V. HERNANDEZ
and FELICIDAD MANUEL, Respondents.
Jose Topacio Nueno, for Petitioners.
Assistant Fiscal Gregorio S. Narvasa for Respondents.
Nicolas V. Villaruz for respondent members of "Young Philippines."

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SYLLABUS
1. PLEADING AND PRACTICE; "QUO WARRANTO" ; COMPLAINT; NECESSITY OF SPECIFYING CLAIMANT TO, AND USURPER
OF, OFFICE INVOLVED. An individual who files a complaint of quo warranto must set name of the person who claims to be
entitled to the office and that of the defendant who is unlawful in possession thereof, and those who claim to be entitled to
the same office may be made parties in order to determine their respective rights to the office in the same action. An
individual can not sue and oust two or more persons although the latter are holding illegally their respective offices, unless
he is entitled to all of them.
2. PUBLIC OFFICERS; TERM OF OFFICE DISTINGUISHED FROM TENURE OF INCUMBENT; TERM OF OFFICE NOT EXTENDED
BY REASON OF WAR. The term of an office must be distinguished from the tenure of the incumbent. The term means the
time during which the officer may claim to hold the office as of right, and fixes the interval after which the several
incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office.
The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. There is no principle, law
or doctrine by which the term of an office may be extended by reason
3. ID.; RULE OF HOLD-OVER. While there is authority to the contrary, the general trend of decisions of American courts is

to adopt the common-law rule of hold-over. The rule is, as enunciated in 46 Corpus Juris, 968, that "in the absence of an
express or implied constitutional or statutory provision to the contrary, an officer is entitled to hold his office until his
successor is appointed or chosen and has qualified." This enunciation of the rule is substantially the same as that in
McQuillin, Municipal Corporations, vol. II, second ed., art. 307. The legislative intent not to permit holding over may therefore
be express or implied in legislative acts or enactments.
4. ID.; ID.; SUPPRESSION OF HOLD-OVER BY LEGISLATION INTENT. The repeal of all prior provisions for holding over by
the provincial, city and municipal elective officers by Commonwealth Act No. 357, and the enactment of section 16 thereof
which provides for the filling of all vacancies, temporary or otherwise, which might occur during and after the expiration of a
term of office, so as to avoid the necessity and even the occasion for holding over, clearly show the manifest intention of
Congress to suppress the hold-over.
5. ID.; ID.; ID.; POLICY OF RECALL ANNOUNCED BY PRESIDENT. The policy announced by the President of the
Commonwealth in his message to Congress on June 9, 1945, that "the provincial and municipal officers who were elected in
1940 should, as a general principle, be recalled to their respective positions, thus giving due consideration to the will of the
people as expressed at the polls, and only for strong reasons should they be deprived of their privilege to serve," cannot be
invoked in support of the right to hold-over. In the first place, because the message has not the force and effect of law and is
therefore not a legislative interpretation of the law; and secondly, because if any weight may be given to that policy in the
decision of this case it would work against the alleged right to hold-over. If provincial and municipal officers are entitled by
law to hold-over, they would have the right to continue in office irrespective of any policy which the President may adopt, for
the latter cannot deprive them of said right. If the President has to recall and appoint them to their respective original
positions pursuant to such policy, it is because they are not entitled to hold-over.
6. ID.; VACANCIES IN ELECTIVE PROVINCIAL OR MUNICIPAL OFFICES AND OF CITY OF MANILA. The only vacancies which
may possibly occur in elective provincial or municipal offices, as well as of the City of Manila, are those provided for in section
16 of Commonwealth Act No. 357, and in section 2440 (e) of the Revised Administrative Code, applicable only to members of
the Municipal Board of the City of Manila, besides those enumerated in said section 16 which are not in conflict therewith for
according to section 2440 (d) as amended by Act No. 233 "in so far as they are applicable, all the provisions of the Election
Law are made effective as to the members of the Board and to their election to the same extent as if the City of Manila were
a province . . ." And each and every one of said vacancies may be immediately filled in the manner therein provided. and
therefore there can not be any interregnum during which the office may be temporarily without an incumbent.
7. ID; ID.; TEMPORARY DISABILITY OF MEMBER OF MUNICIPAL BOARD OF CITY OF MANILA; TEMPORARY APPOINTMENT BY
PRESIDENT WHEN IS AN OFFICE SAID TO BE VACANT. In case of sickness or absence, or if for any reason it becomes
necessary to maintain a quorum in that board, as in case of suspension or temporary disability of any member of the
Municipal Board of the City of Manila, section 16 (a) can not be applied, because no vacancy, temporary or otherwise, is
created thereby since the office is not without an incumbent, and because that contingency is covered by section 2349 of the
Administrative Code which is specially applicable to members of the Municipal Board of the City of Manila. In accordance with
said section, the Governor General (now the President) may make in such case a temporary appointment of a person "who
shall possess all the rights and perform all the duties of a member; of the Board" until the return to duty of the incumbent An
office is said to be vacant where there is no incumbent elected or appointed to hold it. "A temporary absence will not result in
a vacancy." Temporary "physical and mental disability of the incumbent of an elective office does not create a vacancy."
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8. ID., ID., ID., ID.; ID.; APPLICATION OF SECTION 16 (a) OF COMMONWEALTH ACT No. 357 TO "TEMPORARY VACANCY"
CONTEMPLATED IN OR IN CONNECTION WITH SECTIONS 16 (c) AND 16 (d). Even assuming that it was also the intention
of Congress to apply, though improperly, the words "temporary vacancy" used in section 16 (a) of Act No. 357, to cases of
sickness, absence, suspension or any other temporary disability of any member of provincial or municipal boards, it would
not exclude the application of said section 16 (a) to the proper "temporary vacancy" which may result from the delay in the
election or appointment of a successor of the incumbent of the previous term in the cases contemplated in the provisions of
subsections (c) and (d) of said section 16. To meet or provide for the interregnum or temporary vacancy during which no one
actually holds or could hold the office, said subsection (a) of section 16 empowers the President to appoint a person to fill
such temporary vacancy or interregnum, and the person so appointed shall hold the office until the permanent successor has
been elected or appointed in accordance with the provisions of said subsections (c) and (d) to fill the office for the unexpired
term, according to subsection (f) of said section 16 of Commonwealth Act No. 357. Election or appointment of a person to fill
a vacancy under subsections (b), (c), (d) and (e) for the unexpired term according to subsection (f), should not be confused
with the appointment under subsection (a) of a person to fill the temporary vacancy until the permanent incumbent for the
unexpired term has been elected or appointed in accordance with said subsections (c) and (d).
Per PERFECTO, J., concurring:

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9. "QUO WARRANTO." To obtain the remedy in this quo warranto case, petitioners must show. in the first place, that they
are entitled to the positions they are claiming as members of the Manila Municipal Board. (Section 6, Judicial Rule 68;
Lumontad v. Cuenco, 41 Off. Gaz., 894.)
10. NO ELECTIONS SINCE 1943. Since 1943, until respondents were appointed, no election, whether regular or special,
had taken place in Manila, and, therefore, no one can rightfully claim to have been elected to any position in the Municipal
Board of Manila.
11. TWO DIFFERENT THREE-YEAR TERMS. Petitioners were elected in 1940 for the three-year term of 1941-1943.

