Chapter 13: CONSTITUTIONAL COMMISSIONS

1. Read: Art. IX, 1987 Constitution

2. Digest the following cases:
A. The Civil Service Commission
1. UP v. Regino, 221 SCRA 598
2. Tupas v. NHC, 173 SCRA 33
3. Juco v. NLRC, G.R. No. 98107, Aug. 19, 1997
4. Hilario v. CSC, 243 SCRA 206
5. Pagcor v. Rilloraza, G.R. No. 141141, June 25, 2001
6. Besa v. PNB, 33 SCRA 330
7. Dario v. Mison, 176 SCRA 84
8. De la Llana v. Alba, 112 SCRA 294
9. Palma-Fernandez v. Dela Paz, 160 SCRA 751
10. Santos v. Yatco, 106 Phil. 745
11. Cailles v. Bonifacio, 65 Phil. 328
12. SSS Employees Association v. CA, 175 SCRA 686
13. Bangalisan v. CA, G.R. No. 124678, July 23, 1997
14. Intia v. COA, G.R. No. 131529, April 30, 1999
15. Quimzon v. Ozaeta, 98 Phil. 705
16. Santos v. CA, G.R. No. 139792, Nov. 22, 2000
B. The Commission on Elections
17. Cayetano v. Monsod, G.R. No. 100113, Sept. 3, 1991
18. Brilliantes v. Yorac, 192 SCRA 358
19. Gallardo v. Judge Tabamo, 218 SCRA 253
20. LDP v. COMELEC, G.R. No. 161265, Feb. 24, 2004
21. Alunan v. Mirasol, G.R. No. 122250, July 21, 1997
22. Javier v. COMELEC, 144 SCRA 194
23. Aquino v. COMELEC, 248 SCRA 400
24. Cawasa v. COMELEC, G.R. No. 150469
25. Guevara v. COMELEC, 104 Phil. 269
26. De Jesus v. People, 120 SCRA 760
27. COMELEC v. Silva, 286 SCRA 177
28. Loong v. COMELEC, G.R. No. 160427, Sept. 15, 2004
29. Sambrani v. COMELEC, G.R. No. 160427, Sept. 15, 2004
C. The Commission on Audit
30. Orocio v. COA, 213 SCRA 109
31. Gonzales v. Provincial Board of Iloilo, 12 SCRA 711
32. Guevara v. Jimenez, 6 SCRA 813
33. Feliciano v. COA, G.R. No. 147402, Jan. 14, 2004

Page 1 of 492

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 88167 May 3, 1993

UNIVERSITY OF THE PHILIPPINES and UP SCHOOL OF ECONOMICS, petitioners,
vs.
THE HON. TEODORO P. REGINO, Presiding Judge, RTC, Br. 84 NATIONAL CAPITAL REGION, Q.C.,
ANGEL PAMPLINA, and The CIVIL SERVICE COMMISSION, respondents.
The Solicitor General for petitioner.
Araullo, Zambrano, Gruba, Chua Law Firm for private respondent.

CRUZ, J.:
Private respondent Angel Pamplina, a mimeograph operator at the University of the Philippines School of
Economics, was dismissed on June 22, 1982, after he was found guilty of dishonesty and grave misconduct
for causing the leakage of final examination questions in Economics 106 under Prof. Solita Monsod. 1
His appeal was denied by the UP Board of Regents, prompting him to seek relief from the Merit Systems
Board (MSB), created under Presidential Decree No. 1409. Under Section 5(l) thereof, the MSB has the
power to "hear and decide administrative cases involving officers and employees of the civil service."
The University of the Philippines filed a motion to dismiss for lack of jurisdiction on the part of the MSB. UP
relied heavily on the case of University of the Philippines vs. Court of Appeals, 2 where it was held that
administrative matters involving the discipline of UP employees properly fall under the Jurisdiction of the
state university and the UP Board of Regents.
The motion was denied. Thereafter, in its decision dated July 5, 1985, the MSB exonerated Pamplina and
ordered his reinstatement with back wages. 3 UP, represented by its Office of Legal Services, moved for
reconsideration, but this was denied on January l0, 1986.
UP then appealed to the Civil Service Commission, which on November 4, 1987, issued Resolution No. 87428, sustaining the MSB. 4 The motion for reconsideration was denied on April 13, 1988.
On June 10, 1988, the petitioners, through their new counsel of record, the Office of the Solicitor General
(OSG), filed a second motion for reconsideration. This was also denied on August 31, 1988, on the basis of
Section 39(b) of PD 807, providing in part that "only one petition for reconsideration shall be entertained" by
the Civil Service Commission.
Pamplina filed a "Manifestation and Motion for Execution of Judgment" of the Commission, copy of which
was received by the Office of the Solicitor General on October 4, 1988. 5 This was opposed by the
Page 2 of 492

petitioners, but in an order dated November 7, 1988, the Commission granted the motion. Nevertheless,
Pamplina was still not reinstated. UP claimed that the resolutions of the Commission had not yet become
final and executory.
Pamplina's reaction was to file a petition for a writ of mandamus on November 11, 1988. Judge Teodoro P.
Regino of the Regional Trial Court of Quezon City granted the petition on April 27, 1989. The respondents
(herein petitioners) were ordered to immediately reinstate Pamplina "to his former position as mimeograph
operator without change of status as permanent employee with back wages from June 22, 1982, up to his
reinstatement, plus salaries for the period of his preventive suspension covering December 15, 1981 to
March 15, 1982." 6
On June 19, 1989, the present petition for certiorari was filed with this Court to seek the annulment of the
decision of the trial court and the orders of the Commission directing the reinstatement of Pamplina. The
petitioners also pray that the decision of the UP President and Board of Regents ordering Pamplina's
dismissal be upheld.
UP contends that under its charter, to wit, Act 1870, enacted on June 18, 1906, it enjoys not only academic
freedom but also institutional autonomy. Section 6(e) of the said Act grants the UP Board of Regents the
power "to appoint, on recommendation of the president of the university, professors, instructors, lecturers,
and other employees of the university, to fix their compensation and to remove them for cause after an
investigation and hearing shall have been had." Pamplina was dismissed by virtue of this provision.
The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative
disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the Commission shall
have the power to "hear and decide administrative disciplinary cases instituted directly with it in accordance
with Section 37 or brought to it on appeal." And Section 37(a), provides that, "The Commission shall
decide upon appeal all administrative disciplinary cases involving the imposititon of a penalty of suspension
for more than thirty (30) days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary
or transfer, removal or dismissal from office." (Emphasis supplied)
Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of
their creation, were considered part of the Civil Service. 7 Under the 1967 Constitution only governmentowned or controlled corporations with original charters fall within the scope of the Civil Service pursuant to
Article IX-B, Section 2(l), which states:
The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the
government, including government-owned or controlled corporations with original charters.
As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service under the
1973 Constitution and now continues to be so because it was created by a special law and has an original
charter. As a component of the Civil Service, UP is therefore governed by PD 607 and administrative cases
involving the discipline of its employees come under the appellate jurisdiction of the Civil Service
Commission.
Coming now to the petition itself, we note that the petitioners received a copy of the resolution denying their
motion for reconsideration on April 22, 1968.
In Article IX-A, Section 7, of the 1987 Constitution, which was already in effect at that time, it is provided
that:

Page 3 of 492

. . . 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.
This provision was reproduced almost verbatim in Section 28 of the Administrative Code of 1987.
The petitioners therefore had thirty days from April 22, 1988, or until May 22, 1988, within which to elevate
their case to this Court. They did not do so and instead filed a second motion for reconsideration, which was
not allowed under Article IX, Section 39(b) of PD 807. On top of this, the second motion for reconsideration
was filed only on June 10, 1988, or 19 days beyond the 30-day reglementary period. 8
In this connection, it is stressed that where a motion for reconsideration of a decision, order or ruling of any
Constitutional Commission is denied, the 30-day reglementary period does not begin anew. The petitioner
has only the balance of that period (after deducting the time elapsed before the motion was filed) to come to
this Court on certiorari.
The assailed orders having become final and executory, Pamplina had every right to seek mandamus to
compel their execution. Respondent Judge Regino was quite correct when he issued the questioned writ.
The case cited repeatedly by the petitioners, viz., University of the Philippines vs. Court of Appeals, 9 cannot
apply to the present controversy. The reason is that at the time it was promulgated on January 28, 1971, PD
807 had not yet been enacted. PD 807 took affect only in 1975.
In ruling in that case "that the President and Board of Regents of the University of the Philippines possess
full and final authority in the disciplining, suspension and removal of the civil service employees of the
University, including those of the Philippine General Hospital, independently of the Commissioner of Civil
Service and the Civil Service Board of Appeals," Justice J.B.L. Reyes relied on the Civil Service Law of
1959, which then empowered the Civil Service Commission:
Except as otherwise provided by law, to have final authority to pass upon the removal,
separation and suspension of all permanent officers and employees in the competitive or
classified service and upon all matters relating to the conduct, discipline, and efficiency of
such officers and employees; and to prebcribe standards, guidelines and regulations
governing the administration of discipline; (Emphasis supplied)
Article V, Section 9(j), of PD 807 simply gives the Commission the power to "har and decide administrative
disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal," without
the qualifiying phrase appearing in the above-quoted provision. The petitioners cannot invoke that phrase to
justify the special power they claim under Act 1870.
WHEREFORE, the instant petition for certiorari is DISMISSED and the assailed decision of respondent
Judge Teodoro P. Regino dated April 27, 1989, and the challenged orders of the Civil Service Commission,
are AFIRMED, with costs against the petitioners. It is so ordered.
Narvasa, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and
Quiason, JJ., concur.
Romero, J., took no part.

Page 4 of 492

# Footnotes
1 Decision of UP President Edgardo J. Angara dated June 22, 1982, Rollo, pp. 30-31.
2 37 SCRA 64.
3 Rollo, 88-94. Decision penned by Commissioner Alfredo B. Deza with the concurrence of
Commissioners Villones and Amilhasan.
4 Rollo, pp. 119-124. Resolution penned by Commissioner Celerino G. Gotladera with the
concurrence of Commissioners Yangco and Deza.
5 Rollo, p. 202.
6 Ibid., 190-195.
7 Article XII-B, Section 1(1).
8 Rollo, p. 171.
9 Supra.

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EN BANC
[G.R. No. 49677. May 4, 1989.]
TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES, Petitioner, v.
NATIONAL HOUSING CORPORATION and ATTY. VIRGILIO SY, as Officer-in-Charge of
the Bureau of Labor Relations, Respondents.
The Government Corporate Counsel for respondent NHC.
Raul E. Espinosa for intervenor PACIWU.
SYLLABUS
1. ADMINISTRATIVE LAW; ONLY GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS
WITH ORIGINAL OR LEGISLATIVE CHARTERS, NOW COVERED BY THE CIVIL SERVICE. The
civil service now covers only government-owned or controlled corporations with original or
legislative charters, that is those created by an act of Congress or by special law, and not
those incorporated under and pursuant to a general legislation. The situations sought to be
avoided by the 1973 Constitution and expressed by this Court in the National Housing
Corporation case . . . appear relegated to relative insignificance by the 1987 Constitutional
provision that the Civil Service embraces government-owned or controlled corporations with
original charters and therefore, by clear implication, the Civil Service does not include
government-owned or controlled corporations which are organized as subsidiaries of
government-owned or controlled corporations under the general corporation law."cralaw
virtua1aw library
2. LABOR LAW; UNIONS OR EMPLOYEES ORGANIZATION; RIGHT TO FORM RECOGNIZED AND
GRANTED TO EMPLOYEES IN BOTH THE GOVERNMENTAL AND THE PRIVATE SECTORS. The
workers or employees of NHC undoubtedly have the right to form unions or employees
organizations. The right to unionize or to form organizations is now explicitly recognized and
granted to employees in both the governmental and the private sectors. The Bill of Rights
provides that" (t)he right of the people, including those employed in the public and private
sectors, to form unions, associations or societies for purposes not contrary to law shall not be
abridged." This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on
Social Justice and Human Rights, which mandates that the State "shall guarantee the rights of
all workers to self-organization, collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law. . . ."cralaw virtua1aw library
3. ID.; ID.; RIGHT OF GOVERNMENT EMPLOYEES TO UNIONIZE. Specifically with respect to
government employees, the right to unionize is recognized in Paragraph (5), Section 2, Article
IX B which provides that" (t)he right to self-organization shall not be denied to government
employees."cralaw virtua1aw library
4. ID.; NATIONAL HOUSING CORPORATION; BEING A GOVERNMENT-OWNED AND/OR
CONTROLLED CORPORATION WITHOUT AN ORIGINAL CHARTER, HOLDING OF A
CERTIFICATION ELECTION AMONG ITS WORKERS, WITHOUT IMPEDIMENT. There is,

Page 6 of 492

therefore, no impediment to the holding of a certification election among the workers of NHC
for it is clear that they are covered by the Labor Code, the NHC being a government-owned
and or controlled corporation without an original charter Statutory implementation of the lastcited section of the Constitution is found in Article 244 of the Labor Code, as amended by
Executive Order No. 111.
5. ID.; CERTIFICATION ELECTIONS; DISTINCTION BETWEEN THE TWO TYPES OF
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS RENDERED ACADEMIC BY
SUBSEQUENT STATUTORY DEVELOPMENTS. The records do not show that supervening
factual events have mooted the present action. It is meet, however, to also call attention to
the fact that, insofar as certification elections are concerned, subsequent statutory
developments have rendered academic even the distinction between the two types of
government-owned or controlled corporations and the laws governing employment relations
therein, as hereinbefore discussed. For, whether the employees of NHC are covered by the
Labor Code or by the civil service laws, a certification election may be conducted.
6. ID.; DETERMINATION OF THE EXCLUSIVE BARGAINING REPRESENTATIVE AMONG
EMPLOYEES IN CORPORATIONS AND ENTITIES COVERED BY THE LABOR CODE. For
employees in corporations and entities covered by the Labor Code, the determination of the
exclusive bargaining representative is particularly governed by Articles 255 to 259 of said
Code. Article 256 provides for the procedure when there is a representation issue in organized
establishments, while Article 257 covers unorganized establishments. These Labor Code
provisions are fleshed out by Rules V to VII, Book V of the Omnibus Implementing Rules.
7. ID.; EMPLOYEES COVERED BY THE CIVIL SERVICE LAWS; GUIDELINES FOR THE EXERCISE
OF THEIR RIGHT TO ORGANIZE COVERED UNDER EXECUTIVE ORDER NO. 180. With
respect to other civil servants, that is, employees of all branches, subdivisions,
instrumentalities and agencies of the government including government-owned or controlled
corporations with original charters and who are, therefore, covered by the civil service laws,
the guidelines for the exercise of their right to organize is provided for under Executive Order
No. 180. Chapter IV thereof, consisting of Sections 9 to 12, regulates the determination of the
"sole and exclusive employees representative."
DECISION
REGALADO, J.:
The employees of the public sector comprise the largest bloc of workers in our national work
force. Governmental bureaucracy is continually being reorganized to cope with the growing
complexity of the problems and needs of political and administrative governance. As the
increase in the number of government employees grows apace, the need to enhance their
welfare correspondingly becomes more imperative. While it may be assumed that the
Government is exerting efforts to advance the interests of its employees, it is quite
understandable that the employees themselves should actively seek arrangements whereby
they can participate more meaningfully in management and employment relationships. There
is, thus, a proliferation of unions or employees organizations, each seeking concomitant