Respondents were appointed for a period belonging to the three-year term of 1944-1946. Both terms cannot be confused.
The first belongs to the past; the second, to the present. The past is dead. The present is alive. It is impossible to engraft the
dead in the living. Life and death are metaphysical opposites.
12. TERM OF OFFICE AND TENURE OF OFFICE. Term of office cannot be confused with tenure of office. The last may be
coetaneous with the first. It may be shorter or it may not take place at all. That fact does not change the duration of the
term of office.
13. SEPARATION FROM OFFICE. Petitioners alleged that they have not been legally removed or suspended, nor resigned or
abandoned their positions in the Municipal Board. Their term of office having expired, there was no office from which they
could be removed or suspended, or which may be the object of resignation or abandonment. Separation takes place whether
the occupant of an office, spontaneously or involuntarily, is separated therefrom, or the office, by its expiration, is removed
from the occupant.
14. ABANDONMENT BY ACCEPTANCE OF JAPANESE POSITIONS. By their acceptance of official positions under the
Japanese military administration in January, 1942, before the expiration of their term of office, petitioners vacated their
Commonwealth positions.
15. INCOMPATIBILITY. Continuance in official Commonwealth positions is incompatible with acceptance of positions from a
foreign government (46 C. J., 947; 22 R. C. L., 560).
16. CONSTITUTIONAL PROHIBITION. No person "holding any office of profit or trust shall, without the consent of the
Congress of the Philippines, accept any present, emolument, office, or title of any kind whatever from any foreign state."
(Art. III, section 1:9, Constitution of the Philippines.)
17. INCOMPATIBILITY EMPHASIZED. The incompatibility of petitioners former Commonwealth positions with those they
accepted from the Japanese military administration, is emphasized by the fact that Japan was an enemy.
18. COMMONWEALTH ACT No. 153. To implement the constitutional prohibition and make it effective by penal sanction,
the First National Assembly enacted Act No. 153.
19. ESSENTIAL CHARACTERISTICS OF DEMOCRACY. One of the essential characteristics of democracy is temporary tenure
of office for those officers who are more immediately called upon to expose, sponsor, or voice the peoples fresh aspirations
and developing policies, whether national or local.
20. HOLD-OVER ELIMINATED The hold-over provision in section 2439 of the Administrative Code was eliminated by section
6 of Act No. 2774. The hold-over provision in section 2074 of the Administrative Code was repealed by section 4 of the
Election Code enacted by the National Assembly.
21. POPULAR OPINION AGAINST HOLD-OVER. The general attitude of provincial and municipal officers elected in 1940 in
abstaining from occupying their former positions after liberation in 1945 is in accordance with a unanimous popular opinion
against the hold-over theory.
22. TOLERATION BY NECESSITY. In the absence of express statutory authority, hold-over is tolerated only in cases of
extreme necessity.
23. HOLD-OVER BY THE SECOND NATIONAL ASSEMBLY. To fill the legislative gap from November 15, 1941, when the term
of office of its members had to expire, to December 30, 1941, when Congress had to begin its existence, was for the Second
National Assembly a case of extreme, paramount, and insurmountable necessity.
24. EXAMPLE OF SECOND NATIONAL ASSEMBLY NOT A PRECEDENT. The example of the Second National Assembly is an
individual case which, by its exclusive peculiarities, cannot be taken as a precedent in support of the hold-over theory, it
having been the result of an express understanding at the time the constitutional amendments were approved and, later,
ratified by the people.
25. A FICTION. Hold-over is a fiction. It cannot have the contingent statute of hypothesis, resorted to by scientists to build
up and develop a theory. It cannot be raised to the category of a principle nor ranked with the simplest and most elemental
truth.
26. DORMANT VOLCANO. To give intimation that the hold-over theory can be elevated to the category of a judicial doctrine
is to place Philippine democracy on a dormant volcano which might erupt at any moment.
27. AMBITION FOR POWER. President Quezon said that ambition for power is one of the greatest urges in the human
heart. No one knew human nature better than the late Filipino national leader. Ambition for power knows no bounds.
28. PERPETUATION IN POWER. By the hold-over theory municipal and provincial officers, members of Congress and the
Chief Magistrate might be tempted to perpetuate themselves in power by the simple ruse of frustrating the holding of
elections.

DECISION

FERIA, J.:

This is an action of quo warranto instituted by the four petitioners against the six respondents to oust the latter from their
offices as members of the Municipal Board of the city of Manila on the ground that the petitioners are entitled to occupy and
respondents are illegally holding them.
Jose Topacio Nueno, Manuel de la Fuente, Eustaquio Balagtas and Carmen Planas and six others were elected in the general
election held on December 10, 1940, and qualified on January 1, 1941. Subsequently, Jose Topacio Nueno and Carmen
Planas resigned to run for seats in the House of Representatives in the national election held on November 14, 1941, but
they were not elected. After the election, the President of the Philippine Commonwealth appointed petitioner Nueno to fill the
vacancy created by his own resignation, and petitioner Delia C. Dio to fill the vacancy in the place of Carmen Planas, for the
last two belonged to the same political party, "The Young Philippines."
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On January 3, 1942, when the City of Manila was occupied by the Japanese Forces, the Commander in Chief of the Imperial
Japanese army proclaimed military administration under martial law over all districts occupied by the army, and in the
proclamation it was provided that "so far as military administration permits, all the laws now in force in the Commonwealth,
as well as executive and judicial institutions shall continue to be effective as in the past," and "all public officials shall remain
in their present posts and carry on faithfully their duties as before."
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By Order No. 1 of January 23, 1942, of the Commander in Chief of the Imperial Japanese army, a central administrative
organization or government under the name of Philippine Executive Commission was organized, and Jorge Vargas appointed
Chairman thereof, and the latter, in Executive Order No. 4, section 9 (b) of February 5, 1942, approve by the said
Commander in Chief, provided that "the provincial boards and the boards or councils of cities, municipalities and speciallyorganized local governments shall merely serve in an advisory capacity to their respective governor and mayors." Under the
so-called Republic of the Philippines inaugurated on October 14, 1943, no material change was introduced in so far as the
City of manila was concerned.
The regular election which, according to section 4 of Act No. 357 (Election Code), should have been have held on the second
Tuesday in December 1943 to elect the members of the Municipal Board of the City of Manila who were to assume office on
the first of January, 1944, could not be held for the city was still under the Japanese military occupation; and as the special
election provided for in section 16 (c) of said Act could not also be held after the re-occupation of the Philippines and the
restoration of the Commonwealth Government on February 27, 1945, due to physical impossibility, the President of the
Commonwealth appointed on July 18, 1945, the six respondents and four of those elected in December, 1940, as members of
the Board.
The four petitioners, Jose Topacio Nueno, Manuel de la Fuente, Eustaquio C. Balagtas and Delia C. Dio, instituted this action
against the six respondents, Gerardo Angeles, Agaton Evangelista, Andres Santa Maria, Vicente G. Cruz, Amado V.
Hernandez and Felicidad Manuel, on the ground that petitioners, having been elected as members of the Municipal Board of
Manila in the general election held in December, 1940, for three years, their term of office has not yet expired because they
have not served for three years completely due to the Japanese occupation, and besides, because they are entitled to holdover or continue in office until their successors are elected and qualified, and therefore respondents appointments are null
and void.
Attorney Nicolas V. Villaluz appeared to intervene in behalf of the political party "Young Philippines," and incidentally for the
petitioner Delia C. Dio, and claims that although the latter is not, under the law, entitled to holdover after the expired term
of the office of Carmen Planas (who resigned as above stated and in whose place she was appointed by the President), the
appointments of the respondents were in contravention of section 16 (b) of Act No. 357, because no one of the respondents
belongs to the "Young Philippines," whereas in the former Board there was one belonging to that political party, petitioner
Delia C. Dio; and besides, their appointments, not having been submitted to the Commission on appointments, became
ineffective from September 18, 1945, the day following the adjournment of the second special session of the Congress of the
Philippines.
The respondents, represented by the Fiscal of the City of Manila, contend that petitioners have no right to hold the public
offices claimed by them, because their term of office had already expired on December 31, 1943, and they are not entitled to
hold-over; that whether or not they have served completely for three years as members of the Municipal Board of Manila is
immaterial, for the term of office must be distinguished from the tenure of the incumbent; that as petitioners have no right
to institute the present action, this Court has no jurisdiction to proceed and inquire into the validity of respondents
appointments; and that the appointments of the respondents are legal and valid under the emergency powers granted by Act
No. 671 of the Congress of the Philippines upon the President of the Commonwealth.
The decision in this case depends upon whether or not, under the law, petitioners are entitled to hold-over as members of
the Municipal Board of the City of Manila, notwithstanding the expiration of their term of office on the last day of December

of the year 1943.

In view of the conclusion we have reached in this decision, we shall not discuss the sufficiency of the pleading filed by the
four petitioners who claim to be entitled to hold the offices now held by the six respondents. According to section 7 of Rule
68, an individual who files a complaint of quo warranto must set forth the name of the person who claims to be entitled to
the office and that of the defendant who is unlawfully in possession thereof, and those who claim to be entitled to the same
office may be made parties in order to determine their respective rights to the office in the same action. An individual can not
sue and oust two or more persons although the latter are holding illegally their respective offices, unless he is entitled to all
of them. Although this question has not been raised by the parties, we may rest our decision on that ground alone and
dismiss the action; for if we were to decide this case in favor of the petitioners, we would be at a loss how to determine
which of the six respondents should be ousted as holding illegally the four offices or places claimed by the four petitioners.
There is nothing in the record showing which of the six respondents occupy the four seats or offices formerly occupied by the
four petitioners. The record does not show the respective dates or seniority of the respondents appointments. But we want
to decide the case on its merits and not on technicalities, so as to avoid any other or further proceedings.
The contention that petitioners are entitled to continue in office because they have not completely served for three years due
to the war, is untenable, even assuming that they had not discharged the duties of their office during the Japanese
occupation of Manila. For the simple reason that the term of an office must be distinguished from the tenure of the
incumbent. The term means that the time during which the officer may claim to hold the office as of right, and fixes the
interval after which the several incumbents shall succeed one another. The tenure represents the term during which the
incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the
term for reasons within or beyond the power of the incumbent. There is no principle, law or doctrine by which the term of an
office may be extended by reason of war.
We shall, therefore, discuss and decide only the question of the petitioners right to hold-over and, consequently, the power
of the President to appoint their successors after the expiration of their term of office.
While there is authority to the contrary, the general trend of decisions of American courts is to adopt the common-law rule of
hold- over. The rule is, as enunciated in 46 Corpus Juris, 968, that "in the absence of an express or implied constitutional or
statutory provision to the contrary, an officer is entitled to hold his office until his successor is appointed or chosen and has
qualified." This enunciation of the rule is substantially the same as that in McQuillin, Municipal Corporations, Vol. II, second
ed., art. 307. The legislative intent not to permit holding over may therefore be express or implied in legislative acts.
In many states of the Union, the constitutions and statute expressly provide for the holding over of public officers until their
successors are elected or appointed and have qualified. (46 C.J., sec. 111, p. 969.)
Here in the Philippines, in enacting the provisions of the Revised Administrative Code relating to elective provincial officers,
members of the Municipal Board of the City of Manila and municipal officers in general, the Philippine Legislature was dealing
with the same or similar subject matter, and notwithstanding the trend of American decisions to adopt the common-law rule
of hold-over, recognized and applied by this Court to appointive officers in the case of Tayko v. Capistrano (53 Phil., 866), our
lawmakers have followed the policy and practice of those States that provide expressly in their statutes for holding over of
provincial, city and municipal officers, in the following provisions of the Revised Administrative Code, the pertinent part of
which we have underscored.
Section 2074 of the Revised Administrative Code (Provincial Law) provided:

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"Term of office of elective official. The term of a provincial officer elected at any general election commencing with the year
nineteen hundred and thirty-seven, shall begin on the sixteenth of July following such election and shall end on the fifteenth
of the same month three years thereafter; but if a successor be not inducted at the time appointed by law, the incumbent
shall hold-over until a successor shall be duly qualified."
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Section 2177 of the same Code (Municipal Law) read as follows:

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"Term of elective officer. The term of a municipal officer elected at any general election commencing with the year
nineteen hundred and thirty-seven, shall begin on the sixteenth of July following such election and shall end on the fifteenth
of the same month three years thereafter; but if a successor be not inducted at the time appointed by law, the incumbent
shall hold over until a successor shall e duly qualified."
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The original provision of section 2439 (Charter of the City of Manila) which provided "that the Municipal Board shall be the
legislative body of the city, and shall consist of ten elective members who shall hold office for four years or until their
successors are elected and qualified" was amended by Act No. 2774 so as to read: "The Municipal Board shall be the
legislative body of the City, and shall consist of ten elected members who shall hold office for three years." But the
suppression of the provision for holding over did not have any effect, since it was then a surplusage, because the second
paragraph of section 2440 provided among others the following:
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"Election for the members of the Board shall be held on the date of the general trienial election, and elected members shall
take office on the sixteenth day of October next following their election, upon qualifying, and shall hold office until their
successors are elected and qualified."
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From the express provision above quoted, it clearly appears that it was the intention of the Legislative, independent or
irrespective of the ruling of this Court in the above-cited case of Tayko v. Capistrano relating to appointive officers, to provide
expressly that the elective members of the Municipal Board of the City of Manila as well as elective provincial and municipal
officers in general, shall hold-over after the expiration of their terms until their successors shall be duly qualified. Such
provision was enacted to provide against all contingencies which might result from an office becoming for any period of time
vacant or without an incumbent.
Subsequently, the above-quoted provisions of sections 2974, 2177, and 2440 (second paragraph), were expressly repealed
by section 184 of Commonwealth Act No. 457. Section 4 of said act provides, in lieu of said provisions, that "on the second
Tuesday in December, nineteen hundred and forty, and upon the same day every three years thereafter, a regular election
shall be held to elect the officers who are to occupy all elective provincial, municipal and city offices throughout the
Philippines. The officers elected shall assume office on the first day of January next following." This repeal of all provisions for
holding over by the provincial, city and municipal elective officers by Commonwealth Act No. 357, and the enactment of
section 16 thereof which provides for the filling of all vacancies, temporary or otherwise, which might occur during and after
the expiration of a term of office, so as to avoid the necessity and even the occasion for holding over, clearly show the
manifest intention of Congress to suppress the hold-over. The very attorney who appeared for petitioner Delia C. Dio argued
in his brief and oral argument that the latter has no right under the law to hold-over, but is entitled to be reappointed in
accordance with section 16 (b) of Act No. 357.
The policy announced by the President of the Commonwealth in his message to Congress on June 9, 1945, that "the
provincial and municipal officers who were elected in 1940 should, as a general principle, be recalled to their respective
positions, thus giving due consideration to the will of the people as expressed at the polls, and only for strong reasons should
they be deprived of their privilege to serve," quoted in the dissenting opinion, cannot be invoked in support of the right to
hold-over. In the first place, because the message has not the force and effect of law and is therefore not a legislative
interpretation of the law; and secondly, because if any weight may be given to the policy in the decision of this case, it would
work against the alleged right to hold-over. If provincial and municipal officers are entitled by law to hold-over, they would
have the right to continue in office irrespective of any policy which the President may adopt, for the latter cannot deprive
them of said right. If the President has to recall and appoint them to their respective original positions pursuant to such
policy, it is because they are not entitled to hold-over.
Section 16, of Commonwealth Act No. 357 reads as follows:

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"Sec. 16. Vacancy in elective provincial or municipal office. (a) Whenever a temporary vacancy in any elective local office
occurs, the same shall be filled by appointment by the President if it is a provincial office, and by the provincial governor, with
the consent of the provincial board, if it is a municipal office.
"(b) Whenever in any elective local office a vacancy occurs as a result of the death, resignation, removal or cessation of the
incumbent, the President shall appoint thereto a suitable person belonging to the political party of the officer whom he is to
replace, save in the case of a mayor, which shall be filled by the vice-mayor.
"(c) Whenever the election for a local office fails to take place on the date fixed by law, or such election results in a failure to
elect, the President shall issue as soon as practicable, a proclamation calling a special election to fill said office.
"(d) When a local officer-elect dies before assumption of office, or, having been elected provincial or municipal officer, his
election is not confirmed by the President for disloyalty, or such officer- elect fails to qualify, for any reason, the President
may in his discretion either call a special election or fill the office by appointment.
"(e) In case a special election has been called and held and shall have resulted in a failure to elect, the President shall fill the
office by appointment.
"(f) The person appointed or elected to fill a vacancy in an elective provincial or municipal office shall hold the same for the
unexpired term of the office."
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The only vacancies which may possibly occur in elective provincial or municipal offices, as well as of the City of Manila, are
those provided for in the above-quoted provisions, and in section 2440 (e), applicable only to members of the Municipal
Board of the City of Manila, besides those enumerated in said section 16 which are not in conflict therewith, for according to
section 2440 (d) as amended by Act No. 233, "in so far as they are applicable, all the provisions of the Election Law are
made effective as to the members of the Board and to their election to the same extent as if the City of Manila were a
province . . ." And each and every one of said vacancies may be immediately filled in the manner therein provided, and
therefore there can not be any interregnum during which the office may b temporarily without an incumbent as we shall
show later on.
In case of sickness or absence, or if for any reason it becomes necessary to maintain a quorum in that Board, as in case of
suspension or temporary disability of any member of the Municipal Board of the City of Manila, section 16 (a) can not be
applied, because no vacancy, temporary or otherwise, is created thereby since the office is not without an incumbent, and
because that contingency is covered by section 2439 of the Administrative Code which is specially applicable to members of
the Municipal Board of the City of Manila. In accordance with said section, the Governor General (now the President) may
make in such case a temporary appointment of a person "who shall possess all the rights and perform all the duties of a
member of the Board" until the return to duty of the incumbent. An office is said to be vacant where there is no incumbent