Page 7 of 492

representational recognition.
The antecedent facts which led to the filing of this special civil action for certiorari are clear
and undisputed. The juridical status and relevant circumstances of respondent corporation
have been established in a case of illegal dismissal filed against it, as previously decided by
the Court and hereinafter discussed. However, submitted this time for Our resolution is a
controversy on the propriety of and requirements for certification elections in governmentowned or controlled corporations like the Respondent.
Respondent National Housing Corporation (hereinafter referred to as NHC) is a corporation
organized in 1959 in accordance with Executive Order No. 399, otherwise known as the
Uniform Charter of Government Corporations, dated January 1, 1951. Its shares of stock are
and have been one hundred percent (100%) owned by the Government from its incorporation
under Act 459, the former corporation law. The government entities that own its shares of
stock are the Government Service Insurance System, the Social Security System, the
Development Bank of the Philippines, the National Investment and Development Corporation
and the Peoples Homesite and Housing Corporation. 1 Petitioner Trade Unions of the
Philippines and Allied Services (TUPAS, for brevity) is a legitimate labor organization with a
chapter in NHC.chanrobles.com : virtual law library
On July 13, 1977, TUPAS filed a petition for the conduct of a certification election with
Regional Office No. IV of the Department of Labor in order to determine the exclusive
bargaining representative of the workers in NHC. It was claimed that its members comprised
the majority of the employees of the corporation. 2 The petition was dismissed by med-arbiter
Eusebio M. Jimenez in an order, dated November 7, 1977, holding that NHC "being a
government-owned and or controlled corporation its employees/workers are prohibited to
form, join or assist any labor organization for purposes of collective bargaining pursuant to
Section 1, Rule II, Book V of the Rules and Regulations Implementing the Labor Code." 3
From this order of dismissal, TUPAS appealed to the Bureau of Labor Relations 4 where, acting
thereon in BLR Case No. A-984-77 (RO4-MED-1090-77), Director Carmelo C. Noriel reversed
the order of dismissal and ordered the holding of a certification election. 5 This order was,
however, set aside by Officer-in-Charge Virgilio S.J. Sy in his resolution of November 21, 1978
6 upon a motion for reconsideration of respondent NHC.
In the instant petition for certiorari, TUPAS seeks the reversal of the said resolution and prays
that a certification election be held among the rank and file employees of NHC.
In retrospect, it will be recalled that in a former case of illegal dismissal involving the same
respondent corporation, 7 We had ruled that the employees of NHC and of other government
owned or controlled corporations were governed by civil service laws, rules and regulations
pursuant to the 1973 Constitution which provided that "the civil service embraces every
branch, agency, subdivision and instrumentality of the government, including governmentowned or controlled corporations." 8
It was therein stressed that to allow subsidiary corporations to be excluded from the civil
service laws would be to permit the circumvention or emasculation of the above-quoted
constitutional provision. As perceptively analyzed therein," (i)t would be possible for a regular
ministry of government to create a host of subsidiary corporations under the Corporation Code

Page 8 of 492

funded by a willing legislature. A government-owned corporation could create several

subsidiary corporations. These subsidiary corporations would enjoy the best of two worlds.
Their officials and employees would be privileged individuals, free from the strict accountability
required by the Civil Service Decree and the regulations of the Commission on Audit. Their
incomes would not be subject to the competitive restraints of the open market nor to the
terms and conditions of civil service employment." chanrobles law library : red
The rule, however, was modified in the 1987 Constitution, the corresponding provision
whereof declares that" (t)he civil service embraces all branches, subdivisions, instrumentalities
and agencies of the government, including government-owned or controlled corporations with
original charters." 9
Consequently, the civil service now covers only government-owned or controlled corporations
with original or legislative charters, that is those created by an act of Congress or by special
law, and not those incorporated under and pursuant to a general legislation. As We recently
held
". . ., the situations sought to be avoided by the 1973 Constitution and expressed by this
Court in the National Housing Corporation case . . . appear relegated to relative insignificance
by the 1987 Constitutional provision that the Civil Service embraces government-owned or
controlled corporations with original charters and therefore, by clear implication, the Civil
Service does not include government-owned or controlled corporations which are organized as
subsidiaries of government-owned or controlled corporations under the general corporation
law." 10
While the aforecited cases sought different reliefs, that is, reinstatement consequent to illegal
dismissal, the same lis mota determinative of the present special civil action was involved
therein.chanrobles virtual lawlibrary
The workers or employees of NHC undoubtedly have the right to form unions or employees
organizations. The right to unionize or to form organizations is now explicitly recognized and
granted to employees in both the governmental and the private sectors. The Bill of Rights
provides that" (t)he right of the people, including those employed in the public and private
sectors, to form unions, associations or societies for purposes not contrary to law shall not be
abridged." 11
This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on Social
Justice and Human Rights, which mandates that the State "shall guarantee the rights of all
workers to self-organization, collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law. . . ."cralaw virtua1aw library
Specifically with respect to government employees, the right to unionize is recognized in
Paragraph (5), Section 2, Article IX B 12 which provides that" (t)he right to self-organization
shall not be denied to government employees." The rationale of and justification for this
innovation which found expression in the aforesaid provision was explained by its proponents,
as follows:jgc:chanrobles.com.ph
". . . The government is in a sense the repository of the national sovereignty and, in that
respect, it must be held in reverence if not in awe. It symbolizes the unity of the nation, but it

Page 9 of 492

does perform a mundane task as well. It is an employer in every sense of the word except
that terms and conditions of work are set forth through a Civil Service Commission. The
government is the biggest employer in the Philippines. There is an employer-employee
relationship and we all know that the accumulated grievances of several decades are now
beginning to explode in our faces among government workers who feel that the rights afforded
by the Labor Code, for example, to workers in the private sector have been effectively denied
to workers in government in what looks like a grotesque, (sic) a caricature of the equal
protection of the laws. For example, . . . there were many occasions under the old government
when wages and cost of living allowances were granted to workers in the private sector but
denied to workers in the government for some reason or another, and the government did not
even state the reasons why. The government employees were being discriminated against. As
a general rule, the majority of the worlds countries now entertain public service unions. What
they really add up to is that the employees of the government form their own association.
Generally, they do not bargain for wages because these are fixed in the budget but they do
acquire a forum where, among other things, professional and self-development is (sic)
promoted and encouraged. They also act as watchdogs of their own bosses so that when graft
and corruption is committed, generally, it is the unions who are no longer afraid by virtue of
the armor of self-organization that become the publics own allies for detecting graft and
corruption and for exposing it. . . ." 13
There is, therefore, no impediment to the holding of a certification election among the workers
of NHC for it is clear that they are covered by the Labor Code, the NHC being a governmentowned and or controlled corporation without an original charter Statutory implementation of
the last-cited section of the Constitution is found in Article 244 of the Labor Code, as amended
by Executive Order No. 111, thus:chanrobles virtual lawlibrary
"Right of employees in the public service. Employees of the government corporations
established under the Corporation Code shall have the right to organize and to bargain
collectively with their respective employers. All other employees in the civil service shall have
the right to form associations for purposes not contrary to law."cralaw virtua1aw library
The records do not show that supervening factual events have mooted the present action. It is
meet, however, to also call attention to the fact that, insofar as certification elections are
concerned, subsequent statutory developments have rendered academic even the distinction
between the two types of government-owned or controlled corporations and the laws
governing employment relations therein, as hereinbefore discussed. For, whether the
employees of NHC are covered by the Labor Code or by the civil service laws, a certification
election may be conducted.
For employees in corporations and entities covered by the Labor Code, the determination of
the exclusive bargaining representative is particularly governed by Articles 255 to 259 of said
Code. Article 256 provides for the procedure when there is a representation issue in organized
establishments, while Article 257 covers unorganized establishments. These Labor Code
provisions are fleshed out by Rules V to VII, Book V of the Omnibus Implementing
Rules.chanrobles law library
With respect to other civil servants, that is, employees of all branches, subdivisions,
instrumentalities and agencies of the government including government-owned or controlled
corporations with original charters and who are, therefore, covered by the civil service laws,

Page 10 of 492

the guidelines for the exercise of their right to organize is provided for under Executive Order
No. 180. Chapter IV thereof, consisting of Sections 9 to 12, regulates the determination of the
"sole and exclusive employees representative." Under Section 12, "where there are two or
more duly registered employees organizations in the appropriate organizational unit, the
Bureau of Labor Relations shall, upon petition, order the conduct of certification election and
shall certify the winner as the exclusive representative of the rank-and-file employees in said
organizational unit."cralaw virtua1aw library
Parenthetically, note should be taken of the specific qualification in the Constitution that the
State "shall guarantee the rights of all workers to self-organization, collective bargaining, and
peaceful concerted activities, including the right to strike in accordance with law" and that"
(t)hey shall also participate in policy and decision-making processes affecting their rights and
benefits as may be provided by law." 14 (Emphasis supplied.)
ON THE FOREGOING CONSIDERATIONS, the assailed resolution of the Bureau of Labor
Relations, dated November 21, 1978, is ANNULLED and SET ASIDE and the conduct of a
certification election among the affected employees of respondent National Housing
Corporation in accordance with the rules therefor is hereby GRANTED.
SO ORDERED.
Fernan (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin,
Sarmiento, Cortes, Grio-Aquino and Medialdea, JJ., concur.
Gancayco, J., on leave.
Endnotes:

1. Rollo, 191; National Housing Corporation v. Juco, Et Al., 134 SCRA 172 (1985).
2. Ibid., 14; Annex A.
3. Ibid., 20, Annex B.
4. Ibid., 21, Annex C.
5. Ibid., 27, Annex D.
6. Ibid., 31, Annex E.
7. National Housing Corporation v. Juco, Et Al., ante.
8. Sec. 1, Art. XII B.
9. Section 2 (1), Art. IX B.
10. National Service Corporation, Et. Al. v. The Hon. Third Division, National Labor Relations

Page 11 of 492

Commission, etc., Et Al., G.R. No. 69870, Nov. 29, 1988; see also Bliss Development
Corporation v. National Labor Relations Commission, Et Al., G.R. No. 82824, Resolution, Jan.
18, 1989.
11. Sec. 8, Art. III, 1987 Constitution.
12. Constitutional Commissions; B. The Civil Service Commission.
13. Records of the Constitutional Commission, Vol. I, 567.
14. Sec. 3 (2nd par.), Art. XIII.

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FIRST DIVISION
[G.R. No. 98107. August 18, 1997.]
BENJAMIN C. JUCO, Petitioner, v. NATIONAL LABOR RELATIONS COMMISSION and
NATIONAL HOUSING CORPORATION, Respondents.
Ricardo C . Valmonte for Petitioner.
The Government Corporate Counsel for Respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; 1973 CONSTITUTION; CONSTITUTIONAL COMMISSIONS; CIVIL
SERVICE COMMISSION; EMPLOYER IN GOVERNMENT-OWNED AND/OR CONTROLLED
CORPORATIONS EMBRACED WITHIN THE CIVIL SERVICE. Under the laws then in force,
employees of government-owned and/or controlled corporations were governed by the Civil
Service Law and not by the Labor Code. Hence, Article 277 of the Labor Code (PD 442) then
provided: "The terms and conditions of employment of all government employees, including
employees of government-owned and controlled corporations shall be governed by the Civil
Service Law rules and regulations. . . The 1973 Constitution, Article II-B, Section 1(1), on the
other hand provided: "The Civil Service embraces every branch, agency-subdivision and
instrumentality of the government, including government-owned or controlled corporations.
2. ID.; 1987 CONSTITUTION; CONSTITUTIONAL COMMISSION; CIVIL SERVICE COMMISSION;
ONLY EMPLOYEES OF GOVERNMENT-OWNED AND/OR CONTROLLED CORPORATIONS WITH
ORIGINAL CHARTER, EMBRACED WITHIN THE CIVIL SERVICE. Although we had earlier
ruled in National Housing Corporation v Juco, that employees of government-owned and/or
controlled corporations, whether created by special law or formed as subsidiaries under the
general Corporation Law, are governed by the Civil Service Law and not by the Labor Code,
this ruling has been supplanted by the 1987 Constitution. Thus, the said Constitution now
provides: "The civil service embraces all branches, subdivisions, instrumentalities and
agencies of the Government, including government-owned or controlled corporations with
original charter." (Article IX-8, Section 2[1]).
3. ID.; ID.; ID.; ID.; ID.; "WITH ORIGINAL CHARTER," CONSTRUED. We ruled that the new
phrase "with original charter" means that government-owned and controlled corporations refer
to corporations chartered by special law as distinguished from corporations organized under
the Corporation Code.
4. REMEDIAL LAW; JURISDICTION; CONSTITUTION IN PLACE AT TIME OF DECISION
DETERMINES JURISDICTION OVER CASES INVOLVING EMPLOYEES IN GOVERNMENT-OWNED
AND/OR CONTROLLED CORPORATIONS. In National Service Corporation (NASECO) v.
National Labor Relations Commission, we had the occasion to apply the present Constitution in
deciding whether or not the employees of NASECO are covered by the Civil Service Law or
Labor Code notwithstanding that the case arose at the time when the 1973 Constitution was
still in effect. We ruled that the NLRC has jurisdiction over the employees of NASECO on the

Page 13 of 492

ground that it is the 1987 Constitution that governs because it is the Constitution in place at
the time of the decision. Thus, NASECO which had been organized under the general
incorporation statute and a subsidiary of the National Investment Development Corporation,
which in turn was a subsidiary of the Philippine National Bank, is excluded from the purview of
the Civil Service Commission.
5. ID.; ID.; ID.; EMPLOYEES OF NHA INCORPORATED UNDER THE FORMER CORPORATION
LAW, SUBJECT TO THE PROVISIONS OF THE LABOR CODE. We see no cogent reason to
depart from the ruling in the aforesaid case. In the case at bench, the National Housing
Corporation is a government owned corporation organized in 1959 in accordance with
Executive Order No. 399, otherwise known as the Uniform Charter of Government Corporation
dated January 1, 1959. Its shares of stock are and have been one hundred percent (100%)
owned by the Government from its incorporation under Act 1459, the former corporation law.
The government entities that own it shares of stock are the Government Service Insurance
System, the Social Security System, the Development Bank of the Philippines, the National
Investment and Development Corporation and the Peoples Homesite and Housing
Corporations. Considering the fact that the NHA had been in incorporated under Act 1459, the
former corporation law, it is but correct to say that it is a government-owned or controlled
corporation whose employee are subject to the provisions of the Labor Code. This observation
is reiterated in the recent case of Trade Union of the Philippines and Allied Services (TUPAS) v.
National Housing Corporation, where we held that the NHA is now within the jurisdiction of the
Department of Labor and Employment, it being a government-owned and/or controlled
corporation without an original charter. Furthermore, we also held that the workers or
employees of the NHC (now NHA) undoubtedly have the right to form unions or employees
organization and that there is no impediment to the holding of a certification election among
them as they are covered by the Labor Code. Thus, the NLRC erred in dismissing petitioners
complaint for lack of jurisdiction because the rule now is that the Civil Service now covers only
government-owned or controlled corporations with original charters. Having been incorporated
under the Corporation Law, its relations with its personnel are governed by the Labor Code
and come under the jurisdiction of the National Labor Relations Commission.
DECISION
HERMOSISIMA, JR., J.:
This is a petition for certiorari to set aside the Decision of the National Labor Relations
Commission (NLRC) dated March 14, 1991, which reversed the Decision dated May 21, 1990
of Labor Arbiter Manuel R Caday, on the ground of lack of jurisdiction.
Petitioner Benjamin C. Juco was hired as a project engineer of respondent National Housing
Corporation (NHC) from November 16, 1970 to May 14, 1975. On May 14, 1975, he was
separated from the service for having been implicated in a crime of theft and/or malversation
of public funds.cralawnad
On March 25, 1977, petitioner filed a complaint for illegal dismissal against the NHC with the
Department of Labor.

Page 14 of 492

On September 17, 1977, the Labor Arbiter rendered a decision dismissing the complaint on
the ground that the NLRC had no jurisdiction over the case. 1
Petitioner then elevated the case to the NLRC which rendered a decision on December 28,
1982, reversing the decision of the Labor Arbiter. 2
Dissatisfied with the decision of the NLRC, respondent NHC appealed before this Court and on
January 17, 1985, we rendered a decision, the dispositive portion thereof reads as
follows:jgc:chanrobles.com.ph
"WHEREFORE, the petition is hereby GRANTED. The questioned decision of the respondent
National Labor Relations Commission is SET ASIDE. The decision of the Labor Arbiter
dismissing the case before it for lack of jurisdiction is REINSTATED." 3
On January 6, 1989, petitioner filed with the Civil Service Commission a complaint for illegal
dismissal, with preliminary mandatory injunction. 4
On February 6, 1989, respondent NHC moved for the dismissal of the complaint on the ground
that the Civil Service Commission has no jurisdiction over the case. 5
On April 11, 1989, the Civil Service Commission issued an order dismissing the complaint for
lack of jurisdiction. It ratiocinated that:jgc:chanrobles.com.ph
"The Board finds the comment and/or motion to dismiss meritorious. It was not disputed that
NHC is a government corporation without an original charter but organized/created under the
Corporation Code.
Article IX, Section 2 (1) of the 1987 Constitution provides:chanrob1es virtual 1aw library
The civil service embraces all branches, subdivisions, instrumentalities and agencies of the
Government, including government owned and controlled corporations with original charters.
(Emphasis supplied)
From the aforequoted constitutional provision, it is clear that respondent NHC is not within the
scope of the civil service and is therefore beyond the jurisdiction of this Board. Moreover, it is
pertinent to state that the 1987 Constitution was ratified and became effective on February 2,
1987.
WHEREFORE, for lack of jurisdiction, the instant complaint is hereby dismissed." 6
On April 28, 1989, petitioner filed with respondent NLRC a complaint for illegal dismissal with
preliminary mandatory injunction against respondent NHC. 7
On May 21, 1990, respondent NLRC thru Labor Arbiter Manuel R. Caday ruled that petitioner
was illegally dismissed from his employment by respondent as there was evidence in the
record that the criminal case against him was purely fabricated, prompting the trial court to
dismiss the charges against him. Hence, he concluded that the dismissal was illegal as it was
devoid of basis, legal or factual.

Page 15 of 492

He further ruled that the complaint is not barred by prescription considering that the period
from which to reckon the reglementary period of four years should be from the date of the
receipt of the decision of the Civil Service Commission promulgated on April 11, 1989. He also
ratiocinated that:jgc:chanrobles.com.ph
"It appears . . . complainant filed the complaint for illegal dismissal with the Civil Service
Commission on January 6, 1989 and the same was dismissed on April 11, 1989 after which on
April 28, 1989, this case was filed by the complainant. Prior to that, this case was ruled upon
by the Supreme Court on January 17, 1985 which enjoined the complainant to go to the Civil
Service Commission which in fact, complainant did. Under the circumstances, there is merit on
the contention that the running of the reglementary period of four (4) years was suspended
with the filing of the complaint with the said Commission. Verily, it was not the fault of the
respondent for failing to file the complaint as alleged by the respondent but due to, in the
words of the complainant, a legal knot that has to be untangled." 8
Thereafter, the Labor Arbiter rendered a decision, the dispositive portion of which
reads:jgc:chanrobles.com.ph
"Premises considered, judgment is hereby rendered declaring the dismissal of the complainant
as illegal and ordering the respondent to immediately reinstate him to his former position
without loss of seniority rights with full back wages inclusive of allowance and to his other
benefits or equivalent computed from the time it is withheld from him when he was dismissed
on March 27, 1977, until actually reinstated." 9
On June 1, 1990, respondent NHC filed its appeal before the NLRC and on March 14, 1991, the
NLRC promulgated a decision which reversed the decision of Labor Arbiter Manuel R. Caday on
the ground of lack of jurisdiction. 10
The primordial issue that confronts us is whether or not public respondent committed grave
abuse of discretion in holding that petitioner is not governed by the Labor Code.
Under the laws then in force, employees of government-owned and/or controlled corporations
were governed by the Civil Service Law and not by the Labor Code. Hence,
Article 277 of the Labor Code (PD 442) then provided:jgc:chanrobles.com.ph
"The terms and conditions of employment of all government employees, including employees
of government-owned and controlled corporations shall be governed by the Civil Service Law,
rules and regulations . . ."cralaw virtua1aw library
The 1973 Constitution, Article II-B, Section 1(1), on the other hand
provided:jgc:chanrobles.com.ph
"The Civil Service embraces every branch, agency, subdivision and instrumentality of the
government, including government-owned or controlled corporations."cralaw virtua1aw library
Although we had earlier ruled in National Housing Corporation v. Juco, 11 that employees of
government-owned and/or controlled corporations, whether created by special law or formed

Page 16 of 492

as subsidiaries under the general Corporation Law, are governed by the Civil Service Law and
not by the Labor Code, this ruling has been supplanted by the 1987 Constitution. Thus, the
said Constitution now provides:jgc:chanrobles.com.ph
"The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the
Government, including government owned or controlled corporations with original charter."
(Article IX-B, Section 2[1])
In National Service Corporation (NASECO) v. National Labor Relations Commission, 12 we had
the occasion to apply the present Constitution in deciding whether or not the employees of
NASECO are covered by the Civil Service Law or the Labor Code notwithstanding that the case
arose at the time when the 1973 Constitution was still in effect. We ruled that the NLRC has
jurisdiction over the employees of NASECO on the ground that it is the 1987 Constitution that
governs because it is the Constitution in place at the time of the decision. Furthermore, we
ruled that the new phrase "with original charter" means that government-owned and
controlled corporations refer to corporations chartered by special law as distinguished from
corporations organized under the Corporation Code. Thus, NASECO which had been organized
under the general incorporation statute and a subsidiary of the National Investment
Development Corporation, which in turn was a subsidiary of the Philippine National Bank, is
excluded from the purview of the Civil Service Commission.chanrobles virtual lawlibrary
We see no cogent reason to depart from the ruling in the aforesaid case.
In the case at bench, the National Housing Corporation is a government owned corporation
organized in 1959 in accordance with Executive Order No. 399, otherwise known as the
Uniform Charter of Government Corporation, dated January 1, 1959. Its shares of stock are
and have been one hundred percent (100%) owned by the Government from its incorporation
under Act 1459, the former corporation law. The government entities that own its shares of
stock are the Government Service Insurance System, the Social Security System, the
Development Bank of the Philippines, the National Investment and Development Corporation
and the Peoples Homesite and Housing Corporation. 13 Considering the fact that the NHA had
been incorporated under Act 1459, the former corporation law, it is but correct to say that it is
a government-owned or controlled corporation whose employees are subject to the provisions
of the Labor Code. This observation is reiterated in the recent case of Trade Union of the
Philippines and Allied Services (TUPAS) v. National Housing Corporation, 14 where we held
that the NHA is now within the jurisdiction of the Department of Labor and Employment, it
being a government-owned and/or controlled corporation without an original charter.
Furthermore, we also held that the workers or employees of the NHC (now NHA) undoubtedly
have the right to form unions or employees organization and that there is no impediment to
the holding of a certification election among them as they are covered by the Labor Code.
Thus, the NLRC erred in dismissing petitioners complaint for lack of jurisdiction because the
rule now is that the Civil Service now covers only government-owned or controlled
corporations with original charters. 15 Having been incorporated under the Corporation Law,
its relations with its personnel are governed by the Labor Code and come under the
jurisdiction of the National Labor Relations Commission.
One final point. Petitioners have been tossed from one forum to another for a simple illegal
dismissal case. It is but apt that we put an end to his dilemma in the interest of justice.

Page 17 of 492

WHEREFORE, the decision of the NLRC in NLRC NCR-04-02036089 dated March 14, 1991 is
hereby REVERSED and the Decision of the Labor Arbiter dated May 21, 1990 is
REINSTATED.chanrobles virtuallawlibrary
SO ORDERED.
Padilla, Bellosillo, Vitug and Kapunan, JJ., concur.
Endnotes:

1. Rollo, pp 20-2l
2. Id., pp. 22-26
3. Id., pp. 27-37
4. Id., pp. 38-42.
5. Id., pp. 43-47
6. Id., p. 52.
7. Id., pp. 53-58.
8. Id., p 68
9. Id., p 69.
10. Id., pp 78-86.
11. 134 SCRA 172 (1985).
12. 168 SCRA 122 (1988).
13. National Housing Corporation v. Juco, 134 SCRA 172 (1985).
14. 173 SCRA 33 (1989).
15. PNOC-Energy Development Corporation v. NLRC, 201 SCRA 487 (1991) The NHC (now
NHA).