elected or appointed to hold it. (46 C.J., 971.) "A temporary absence will not result in a vacancy." (Young v. Morris, 47 Okl.,
743.) Temporary "physical and mental disability of the incumbent of an elective office does not a create a vacancy." (46 C.J.,
973.)
But even assuming that it was also the intention of Congress to apply, though improperly, the words "temporary vacancy"
used in section 16 (a) of Act No. 357, to cases of sickness, absence, suspension or any other temporary disability of any
member of provincial or municipal boards, it would not exclude the application of said section 16 (a) to the proper
"temporary vacancy" which may result from the delay in the election or appointment of a successor of the incumbent of the
previous term in the cases contemplated in the provisions of subsections (c) and (d) of said section 16. Under these
provisions, whenever (1) the election fails to take place on the date fixed by law (as in the case at bar), or (2) results in a
failure to elect, or (3) the officer-elect dies before assumption of office, or (4) his election is not confirmed for disloyalty, or
(5) he fails to qualify for reason of noneligibility or other reasons, the successor to fill the vacancy shall be elected in a
special election, if the President does not exercise his discretion to fill the vacancy in the last three cases (3) (4) and (5) by
appointment. Now, as according to section 18 of the same Act No. 357, the said special election shall be called by the
President by proclamation for a date which shall not be earlier than thirty days nor later than ninety days from the date of
said proclamation, it is evident that from the first day of January, the beginning of the new term, to the election or
appointment and qualification of the successor elected in that special election, or appointed if the special election result in a
failure to elect, as provided in subsection (e), there would necessarily be an interregnum or temporary vacancy during which
no one actually holds or could hold the office. To meet or provide for such a contingency, said subsection (a) of section 16
empowers the President to appoint a person to fill such temporary vacancy or interregnum, and the person so appointed shall
hold the office until the permanent successor has been elected or appointed to fill the office for the unexpired term,
according to subsection (f) of said section 16 of Commonwealth Act No. 357. Election or appointment of a person to fill a
vacancy under subsections (b), (c), (d) and (e) for the unexpired term should not be confused with the appointment under
subsection (a) of a person to fill the temporary vacancy until the permanent incumbent for the unexpired term has been
elected or appointed (subsection [f]).
In addition to all the foregoing, we may add that petitioners Jose Topacio Nueno and Delia C. Dio can not claim the right to
hold-over as elective officers of the Municipal Board of Manila, because, as above stated, they held the office before the war
by appointment under subsection (b) to fill the vacancies caused by resignation of the elective incumbents, one of them the
same petitioner Nueno, and to hold the office for the unexpired term in accordance with subsection (f), section 16, of said
Commonwealth Act No. 357. And that petitioner Dios claim is based on the incorrect assumption that the respondents were
appointed under subsection (b) of said Act.
From the foregoing it clearly appears that petitioners are not entitled to hold-over, and after the expiration of their term of
office on December 31, 1943, the offices of members of the Municipal Board of Manila became vacant from January 1, 1944,
because of failure to hold the regular election on the second Tuesday of December 1943 and the special election, and
consequently to elect the would-be incumbents. And during the interregnum or temporary vacancy from January 1, 1944,
until the said special election is held and new members elected or, in case of failure to elect, appointed by the President
(under section 16 [c] and [d] of Commonwealth Act No. 357) the President had, under section 16 (a) of the same Act, the
power to appoint the respondents or any other, at his discretion, to fill said temporary vacancy or vacancies. As the
petitioners are not entitled to hold-over or continue, after the expiration of their term, in the offices claimed by them and
held now by the respondents, they have no right to bring the present action and impugn the validity of the latters
appointments, according to the provisions of section 6, rule 68, of the Rules of Court.
The record does not show whether the respondents were appointed by the President under section 16 (a) of Commonwealth
Act No. 357, or under the emergency powers granted him by Commonwealth Act No. 671 of the Congress of the Philippines
as contended by the City Fiscal, attorney for the respondents. But having arrived at the above conclusion, this Court does not
deem it necessary to decide whether or not the President had the authority to appoint the respondents by virtue of his
emergency powers; and whether or not the respondents appointments became ineffective from September 18, 1945, which
was the day following the adjournment of the Congress of the Philippines convened after their appointments, because the
latter had not been submitted to Congress or the Commission Appointments, as claimed by the attorney for respondent
Dio.
The action of quo warranto filed by the petitioners is therefore dismissed, with costs against them. So ordered.
Jaranilla, De Joya, Pablo, Bengzon, and Briones, JJ., concur.
Separate Opinions
PERFECTO, J., concurring:

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Petitioners Nueno, De la Fuente and Balagtas, with Carmen Planas and five others, were elected members of the Municipal
Board of Manila in the election held on December 10, 1940.
Planas and Nueno resigned and ran for Congress in the national election of November 14, 1941. Both failed. After the
election, President Quezon reinstated Nueno by appointment in his former position in the Municipal Board. The same
President appointed petitioner Dio in place of Planas.

Petitioners continued in office after the Japanese occupied Manila on January 2, 1042, and remained rendering services to
the Japanese military administration until February, 1942, when Commissioner of the Interior Benigno S. Aquino, under the
puppet Vargas Executive Commission, ordered the dissolution of the Municipal board and petitioners were given the positions
of advisers to the Mayor of Manila.
The regular election which should have taken place in December, 1943, to elect the new members of the Municipal Board for
the three- year term from January 1, 1944, to December 31, 1946, was not held due to the Japanese occupation.
The Commonwealth Government was re-established in Philippine territory in Leyte in October, 1944, and in Manila and the
whole Philippines only on February 27, 1945.
On July 18, 1945, President Osmea appointed respondents as members of the Municipal Board with others, four of whom
were elected in 1940 for the three-year term of 1941-1943. During the almost five months period of from February 27,
1945, when the Commonwealth Government was restored in Manila, until July 18, 1945, when respondents were appointed,
no one had been occupying any of the ten positions in the Municipal Board. They were vacant.
Petitioners complained that the Chief Executive appointed respondents "instead of recalling the petitioners," but it appeared
that the petitioners were then under investigation by the CIC, which fact precluded the President from appointing them, the
only way by which they could be recalled.
Petitioners seek the ouster of respondents and the declaration that:

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(a) The term of office of respondents has expired in accordance with the Constitution, because they were not acted upon by
the Commission on Appointments; and.
(b) The petitioners are "legally entitled to be recalled and reinstated to their former positions as members of the Municipal
Board" effective retroactively on February 27, 1945.
To obtain the remedy in this case, petitioners must show, in the first place, that they are entitled to the positions they are
claiming as members of the Municipal Board. (Section 6, Judicial Rule 68; Lumontad v. Cuenco, 41 Off. Gaz., 894.) .
According to law, the title to a position as member of the Municipal Board of Manila may be acquired only (a) by election,
regular or special, and (b) by presidential appointment.
It is evident that petitioners cannot claim title by election. To entitle them by election to occupy any of the positions to which
respondents were appointed, it is necessary that they should been elected in the regular election which should have taken
place in 1943 or, in default thereof, in any special election called by the President for the purpose. Since 1943, until
respondents were appointed, no election, whether regular or special, had taken place in Manila, and, therefore, no one can
rightfully claim to have elected to the positions in question.
The fact that the petitioners were elected in 1940 cannot be advanced as a reason for their claim. They were elected in 1940
only for the three-year term of 1941-1943, ending on December 31, 1943, which cannot be confused with the following other
three-year term of 1944-1946. The first belongs to the past; the second, to the present. The past is dead. The present is
alive. It is impossible to engraft the dead in the living. Life and death are metaphysical opposites. There is no possible
meeting between the two horns of the dilemma: to be or not to be. They are conclusively uninterchangeable.
The appointments made by President Quezon to petitioners Nueno and Dio had only the effect of filling the positions which
became vacant as a result of the resignations of the Nueno and Planas in the three-year term of 1941-1943. The effect of
said appointments cannot extend further, as President Quezon, when he issued the appointments, had not the power to fill
any position in the three-year term of 1944-1946; for, according to law, they should be filled by election and, only by its
failure, by appointment. When the appointments were issued, no one was in a position to say that no election could be held
to fill the positions in the three-year term of 1944-1946.
None of petitioners can claim title by appointment to any of the respondents positions, which belong to the three-year term
of 1944-1946.
Petitioners allege that their term of office has not expired because their successors have not been elected and qualified, and
that they have not served completely in their term of three years. The allegation is based on erroneous assumptions. The
term of office of petitioners was fixed by law, and it was limited to the three-year term of 1941-1943. Said three-year term is
fixed by law, regardless of whether or not election takes place to fill positions for the next succeeding three-year term of
1944-1946, or those elected fail to qualify.
Said term of office had nothing to do with the duration of the tenure of office of petitioners. The tenure of office may be
coetaneous with the three-year term, or shorter. The officer might even fail to occupy, for any length of time, the position to
which he is elected. That fact does not change the duration of the term of office. The causes of his failure to occupy the
position, whether the result of enemy occupation, death, sickness, resignation, etc., do not affect said duration.
Petitioners allege that they have not been legally removed or suspended, nor resigned or abandoned their positions in the
Municipal Board. Such facts are not necessary. The term of office having expired, there was no office from which they could

be removed or suspended, or which may be the object of resignation or abandonment. By the expiration of the term of office,
with respect to petitioners, it can be truthfully stated that their offices disappeared. At most, they left in the mind of men a
piece of history to remember. Separation takes place whether the occupant of an office, spontaneously or involuntarily, is
separated therefrom, or the office, by its expiration, is removed from the occupant.
Under the facts in this case, there is ground to declare that, before the expiration of their term of office, Petitioners, in fact,
by their acceptance of official positions under the Japanese military administration, resigned from or abandoned or vacated
their Commonwealth positions in January, 1942, because their positions under the Japanese Imperial Government, which
represent a foreign state Japan were incompatible with their positions under the Commonwealth of the Philippines.
(46 C.J., 947; 22 R. C.L., 560.) .
The incompatibility can be conclusively shown by the fact that our fundamental law provides: "No law granting a title of
nobility shall be enacted, and no person holding any office of profit or trust shall, without the consent of the Congress of the
Philippines, accept any present, emolument, office, or title of any kind whatever from any foreign state." (Art. III, section 1:
9, Constitution of the Philippines.) Consent of Congress in petitioners case was not shown nor alleged. It was impossible to
obtain it anyhow, because Congress could not convene during Japanese occupation. Japan, besides being a foreign state, was
an enemy, thus emphasizing further the incompatibility.
To implement this constitutional prohibition and make it effective by penal sanction, while we were a member of the First
National Assembly we drafted a bill which, later, was enacted into the present Commonwealth Act No. 153.
The theory of hold-over has been advanced to support petitioners claim to respondents positions in the three-year term of
1944-1946. The principle of democracy has been even invoked to maintain the proposition that petitioners, at least the three
who were elected in 1940, are entitled to occupy the positions in question until they are filled by those who may be elected in
the future.
The fact which seems to have been forgotten is that one of the essential characteristics of democracy is temporary tenure of
office for those officers who are more immediately called upon to expose, sponsor, or voice the peoples fresh aspirations and
developing policies, whether national or local, springing from the ever changing social and cultural conditions and new
political or economic outlooks or situations, resulting from scientific progress and the unquenchable thirstiness for
improvements in all orders of life and aiming at the ideal of human perfection.
On November 15, 1939, on the occasion of the laying of the cornerstone of the Jefferson Memorial at Washington, D.C., the
great President Franklin Delano Roosevelt, among other things, said:
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"But it was in the field of political philosophy that Jeffersons significance is transcendent.
"He lived as we live in the midst of a struggle between rule by the self-chosen individual or the self-appointed and rule by the
franchise and approval of the many. He believed as we do that the average opinion of mankind is in the long run superior to
the dictates of the self-chosen.
"During all the years that have followed Thomas Jefferson, the United States has expanded his philosophy into a greater
achievement or security of the Nation, security of the individual, and national unity than in any other part of the world.
"It may be that the conflict between the two forms of philosophy will continue for centuries to come, but we in the United
States are more than ever satisfied with the republican form of government based on regularly recurring opportunities to our
citizens to choose their leaders themselves."
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Besides, the provision of the Revised Administrative Code on hold-over, contained in section 2439, was eliminated by
amendment made by section 6 of Act No. 2774, approved by the Philippine Legislature which is an evident expression of the
legislative will not to allow said hold-over, in conformity with the following doctrines:
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"Under a statute creating an office, fixing the term, and making no provision for holding over until a successor is elected and
qualified, the term is definite and a vacancy exists upon its expiration." (State v. Windom, 131 Minn., 401; 155 N.W., 629.)
"When the duration of the term of office is specified in the statute, and an officer is elected to serve out the term, his power
and authority thereupon ipso facto cease, unless he is authorized by some specific provision of organic law to hold-over."
(Marcellus v. Wright, 61 Mont., 274; 202 Pac., p. 381.) "In all cases other than a vacancy occurring before the expiration of
the term of office, the vacancy, for the purpose of appointing a successor incumbent, is deemed to exist from the date of the
expiration of the term of office." (People v. Sohmer, 209 N.Y., 151; 102 N.E., 593; 46 L.R.A. [N.S. ], 1202.) .
"While the word vacancy as applied to an office is one which has no technical meaning, an office is vacant in the eye of the
law whenever it is unoccupied by a legally qualified incumbent who has a lawful right to continue therein until the happening
of some future event." (46 C.J., 971.)
When the Philippine Legislature, through the enactment of section 6 of Act No. 2774, amended section 2439 of the
Administrative Code, by eliminating thereof the hold-over provision concerning members of the Municipal Board of Manila, it
did not eliminate the hold-over provision in section 2974 of the Administrative Code respecting provincial elective officers.
But in 1937, for the sake of uniformity and consistency, when we wrote the text of the Election Code which we proposed to

be adopted by the National Assembly, we eliminated said hold-over provision of section 2074 of the Administrative Code. The
Election Code was passed as we drafted it. (See section 4 of Commonwealth Act No. 357, known as the Election Code.)
The fact that petitioners maintain that they are entitled to be recalled and reinstated, serves only to weaken the hold-over
theory. This means that they are not in actual possession of the offices in question. It means that they are not in actual
enjoyment of all the rights, privileges, and emoluments thereof. If they did not cease in the rightful possession of the offices,
why should they be recalled? If they are holding over their positions, what is the purpose of the reinstatement they claim?
The ideas of recall and reinstatement are incompatible with the hold-over theory. Hold-over involves in the idea of continuity.
Recall and reinstatement involve the idea of cessation, interruption, or severance from office.
Since the Commonwealth Government was restored in Manila on February 27, 1945, had the petitioners done anything
consistent with the hold-over theory? Did they occupy the positions in question? Did they attempt to occupy them? What
appears in the record is the contrary. From February 27, 1945, to July 18, 1945, they completely failed to occupy the offices
in question. It so happens that the mental attitude and conviction manifested by this abstention were not exclusive in the
petitioners. They were general among all other provincial and municipal officers elected in 1940 throughout the Philippines
for the same three-year term of 1941-1943. The fact shows conclusively a unanimous popular opinion against the hold-over
theory. This means that the hold-over provision was eliminated by the Philippine Legislature and the National Assembly so as
to express a well-crystallized public opinion, which is the strongest force behind legislative enactments, and to obey a
popular mandate.
It appears, furthermore, that petitioners advanced the hold-over theory only when they failed to be recalled, reinstated, or
appointed on July 18, 1945, making it a last minute strategy in a desperate attempt to save a losing proposition.
In fact, the idea of hold-over does not appear clearly enunciated in the petition, which contains only a timid and wavering
insinuation. Petitioners themselves, when they drafted the petition, failed to strike at the precise word "hold-over," which in
this case was used for the first time in respondents answer, filed one week after the petition. It was only in the long and able
memorandum they submitted where petitioners, taking advantage of the use of the word by respondents, seized the
opportunity to boldly advance their hold-over theory in an elaborate fashion and, although the memorandum is written in
Spanish, the English word "hold-over" used by respondents was retained, although hyphenized and underlined. The underline
serves to emphasize the foreign character in the Spanish memorandum of the untranslated original English word.
In the absence of express statutory authority, hold-over is tolerated only in cases of extreme, paramount, insurmountable
necessity. When public interest imperatively demands the performance of public functions, and there is no official duly
elected or appointed to perform the, it is expected that the officer who, during his term of office, had been performing them,
upon expiration of said term, should continue in their performance in a de facto capacity.
Such happened with the Second National Assembly. The terms of office of the members thereof would have ended on
November 15, 1941; but, in pursuance of an understanding had at the time the constitutional amendments were adopted,
they continued in office until December 29, 1941. With the extraordinary measures enacted by the Second National Assembly
in its special War Session of December, 1941, while Manila was being subjected to enemy aerial bombardment, the
Commonwealth Government was enabled to cope with the immediate problems caused by the unexpected outbreak of the
Pacific War. It would have been too late to wit for the meeting of the new Congress which, anyway, was not and could not be
convened and organized until after Liberation. By force of unprecedented circumstances, the Second national Assembly had
to fill the legislative gap from November 15 to December 29, 1941, and the trend of world events made it our War
Legislature. Many of our national postwar problems of today are being solved by governmental powers granted in its eventful
December special War Session.
It can be seen from this instance that extreme necessity may justify, in the public interest, the hold-over by officers whose
term of office has elapsed. National existence was in the balance. Our country was attacked and invaded by the ruthless
Nippon hordes. The National Government needed immediate legislative authority to adopt the measures demanded by the
emergency. The members of the Second National Assembly could not have hesitated to continue performing their legislative
functions and duties, although their term of office had expired, because no others were in a position to answer to the call of
the country for said special purpose.
But the case of the Second national Assembly must not and cannot be taken as a precedent in support of the hold-over
theory. The example cannot be elevated to the category of a rule. The individual case, characterized by its own exclusive
peculiarities, cannot be generalized. The Second National Assembly was the same legislative body which enacted the
amendments in the Constitution by which Congress was created to replace the National Assembly as the legislative power of
our government. When December 30, 1941, was fixed in the amendments as the day from which Congress should begin to
exist, we knew, as all the rest of our fellow members in the Second National Assembly knew, that there would be a legislative
gap to be filled from November 15, 1941, when our term of office was to end, to the day when congress should begin to have
existence. We knew then that the gap could not and should not remain unfilled, not only because the continuous existence of
an organ entrusted with the legislative power is of paramount importance and is indispensable, but for the clouds of war
were already hanging over our sky and at any moment the exercise of the legislative power might be urgently needed to face
any emergency which might endanger our national existence. So we decided, as a logical step, to have a clear understanding
to the effect that the Second National Assembly should be the one to fill the gap by hold-over. We deemed it unnecessary to
insert in the amendments any specific provision to said effect, considering that it was of temporary character, but the idea
was clearly and unmistakably stated in our deliberations, and when the amendments were submitted to the people for