Page 18 of 492

EN BANC
G.R. No. 116041 March 31, 1995
NESCITO C. HILARIO, Petitioner, v. CIVIL SERVICE COMMISSION and CHARITO L.
PLANAS,Respondents.chanrobles virtual law library
ROMERO, J.:
This is a petition for certiorari with prayer for the issuance of a Temporary Restraining Order
and Preliminary Injunction. Petitioner seeks to declare CSC Resolution No. 94-3336 dated June
23, 1994 and Resolution No. 93-4067 dated September 21, 1993 of the Civil Service
Commission (CSC) null and void.chanroblesvirtualawlibrarychanrobles virtual law library
On August 18, 1986, petitioner was appointed as City Attorney by the then OIC Brigido R.
Simon, Jr., at that time the Officer-In-Charge of the Office of the Mayor of Quezon City under
the Freedom Constitution of 1986.chanroblesvirtualawlibrarychanrobles virtual law library
On July 24, 1992, the newly-elected mayor, Ismael Mathay, Jr. took over from Mayor
Simon.chanroblesvirtualawlibrarychanrobles virtual law library
Mayor Mathay issued a letter 1dated July 24, 1992 to petitioner, which states:
In the absence of a tender of resignation on your part from your present position as City
Attorney (City Legal Officer), please be informed that pursuant to Sec. 481, Art. II of the Local
Government Code of 1991 providing that the position of City Legal Officer is co-terminous with
the appointing authority, you are considered resigned as of June 30, 1992.
On July 1, 1993, respondent Vice Mayor Charito L. Planas of Quezon City filed a
complaint 2with the CSC against petitioner and a certain Jose L. Pecson praying that
respondents be found administratively liable for usurpation, grave misconduct, being
notoriously undesirable, gross insubordination, and conduct grossly prejudicial to the best
interest of the service.chanroblesvirtualawlibrarychanrobles virtual law library
On September 21, 1993, the CSC issued Resolution No. 93-4067, 3the dispositive portion of
which states:
WHEREFORE, foregoing premises considered, the Commission resolves to hold in abeyance
any administrative disciplinary action against Atty. Nescito C. Hilario. However, Atty. Hilario
should not be allowed to continue holding the position of the Legal Officer (City Attorney) of
Quezon City.
Petitioner filed a Motion for Reconsideration which was denied by the CSC in its Resolution No.
94-3336, 4the dispositive portion of which states:
WHEREFORE, foregoing premises considered, the Commission hereby resolves to deny the
motion for reconsideration of Atty. Nescito Hilario. Accordingly, CSC Resolution No. 93-4067
dated September 21, 1993 stands.chanroblesvirtualawlibrarychanrobles virtual law library

Page 19 of 492

The Commission hereby orders the Cashier of the Quezon City government to stop payment of
salaries to Atty. Hilario, otherwise the former shall be personally liable for its
refund.chanroblesvirtualawlibrarychanrobles virtual law library
Let copies of this Resolution be furnished Mayor Ismael A. Mathay, Jr. and Vice Mayor Charito
L. Planas at their known addresses.
Hence, this petition.chanroblesvirtualawlibrarychanrobles virtual law library
Petitioner raises the following issues:chanrobles virtual law library
(1) petitioner's position as city legal officer is not confidential; andchanrobles virtual law
library
(2) respondent CSC has no authority to remove or terminate the services of
petitioner.chanroblesvirtualawlibrarychanrobles virtual law library
Petitioner alleges that when he was appointed City Attorney, the applicable law governing his
appointment was Batas Pambansa Blg. 337 and, therefore, his position should not be
considered confidential. He argues that although the said position was considered confidential
under Republic Act No. 5185, Batas Pambansa Blg. 337 impliedly repealed the confidential
nature of the position when it expanded the duties of City
Attorney.chanroblesvirtualawlibrarychanrobles virtual law library
We find petitioner's contention to be devoid of merit.chanroblesvirtualawlibrarychanrobles
virtual law library
The relevant provision of Republic Act No. 5185 states:
Sec. 19. Creation of positions of Provincial Attorney and City Legal Officer. - To enable the
provincial and city governments to avail themselves of the full time and trusted services of
legal officers, the positions of provincial attorney and city legal officer may be created and
such officials shall be appointed in such manner as is provided for under Section four of this
Act. For this purpose, the functions hitherto performed by the provincial and city fiscals in
serving as legal adviser and legal officer for civil cases of the province and city shall be
transferred to the provincial attorney and city legal officer, respectively. . . . (Emphasis
supplied)
Batas Pambansa Blg. 337, Section 188 enumerates the qualifications, powers and duties of the
city legal officer thus:
Sec. 188. Appointment, Qualifications, Compensation, Powers and Duties. - (1) The city legal
officer shall be appointed by the city mayor, subject to civil service law, rules and
regulation.chanroblesvirtualawlibrarychanrobles virtual law library
(2) No person shall be appointed city legal officer unless he is a citizen of the Philippines, of
good moral character, a member of the Philippine Bar, and has acquired experience in the

Page 20 of 492

practice of his profession for at least five years.chanroblesvirtualawlibrarychanrobles virtual

law library
(3) The city legal officer shall receive such compensation, emoluments and allowances as may
be determined by law or ordinance.chanroblesvirtualawlibrarychanrobles virtual law library
(4) The city legal officer shall be the chief legal adviser of the city and all offices thereof, and
as such shall:
(a) Represent the city in all civil cases wherein the city or any officer thereof, in his official
capacity, is a party;chanrobles virtual law library
(b) When required, draft ordinances, contracts, bonds, leases and other instruments involving
any interest of the city, and inspect and pass upon any such instruments already
drawn;chanrobles virtual law library
(c) Give his opinion in writing, when requested by the mayor or the sangguniang panlungsod,
upon any question relating to the city or the rights or duties of any city officer;chanrobles
virtual law library
(d) Investigate or cause to be investigated any city officer for neglect or misconduct in office,
or any person, firm or corporation holding any franchise or exercising any public privilege from
the city for failure to comply with any condition, or to pay any consideration mentioned in the
grant of such franchise or privilege, and recommend appropriate action to the sangguniang
panlungsod and the city mayor;chanrobles virtual law library
(e) Institute and prosecute in the city's interest when directed by the mayor, a suit on any
bond, lease, or other contract upon any breach or violation thereof; andchanrobles virtual law
library
(f) Exercise such other powers and perform such other duties and functions as may be
prescribed by law ordinance.
An examination of the provisions of Batas Pambansa Blg. 337 reveals no intention by the
legislature to remove the confidential nature of the position of city legal officer. What it does,
is to merely specify the various qualifications, powers and duties of a city legal officer which
were not enumerated under Republic Act No. 5185.chanroblesvirtualawlibrarychanrobles
virtual law library
We have consistently held in previous cases 5that the position of City Legal Officer is a
confidential one. In the recent case of Grio v. Civil Service Commission, 6respondent was
appointed provincial attorney at a time when Batas Pambansa Blg. 337 was in effect. We held
that the position of City Legal Officer has its counterpart in the position of provincial attorney
appointed by the provincial governor, both being positions involving the rendering of trusted
services. We said:
By virtue of Republic Act No. 5185, both the provincial attorney and city legal officer serve as
the legal adviser and legal officer for the civil cases of the province and the city that they work

Page 21 of 492

for. Their services are precisely categorized by law to be "trusted services."chanrobles virtual
law library
A comparison of the functions, powers and duties of a city legal officer as provided in the Local
Government Code with those of the provincial attorney of Iloilo would reveal the close
similarity of the two positions. Said functions clearly reflect the highly confidential nature of
the two offices and the need for a relationship based on trust between the officer and the head
of the local government unit he serves. The "trusted services" to be rendered by the officer
would mean such trusted services of a lawyer to his client which is of the highest degree of
trust.
Petitioner next questions the validity of CSC Resolution Nos. 93-4067 and 94-3336 for having
been issued without authority. He argues that the CSC "usurped the power, functions, and
prerogatives of Mayor Mathay to exclusively discipline and decide on matters affecting the
conduct and employment of Quezon City employees and officials who are under his control
and supervision." 7CSC Resolution 94-3336 states that: "It appears that Atty. Hilario was
issued an appointment effective August 18, 1986 by then Mayor Simon. Hence, his term of
office is deemed to have automatically expired when now Quezon City Mayor Mathay was
elected in office and subsequently assumed his position."chanrobles virtual law library
Petitioner maintains that the Mayor is the only one who may remove him from office directly
and not the CSC, which only has appellate powers to review the decision of the
Mayor.chanroblesvirtualawlibrarychanrobles virtual law library
We find this argument untenable.chanroblesvirtualawlibrarychanrobles virtual law library
Nothing in the Administrative Code precludes the CSC from deciding a disciplinary case before
it. Precisely, Section 47 thereof, states:
Sec. 47. Disciplinary Jurisdiction. - (1) 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 action to be
taken.
Although respondent Planas is a public official, there is nothing under the law to prevent her
from filing a complaint directly with the CSC against petitioner. Thus, when the CSC
determined that petitioner was no longer entitled to hold the position of City Legal Officer, it
was acting within its authority under the Administrative Code to hear and decide complaints
filed before it.chanroblesvirtualawlibrarychanrobles virtual law library
Petitioner further claims that he is not covered by Republic Act No. 7160, otherwise known as
The Local Government Code of 1991, which explicitly states that the term of the legal officers
shall be co-terminous with the office appointing authority. 8He argues that the co-terminous

Page 22 of 492

provision applies only to future appointments of the legal officer but does not apply to
incumbents.chanroblesvirtualawlibrarychanrobles virtual law library
This provision is but a reiteration of the principle that since the position of City Legal Officer is
a confidential one, it is perforce deemed to be co-terminous with that of the appointing
authority.chanroblesvirtualawlibrarychanrobles virtual law library
Lastly, petitioner alleges that although Mayor Mathay in his letter dated July 24, 1992
considered him resigned as of June 30, 1992, the latter still continued to give him legal
assignments, a cogent indication that Mayor Mathay still reposes trust and confidence in him;
thus, there is no reason for him to vacate his office.chanroblesvirtualawlibrarychanrobles
virtual law library
If Mayor Mathay really intended to retain the services of petitioner as City Legal Officer, he
could easily have done so by issuing a formal appointment to this effect. This he did not do. In
fact, at no time during the proceedings before the Civil Service Commission did Mayor Mathay
ever indicate a desire to rescind his letter dated July 24, 1992. Nor did the Mayor raise any
objection when the CSC ordered petitioner to vacate the position of City Legal Officer in
Quezon City.chanroblesvirtualawlibrarychanrobles virtual law library
We can only draw the irresistible conclusion that Mayor Mathay's silence is eloquent proof that
he does not intend petitioner to continue in the said
position.chanroblesvirtualawlibrarychanrobles virtual law library
WHEREFORE, the instant petition is hereby DISMISSED for lack of
merit.chanroblesvirtualawlibrarychanrobles virtual law library
SO ORDERED.
Feliciano, Bidin, Regalado, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan,
Mendoza and Francisco, JJ., concur.chanroblesvirtualawlibrarychanrobles virtual law library
Narvasa, C.J., took no part.
chanrobles virtual law library
chanrobles virtual law library
Separate Opinion
PADILLA, J., concurring:chanrobles virtual law library
In Grio v. Civil Service Commission (194 SCRA 458), I stated in my dissenting opinion that
the position of provincial attorney (and, by analogy, the city attorney) is not primarily
confidential but a career position, and, as such, the holder of the office owes his loyalty not to
the appointing authority (the provincial governor or city mayor) but to the provincial or city
government for which he acts as counsel or attorney.chanroblesvirtualawlibrarychanrobles
virtual law library

Page 23 of 492

The attorney-client relationship existed really between the local government unit concerned
and the lawyer appointed to the position of provincial or city attorney. It was clear that it
should be the local government unit concerned which should decide whether or not to
terminate said relationship and not the governor or mayor alone. In other words, governors
and mayors could go but the provincial attorney and city attorney would remain as a career
officer, subject to removal only for cause as provided by law and the civil service
rules.chanroblesvirtualawlibrarychanrobles virtual law library
It is unfortunate, however, that the Local Government Code of 1991 (Rep. Act No. 7160) in
Sec. 481 made the position of legal officer co-terminous with that of the appointing authority.
This, in my opinion, certainly adds to the demoralization within the ranks of career
government employees since appointments to the position of legal officer can now be based
on considerations other than performance, efficiency, dedication and public service. The
"spoils system" is now given free reign at least in the position of provincial attorney and city
attorney.chanroblesvirtualawlibrarychanrobles virtual law library
Given the above provision of the Local Government Code, I am left with no choice but to
concur with the Court's decision.chanroblesvirtualawlibrarychanrobles virtual law library
Separate Opinions
PADILLA, J., concurring:chanrobles virtual law library
In Grio v. Civil Service Commission (194 SCRA 458), I stated in my dissenting opinion that
the position of provincial attorney (and, by analogy, the city attorney) is not primarily
confidential but a career position, and, as such, the holder of the office owes his loyalty not to
the appointing authority (the provincial governor or city mayor) but to the provincial or city
government for which he acts as counsel or attorney.chanroblesvirtualawlibrarychanrobles
virtual law library
The attorney-client relationship existed really between the local government unit concerned
and the lawyer appointed to the position of provincial or city attorney. It was clear that it
should be the local government unit concerned which should decide whether or not to
terminate said relationship and not the governor or mayor alone. In other words, governors
and mayors could go but the provincial attorney and city attorney would remain as a career
officer, subject to removal only for cause as provided by law and the civil service
rules.chanroblesvirtualawlibrarychanrobles virtual law library
It is unfortunate, however, that the Local Government Code of 1991 (Rep. Act No. 7160) in
Sec. 481 made the position of legal officer co-terminous with that of the appointing authority.
This, in my opinion, certainly adds to the demoralization within the ranks of career
government employees since appointments to the position of legal officer can now be based
on considerations other than performance, efficiency, dedication and public service. The
"spoils system" is now given free reign at least in the position of provincial attorney and city
attorney.chanroblesvirtualawlibrarychanrobles virtual law library
Given the above provision of the Local Government Code, I am left with no choice but to
concur with the Court's decision.

Page 24 of 492

Endnotes:
1 Rollo, p. 8.chanrobles virtual law library
2 Annex "U," Petition; p. 90.chanrobles virtual law library
3 Annex "X," Petition; Rollo, p. 105.chanrobles virtual law library
4 Annex "A," Petition; Rollo, p. 36.chanrobles virtual law library
5 Besa v. Philippine National Bank, 33 SCRA 330 (1970); Claudio v. Subido, 40 SCRA 481
(1971); Villegas v. Subido, 41 SCRA 190 (1971).chanrobles virtual law library
6 194 SCRA 458, 467 (1991).chanrobles virtual law library
7 Rollo, p. 214, Reply of Petitioner.chanrobles virtual law library
8 Sec. 481, Art. II, R.A. 7160.

Page 25 of 492

SECOND DIVISION
[G.R. No. 141141. June 25, 2001.]
PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR), Petitioner, v.
CARLOS P. RILLORAZA, Respondent.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari praying for the reversal of the Decision dated
August 31, 1999 1 as well as the Resolution dated November 29, 1999, rendered by the Court
of Appeals in CA-G.R. SP No. 51803.chanrob1es virtua1 1aw 1ibrary
The facts are undisputed:chanrob1es virtual 1aw library
On November 5, 1997, administrative charges for dishonesty, grave misconduct, conduct
prejudicial to the best interest of the service, and loss of confidence, were brought against
respondent Carlos P. Rilloraza, a casino operations manager of petitioner PHILIPPINE
AMUSEMENT AND GAMING CORPORATION (PAGCOR). Respondent allegedly committed the
following acts:chanrob1es virtual 1aw library
Summary description of charge(s):chanrob1es virtual 1aw library
Failure to prevent an irregularity and violations of casino and regulations committed by coofficers during his shift on October 9, 1997.
1. During his shift of 6:00 a.m.-2:00 p.m. on October 9, 1997, four (4) personal checks with a
total value of Pesos: Five Million (P5,000,000) were issued by a small-time financier/player
and were facilitated by a COM with the Treasury Division which enabled the small-time
financier/player to withdraw and receive said amount. The facilitation of the checks was not
authorized by the Senior Branch Manager (SBM) or the Branch Manager for Operations (BMO)
and the COM who facilitated the checks was not on duty then.
2. He even facilitated one (1) of the personal checks with a value of Pesos: Five Hundred
Thousand (P500,000.00)
3. He failed to stop a top-ranking officer from placing bets over and above the allowable limit
of P5,000.00 per deal, he failed to stop the same officer from playing in the big tables and
lastly, he allowed the same officer to play beyond the allowable time limit of 6:00 a.m.
Respondent duly filed his answer during an investigation conducted by petitioners Corporate
Investigation Unit. He narrated the events that transpired:jgc:chanrobles.com.ph
"When I reported for my 6:00 a.m. to 2:00 p.m. shift, on October 9, that morning I saw BM
RICHARD SYHONGPAN beside TABLE #22 (BB) sitting at a coffee table inside Area 3. While