ratification, the public was fully apprised of the matter which was publicly discussed, and made subject of talks in popular
meetings.
Hold-over is a fiction. For the purposes of this discussion, one may call it legal, if it suits ones literary taste. It will not
change its nature. It shall remain nonetheless as a fiction, a mere product of imagination, without any objective reality. It
can not even have the contingent statue of hypothesis, which is usually resorted to be scientists to build up and develop a
theory, to clarify an enigma of nature. Such hypothesis will often be he expression of an unknown reality, only waiting for the
scientific discovery or the miracle of invention, to be in full bloom in the field of human knowledge.
Hold-over, being a fiction, can not be raised to the category of a principle, can not be ranked with the simplest and most
elemental truth. Upon it, no legal theory can validly be evolved. To attempt it is to try to erect a palace on thin air. The futility
of the attempt is self-evident.
Let us be very careful not to give any intimation that we can elevate the hold-over theory to the category of a judicial
doctrine, lest we may have to face the danger of placing Philippine Democracy on a dormant volcano which might erupt at
any moment.
The safety of our democracy requires, among other things, that no ground or pretext be given by which elective officials
might entertain the hold-over idea. Once they are allowed to entertain in their minds that it is a valid theory that courts
might uphold, it will arouse the almost irresistible temptation for those who are coveting to remain in office by any means at
their command. Unfortunately, their number is not small. The ambition for power, as President Quezon more than once said,
is one of the greatest urges in the human heart. No one knew human nature better than the late Filipino national leader.
Municipal and provincial elective officers may do many things, even under color of legality, to cause the failure of the
elections in which their successors might be elected. Their power to obstruct the holding of elections or to cause their failure
is undeniable, because the law itself entrusted them with many important decisive official functions concerning the holding of
elections.
The hold-over theory might induce an unscrupulous majority in Congress to defeat the holding of elections, not necessarily
by making amendments in the Election Code, which they could do easily, but simply by refusing to appropriate the necessary
funds for the holding of national elections. Everybody knows that elections are so expensive. To save the money of the
people under stringent economic conditions, such as are prevailing nowadays, is a pretext which can be resorted to, under
the cover of a political gesture which will not be entirely lacking of popular appeal in some sectors of the electorate, where
there are many big taxpayers who are bent on opposing all Government expenditures for their effect in the corresponding
increase in taxes.
It is not necessary to mention the almost unlimited powers of the President to impede the holding of national elections. It is
enough to mention that he can veto the necessary appropriation or just suspend the election for reasons of public order. That
is the reason why the authors of our Constitution were careful enough to specify in unmistakable language the date of
expiration of the Presidents term of office, to preclude any doubt in everybodys mind that he will necessarily cease to hold
office on the day and hour fixed in the fundamental law.
The petitioners, not having shown that they are entitled to occupy the offices in question, lack the legal personality to
institute these quo warranto proceedings, following the doctrine laid down by this Court in the case of Lumontad v. Cuenco
(41 Off. Gaz., 894), one of the first cases decided after the liberation. The remaining points of controversy in this case are of
political nature, which must be submitted to the tribunal of the electorate, as we have stated in Custodio v. President of the
Senate (42 Off. Gaz., 1243), or are moot questions which it is not necessary for this Court to pass upon.
We vote for the denial of the petition without costs.
HILADO, J., dissenting:

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We dissent. As stated in the majority opinion, petitioners Jose Topacio Nueno, Manuel de la Fuente, and Eustaquio Balagtas,
together with Carmen Planas and six others, were elected members of the Municipal Board of the City of Manila in the
general elections of December 10, 1940, all of them qualifying on January 1, 1941. Thereafter, Jose Topacio Nueno and
Carmen Planas resigned to run for seats in the House of Representatives in the national elections held on November 14,
1941, but were defeated. After those elections, the President of the Philippines appointed petitioner Nueno to fill the vacancy
created by his own resignation, and petitioner Delia C. Dio to fill the vacancy left after the resignation of Carmen Planas,
these last two belonging to the same political party, "The Young Philippines."
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Petitioners were the lawful incumbents of their respective seats on the Municipal Board of the City of Manila when the Pacific
War broke out, and when, subsequently, the City of Manila was occupied by the invading Japanese forces, which occupation
took place on January 2, 1942.
On February 5, 1942, Jorge B. Vargas, who has been appointed by the Commander in Chief of the Imperial Japanese Army
Chairman of the Philippine Executive Commission, which has been organized by virtue of Order No. 1 of January 23, 1942, of
the same Commander in Chief, decreed that "the provincial boards and the boards or councils of cities, municipalities and
specially organized local governments shall merely serve in an advisory capacity to their respective governors and mayors."
From then on until the liberation and reestablishment of the Commonwealth Government, particularly of the city government

of Manila, the Municipal Board of said city could not and did not function as provided in the Constitution and laws of the
Commonwealth. The war and the consequent occupation of the city by the Japanese invades, and the setting up by them of
an entirely different governmental structure made it impossible for the Commonwealth Government in general, and the city
government of Manila in particular, to continue functioning as such under and pursuant to the Commonwealth Constitution
and laws. This fact was in the mind of President Osmea when he spoke in his message to the Filipino people, upon the day
of the Leyte landing, October 20, 1944 (41 Off. Gaz., 151), of the resumption of the "normal functions of civil government" in
the liberated areas, "the restoration of the democratic functions of government in the administration of the nation, the
provinces and the municipalities," and the reestablishment of the constitutional government "which existed here before Pearl
Harbor." The same fact was also recognized in the Joint Resolution of the United States Congress of June 29, 1944 (41 Off.
Gaz., 81) wherein it is said that "the Japanese are now in possession and control of the land, peoples, business,
communication, and institutions of the Commonwealth of the Philippines, and because of these circumstances the Filipino
people are denied the free use and employment of the processes and political institutions jointly established by the
Government of the United States and the Commonwealth of the Philippines for the transaction of private and public business
and for the maintenance of liberty, law and order, and justice in the Philippine Islands." (Italics supplied.) One of the
consequences of that interruption of the normal functions and processes of the Commonwealth government and its agencies,
was the impossibility of holding the election of the new members of the Municipal Board of Manila on the second Tuesday in
December, 1943, as provided in section 4 of the Election Code (Commonwealth Act No. 357).
A fact of official knowledge and judicial notice is, that although under section 3 (b) of the Election Code the term of office of
the members of the Second National Assembly was to terminate three years after the second Tuesday in November, 1938,
that is, November 15, 1941, said legislative body held over and continued to function, passing certain legislative measures of
an emergency character, significantly Commonwealth Act No. 671, up to a date nearing Christmas of 1941.
The fundamental question which arises from the foregoing facts is: Under the laws of the Commonwealth in force before the
war and before the City of Manila was occupied by the Japanese invaders, by virtue of which petitioners Jose Topacio Nueno,
Manuel de la Fuente, Eustaquio Balagtas, and Delia C. Dio were then holding office as members of the Municipal Board of
Manila, did said petitioners have the right to hold-over in case the next election for the same office should not take place on
the date fixed by law, or such election should result in a failure to elect, and while the President of the Commonwealth has
not issued a proclamation calling a special election to fill said office, and their successors are not duly elected and qualified?
We are of opinion that, under said circumstances, they possessed such right to hold-over. The general rule, solidly supported
by the weight of authority, and which we believe is the one more conducive to a maximum of governmental stability and
efficiency, is that, in the absence of an express constitutional or statutory provision to the contrary, public officers have the
right, as well as the duty, to continue in office under the principle of hold-over until their successors are duly elected or
appointed and qualified, unless there is a manifest implied intention in the Constitution or the laws to prohibit such hold-over.
Just as nature abhors a vacuum, the law abhors a vacancy in government. This is a legal maxim venerable by age,
unassailable because intrinsically sound. In justice to the Legislature, it should be presumed that it did not, in any act passed
by it, impliedly prohibit hold-over without concomitantly providing for a procedure or remedy by which to avoid the vacancy
which would otherwise result, for the simple reason that it would be against the public interest and general welfare to leave
any office in the government without an incumbent. That office has been created either by constitutional or by statutory
mandate because it was considered necessary for the efficient functioning of the government; and so long as such office is
not abolished, it would be unjust to assume that the Legislature would ever leave it vacant and its functions paralyzed, when
such vacancy and paralization can be avoided.
"In the absence of any constitutional or statutory regulation on the subject, the general rule is that an incumbent of an office
will hold-over after the conclusion of his term until the election and qualification of his successor." (Tayko v. Capistrano, 53
Phil., 866.)
"The principle frequently adopted by the American courts is that, in the absence of express provisions and unless the
legislative intent to the contrary is manifest, municipal officers hold-over until their successors are provided. The courts,
however, generally indulge in statute a condition which may result in an executive or administrative office becoming for any
period of time wholly vacant and unoccupied by one lawfully authorized to exercise its functions." (McQuillin, Municipal
Corporations, 2d ed., Vol. II, art. 507.)
We are entirely in agreement with the majority in that the deletion from section 2439 (a part of the Manila Charter) of the
Revised Administrative Code of the phrase "or until their successors are elected and qualified" by the amendment of said
section by Act No. 2774, could not imply a legislative intent to abolish the rule of hold-over, since that phrase would any way
be a mere surplusage if left to stand in said section, for the reason that the section immediately following, namely, section
2440, provides for hold-over for the members of the Municipal Board of Manila in these express words: "and shall hold office
until their successors are elected and qualified."
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It results, therefore, that the deletion of the aforesaid phrase from section 2439 of the Revised Administrative Code, as
amended by Act No. 2774, does not imply an intention much less a manifest intention on the part of the legislature to
prohibit the right of hold-over to the members of the Municipal Board of Manila.
The fact that the Second National Assembly held-over beyond November 15 until the holidays in the last week of December,
1941, would also clearly show that the members of said body considered the principle of hold-over as in force without need
of so expressly providing in the law. Their stand on the matter rule which we are applying in this dissent, and be it not
overlooked that the question of whether or not to adopt the principle of hold-over is one peculiarly within the province of the
lawmaking power.

On August 22, 1938, the First National Assembly approved the Election Code (Commonwealth Act No. 357). Sections 4 and
16 thereof provide:
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"SEC. 4. Regular elections for provincial and municipal offices. On the second Tuesday in December, nineteen hundred and
forty, and upon the same day every three years thereafter, a regular election shall be held to elect the officers who are to
occupy all elective provincial, municipal and city offices throughout the Philippines. The officers elected shall assume office on
the first day of January next following.
"SEC. 16. Vacancy in elective provincial or municipal office. (a) Whenever a temporary vacancy in any elective local office
occurs, the same shall be filled by appointment by the President if it is a provincial office, and by the provincial governor, with
the consent of the provincial board, if it is a municipal office.
"(b) Whenever in any elective local office a vacancy occurs as a result of the death, resignation, removal or cessation of the
incumbent, the President shall appoint thereto a suitable person belonging to the political party of the officer whom he is to
replace, save in the case of a mayor, which shall be filled by the vice-mayor.
"(c) Whenever the election for a local office fails t take place on the date fixed by law, or such election results in a failure to
elect, the President shall issue as soon as practicable, a proclamation calling a special election to fill said office.
"(d) When a local officer-elect dies before assumption of office, or, having been elected provincial or municipal officer, his
election is not confirmed by the President for disloyalty, or such officer- elect fails to qualify, for any reason, the President
may in his discretion either call a special election or fill the office by appointment.
"(e) In case a special election has been called and held and shall have resulted in a failure to elect, the President shall fill the
office by appointment.
"(f) The person appointed or elected to fill a vacancy in an elective provincial or municipal office shall hold the same for the
unexpired term of the office."
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Pursuant to section 4 of the Election Code, if the Pacific War had not broken out and the Philippines not been invaded by the
Japanese, a regular election would have been held, among others, for the purpose of electing the new members of the
Municipal Board of Manila on second Tuesday in December, 1943, but because of that war and of that invaders, that election
"failed to take place" in the words of paragraph (c) of section 16 of the same Code.
Section 4 of said Code, which provides that the officers elected in the regular elections on the second Tuesday in December
of every triennial shall assume office on the first day of January next following, if interpreted, as we think it should be, in
harmony with the principle that the law abhors a vacancy in government, would impose upon the actual incumbents the duty
and confer upon them the right to continue in office until their successors actually assume it in accordance with law. It is not
disputed in the case at bar that this latter event has not yet happened.
His Excellency, the President of the Commonwealth, in his first message to the First Congress of the Philippines, delivered on
June 9, 1945, said:
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"As I stated in Leyte, in praising the guerrillas we should not be forgetful of the loyal civilians who were left behind and, at
the risk of their lives, supported the resistance movement. Included among these civilians were those who, at the beginning
of the war, were civil service employees or holders of subordinate positions in the government, and who remained at their
post to protect the people and extend to them all possible aid and comfort. They should, as a general principle, be recalled as
soon as their services should be needed; only for strong reasons should they be deprived of their privilege to serve. This
policy applies as well to elected provincial and municipal officials who were chosen in the election of 1940, thus giving due
consideration to the will of the people as expressed at the polls." (Italics supplied.)
Petitioners herein were among the "municipal officials who were chosen in the elections of 1940." Under the facts of the
instant case, no implication from the quoted declarations of said message can be more logical than that the President
considered the principle of hold-over applicable to the public officials, particularly municipal officials, mentioned by him.
The foregoing quotation is made not because the message has the force and effect of law (see p. 25, majority decision) but
as showing the interpretation of the Chief Executive of what the law provides as regards the vital question of hold-over. It is
elementary that the construction placed upon the law by the executive department of the government is of great aid in its
proper interpretation. The majority also say that the said message "would work against the alleged right to hold-over," and
the following reasoning is given in support of this assertion: "If provincial and municipal officers are entitled by law to holdover, they would have the right to continue in office irrespective of any policy which the President may adopt, for the latter
cannot deprive them of said right. If the President has to recall and appoint them to their respective original positions
pursuant to such policy, it is because they are not entitled to hold- over." As we maintain toward the end of this dissent, our
opinion is that petitioners had and have the right to continue in office without need of Presidential appointment. We there
say: "in our opinion they (petitioners) legally retained their seats and needed no Presidential appointment." Their "recall" of
which the Presidents quoted message speaks, as we construe this message, is not equivalent to appointment, but merely to
a notice to them, and to other public officials similarly situated, that the Commonwealth Government, in general, and the
City Government of Manila, in particular, were ready to resume their functions, and that they should return to the respective

posts occupied by them immediately before the war.

The solution of the question here presented hinges on the proper construction and application of the pertinent precept of
section 16 of the Election Code. This section is obviously designed to guard against vacancies in elective provincial or
municipal offices preventing them, where possible, and in other cases, shortening their duration to a minimum; and this
the law has proposed to do in the manner determined in the various subsections of said section 16, according to the different
situations therein respectively provided for. Hence, we should interpret its provisions in that way which would carry out its
evident purpose. Let us consider, one by one, its deferent subsections, and see if any and which is applicable to the
case at bar.
"VACANCY. A place which is empty. The term is principal applied to cases where the office is not filled." (Vol. 3, Bouviers Law
Dictionary, 3d Revision, p. 3385.)
Subsection (a) refers to a temporary vacancy in an elective local office. In such case the office retains its incumbent, but the
incumbent is not actually exercising the functions of his office due to some temporary inability, incapacity or cause, e.g.
sickness, absence, suspension, or the like. The vacancy being temporary, the appointment by the President or the Provincial
Governor, as the case may be, necessarily has to be likewise temporary coeval with the vacancy itself. When the
temporary vacancy ceases by the return to office of the incumbent, the temporary substitute gives way to him (Rev. Adm.
Code, sec. 2439). This subsection provides a specific remedy for the specific case it deals with. This is clearly not the case of
a vacancy caused by the expiration of the incumbents term where there is no hold-over.
Evidently, the phrase "temporary vacancy" used by our legislators in section 16 (a) of the Election Code refers to a case
where the office has not lost its incumbent permanently so as to necessitate the election or appointment of a permanent
substitute. Undoubtedly, the Philippine National Assembly which enacted the Election Code had the legitimate power to use
this phrase and the word "vacancy" and to give them the meaning that they saw fit without being bound by technical
definitions of the same terms in other jurisdictions. If we were to give the term "vacancy" in said subsection the meaning
that the office is without an incumbent, then, in our opinion, the vacancy would no longer be temporary but permanent. As
we understand the provision, the lawmaker had to devise a phrase to denote the situation of an office having an incumbent
but who is unable to exercise or is not actually exercising its functions due to some temporary cause or reason.
Subsection (b) deals with the case of an elective local office which becomes vacant as a result of the death, resignation,
removal or cessation of the incumbent. It also provides the method of filling the vacancy therein referred to. In the very
nature of things, there can be no question of hold-over here, as the incumbent who dies, resigns, is removed or ceases,
cannot possess such a right. This is unquestionably not the case before us.
Subsection (c) speaks of the case where the election for a local office "fails to take place on the date fixed by law, or such
election results in a failure to elect." And it directs the procedure primarily to be followed "to fill said office", and it is this:

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". . . the President shall issue as soon as practicable, a proclamation calling a special election to fill said office."

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Secondarily, that is, in case such special election "has been called and held and shall have resulted in a failure to elect, the
President shall fill the office by appointment." (Subsection [e].)
Thus for the specific contingency spoken of in subsection (c) which is our case the law provides a special procedure for
the selection of the incumbents successor, viz., primarily, by a special election which shall be called "as soon as practicable"
by Presidential proclamation; and, secondarily (under subsection [e]), in case such special election has been called and held
and shall have resulted in a failure to elect, then by Presidential appointment.
The phrase "as soon as practicable" in said subsection (c), in our opinion, clearly indicates that the legislator foresaw the
possibility of delay in the issuance of the required Presidential proclamation or the holding of the special election, the
duration of which delay long or short he had no means of foretelling. But the legislator, of course, knew that in case of
such delay, whether short or long, the office would be left vacant if he should prohibit the incumbent from holding over in the
meantime. He has not expressly imposed this prohibition. As a general proposition, the country had nothing to gain and
everything to lose by such prohibition. Shall we imply that the law-maker intended it? We are not prepared to indulge such
legislature excluded the possibility of war being the cause of the delay when the Election Code was enacted the possibility
of another world war and its involving the Philippines was not at all out of the question. In the absence of a positive contrary
showing, we must presume that the representatives of the people in the legislature acted not only with foresight but with
farsightedness and wisdom, and accordingly intended against leaving the office vacant, pending the selection and
qualification of the incumbents successor according to the procedure which they were laying down.
As already pointed out, that selection could only be by Presidential appointment under subsection (e) in case the special
election required by subsection (c) has been called and held and has resulted in a failure to elect.
The majority are of opinion that under subsection (a) the President is authorized "to appoint a person or persons to fill the
temporary vacancy during the interregnum" (pp. 27, 28, majority decision), that is, during the "delay in the election or
appointment of the successor in cases contemplated in the provisions of subsections (c) and (d)" (p. 27, majority decision).
We cannot agree with this view. If there is no hold-over, as maintained by the majority, the vacancy created by the expiration
of the term - such expiration is understood in the case of subsection (c) is permanent and not temporary as in the case of
subsection (a). Hence, no appointment can be made in such a case under the authority of subsection (a). An appointment to

fill a permanent vacancy, in cases authorized by law, is necessarily permanent "for the unexpired term of the office," in the
words of subsection (f). We understand a vacancy to be permanent where the office permanently loses its incumbent by
some physical or legal reason of a permanent nature - such as expiration of the term, death, resignation, removal,
abandonment, permanent physical or mental disability, or the like. And, speaking concretely of a vacancy created by the
expiration of the term, to say that it may be filled by appointment, is to render impossible the special election provided for in
subsection (c), because under subsection (f) the appointee would in such case "hold the same (office) for the unexpired
term" (italic supplied), which in the same case could only refer to the next ensuing term.
Subsection (d) is concerned with the case of a local officer elect who dies before assumption of office, or, having been
elected provincial or municipal officer, his election is not confirmed by the President for disloyalty, or who fails to qualify, for
any reason. Admittedly, this is not our case.
Subsection (e) has already been considered in connection with subsection (c).
Subsection (f) merely provides that the person appointed or elected to fill a vacancy in an elective provincial or municipal
office shall hold the same for the unexpired term of the office. It clearly refers to a permanent vacancy. And referring, as it
does, to an elective provincial or municipal office, in case the next election for said office should fail to take place on the date
fixed by law, or should such election result in a failure to elect, then again subsection (c) would be brought into play, and if it
fails to secure an election, then subsection (e) will provide the remedy.
It is self-evident that if the person appointed or elected to fill a vacancy in an elective provincial or municipal office is to hold
the office "for the unexpired term", in the words of subsection (f) of section 16 of the Election Code, such appointment or
election is permanent, as contradistinguished from a temporary one. If so, said vacancy must of necessity be likewise
permanent it would be a contradiction in terms to say that a temporary vacancy is to be filled by a permanent
appointment or election. Hence, the appointment or election mentioned in said subsection (f) cannot refer to the case of
subsection (a), firstly, because the latter subsection speaks only of appointment and not election, and, secondly, because it is
concerned with a temporary vacancy. Therefore, subsection (f) can only relate to the cases of subsections (b), (c), (d), and
(e) is a permanent vacancy. Now, that vacancy is in the very nature of things permanent from its inception down to the end.
So that, in the specific case of subsection (c), for example, we cannot say that in one part of its duration the vacancy is
temporary, and in the remaining part it is permanent. If, then, there can be no temporary vacancy under subsection (c),
there can be temporary appointment in its case under the authority of subsection (a).
"162. Rule in Absence of Specific Provision. Apart from any constitutional or statutory regulation on the subject, there
seems to be a general rule that an incumbent of an office will hold-over after the conclusion of his term until the election and
qualification of a successor, and this, notwithstanding a provision rendering one elected to an office ineligible to succeed
himself." (43 Am. Jur., p. 20.)
"164. Operation and Effect of Authorization to Hold-Over. The purpose of provisions authorizing public officers to hold-over
is to prevent a hiatus in the government pending the time when a successor may be chosen and inducted into office. While
the authorities differ as to the effect of the provision, according to many authorities the effect of such provision is to add an
additional contingent and defeasible term to the original fixed term, and to prevent the happening of vacancies in office
except by death, resignation, removal, and the like. In other words, according to such authorities, there is no vacancy to be
filled by the appointing power. The period between the expiration of an officers term and the qualification of his successor is
as much a part of the incumbents term of office as the fixed constitutional or statutory period. This is true even where a
person is elected his own successor. While there is authority to the contrary, it has been ruled that one who holds-over until
his successor is qualified continues as the incumbent of the office although he has formally resigned and his resignation has
been accepted." (43 Am. Jur., pp. 21-22.) (Italics supplied.)
"A Mayor of a municipal corporation who has been regularly elected to the office is entitled to serve until his successor is
qualified; and while he continues to so serve on account of a failure to elect his successor, there is no vacancy in the office,
nor is the council authorized to make an appointment thereto." (State ex. rel. Bachman v. Wright, 56 Ohio St., 540; 47 N. E.,
569.)
"Where the constitution provides that sheriffs shall be elected at a general election and shall hold their office for a term of
three years beginning on the first Monday in January next after their election, and until their successor shall be duly
qualified and all vacancies not otherwise provided for shall be filled as provided for by law, the vacancies referred to are not
those occurring at the expiration of a regular term, since those are provided for by the phrase, until their successors shall be
duly qualified." (Com. ex rel. King v. King, 85 Pa., 103.)
"So, the provision of the Constitution that the duration of an office not fixed by the constitution should not exceed four years
does not preclude an officer whose term of office had expired from holding over beyond such period where his successor has
not been elected. (People ex rel. Madden v. Straton, 28 Cal., 44; People ex rel. Hinton v. Hammond, 66 Cal., 654; 6 Pac.,
741; People ex rel. Parsons v. Edwards, 93 Cal., 153; 28 Pac., 831; State ex rel. Carson v. Harrison, 113 Ind., 434; 3 Am. St.
Rep., 663; 16 N. E., 384.)"
As to the objection made in the majority opinion that there are only four petitioners but six respondents, we are of opinion
that said objection is not insurmountable. The four petitioners being, in our opinion, still entitled to the corresponding four
seats in the Municipal Board of Manila, those four seats were not vacant when the correlative appointments were made. Of
the ten persons named in paragraph 7 of the petition, as having been appointed by the President, Piedad Montenegro,

Valeriano Fugoso, Segundo Agustin and Pascual Santos, were among those elected to the Board in the general elections of
December 10, 1940, and in our opinion they legally retained their seats and needed no Presidential appointment. This leaves
six, namely, Gerardo Angeles, Agaton Evangelista, Andres Santamaria, Amado V. Hernandez, Felicidad Manuel, and Vicente
G. Cruz. Who should be ousted? Four of the six seats actually occupied by these six appointees legally belong, in our opinion,
to the four petitioners. Said four seats should be vacated. It would seem but just and logical that the last four of said six
appointees, in the order of their appointments or commissions, are the ones who should be ousted.
We conclude that the ouster of said last four appointees should be decreed, and that petitioners should be declared legally
entitled to occupy, and exercise all the powers and rights appertaining to, their office on the Municipal Board of Manila, and
to receive and enjoy its emoluments, and bound to comply with the corresponding duties.
MORAN, C.J., OZAETA, and PARAS, JJ., :

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