Page 26 of 492

inside the Area 3, GAM RENE QUITO approached me with a check worth P500,000.00
requested by a customer for endorsement to the Treasury. Since Ive been out of Manila
branch for 2 years and Ive just been recalled to this branch for only more than 3 weeks, Im
not quite familiar with the systems and I dont know this customer. I immediately approached
COM CARLOS GONZALES, who at that time was still around, to verify regarding the said check
and his immediate reply was "ITS OKAY AND GOOD AND IT WAS GUARANTEED BY BM
SYHONGPAN. In fact, I reconfirmed it again with COM GONZALES since he is more familiar
with the systems and customers, he answered me the same. So I gave the approval to GAM
QUITO for endorsement. When I went in the office, I instructed OOS GILBERT CABANA to beep
SBM VIC ADVINCULA and BMO DARIO CORDERO to call office "ASAP" because I wanted to
relay this matter to them and there were no reply from both of them. I instructed OOS
CABANA to send messages again to SBM & BMO, but still I received no reply. It was until after
noontime that BMO CORDERO returned my call and I reported the incident to him. When I was
at home at around 3:30 p.m. SBM ADVINCULA returned my call and I reported the incident. I
also relayed the incident to SBM REYES.
While during my rounds, I went down to the New VIP area and there I saw BM SYHONGPAN
sitting at TABLE #3 (BB) and he was holding house cards at that time. I approached and
stopped him but he reacted that the bet was not his but to a CUSTOMERS. I took his words
because as a subordinate, I respected him as one of our superior who very well know all our
companys policy esp. that an officer is not allowed to play at BIG table and are only allowed
to bet with a maximum of P5,000.00 only. So I believe it was not his bet but the said
customer. At that time there was no way for me to stop the game because I saw the said
customer, named MS. CORAZON CASTILLO, whom I dont know her [sic] since I was out of
Manila Branch 2 years, and whom BM SYHONGPAN was referring to as the player, has a lot of
chips worth about P7 Million in front of her and was betting P1.5 M on the banker side which
was over the maximum table limit by P500,000.00. I know we are allowed to authorize
approval by raising the betting limits as per request of the playing customers.
After the game, the chips were encashed and I instructed GAM J. EUGENIO to accompany BM
SYHONGPAN to his room because he was too drunk. When I was doing my rounds again,
thats how I found out from rumors within the gaming areas that this MS. CASTILLO was used
by BM SYHONGPAN and COM GONZALES to played [sic] in behalf of them the whole time. And
I also learned that there were four checks endorsed during my shift which I facilitated only
one check worth P500,000.00 after I verified and confirmed it with COM GONZALES. With
regards to the other 3 checks, I have no knowledge about it since they, BM SYHONGPAN and
COM GONZALES, kept it a secret from me. When GAM EUGENIO returned from the room of BM
SYHONGPAN he handed me some cash, which according to him, was given by BM SYHONGPAN
as BALATO. I did not accept the money because at that moment I was so mad that they
involved me beyond my innocence since I am new in the branch. I then instructed GAM
EUGENIO to return the money to BM SYHONGPAN. (sic)
Finding Rillorazas explanation unsatisfactory, the PAGCOR Board handed down a Resolution
on December 2, 1997 dismissing respondent and several others from PAGCOR, on the grounds
of dishonesty, grave misconduct and/or conduct prejudicial to the best interest of the service
and loss of confidence, effective December 5, 1997. The Board also denied respondents
motion for reconsideration in a Resolution dated December 16, 1997.
Respondent appealed to the Civil Service Commission. On November 20, 1998, the

Page 27 of 492

Commission issued Resolution No. 983033, 2 the dispositive portion of which provides, to
wit:chanrob1es virtual 1aw library
WHEREFORE, the appeal of Carlos P. Rilloraza is hereby dismissed. However, the Commission
finds appellant guilty only of Simple Neglect of Duty and metes out upon him the penalty of
one month and one day suspension. The assailed Resolution of PAGCOR Board of Directors is
thus modified.
The Commission denied petitioners motion for reconsideration in Resolution No. 990465 dated
February 16, 1999. 3
On appeal, the Court of Appeals affirmed the resolution of the Commission. 4 The appellate
court ordered petitioner to reinstate private respondent with payment of full backwages plus
all tips, bonuses and other benefits accruing to his position and those received by other casino
operations managers for the period starting January 5, 1998 until his actual reinstatement.
Petitioner filed a motion for reconsideration, 5 which was denied by the appellate court in the
assailed resolution of November 29, 1999. 6
Hence, the instant petition.
PAGCOR avers that:chanrob1es virtual 1aw library
I
THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED AND REFUSED TO CONSIDER
THAT RESPONDENT WAS A CONFIDENTIAL APPOINTEE OR EMPLOYEE WHOSE TERM HAD
EXPIRED BY REASON OF LOSS OF CONFIDENCE.chanrob1es virtua1 1aw 1ibrary
II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE CSC RESOLUTIONS
MODIFYING THE PENALTY METED OUT ON RESPONDENT FROM DISMISSAL TO SUSPENSION,
DESPITE THE GRAVITY OR SERIOUSNESS OF THE OFFENSES COMMITTED BY THE LATTER ON
ACCOUNT OF THE EXTRAORDINARY RESPONSIBILITIES AND DUTIES REPOSED IN THE
RESPONDENT BY VIRTUE OF HIS POSITION.
The wellspring of stability in government service is the constitutional guarantee of entrance
according to merit and fitness and security of tenure, viz:chanrob1es virtual 1aw library
x

(2) Appointments in the civil service shall be made only according to merit and fitness to be
determined, as far as practicable, and, except to positions which are policy-determining,
primarily confidential, or highly technical, by competitive examination.

Page 28 of 492

(3) No officer or employee of the civil service shall be removed or suspended except for cause
provided by law. 7
x

In the case at bar, we are basically asked to determine if there is sufficient cause to warrant
the dismissal, not merely the suspension, of respondent who, petitioner maintains, occupies a
primarily confidential position. In this connection, Section 16 of Presidential Decree No. 1869 8
provides:chanrob1es virtual 1aw library
Exemption. All positions in the Corporation, whether technical, administrative, professional
or managerial are exempt from the provisions of the Civil Service Law, rules and regulations,
and shall be governed only by the personnel management policies set by the Board of
Directors. All employees of the casinos and related services shall be classified as "Confidential"
appointee.
Petitioner argues that pursuant to the aforequoted provision, respondent is a primarily
confidential employee. Hence, he holds office at the pleasure of the appointing power and may
be removed upon the cessation of confidence in him by the latter. Such would not amount to a
removal but only the expiration of his term. However, there should be no lingering doubt as to
the true import of said Section 16 of P.D. No. 1869. We have already definitively settled the
same issue in Civil Service Commission v. Salas, 9 to wit:chanrob1es virtual 1aw library
In reversing the decision of the CSC, the Court of Appeals opined that the provisions of
Section 16 of Presidential Decree No. 1869 may no longer be applied in the case at bar
because the same is deemed to have been repealed in its entirety by Section 2(1), Article IX-B
of the 1987 Constitution. This is not completely correct. On this point, we approve the more
logical interpretation advanced by the CSC to the effect that "Section 16 of PD 1869 insofar as
it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been
amended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292
(Administrative Code of 1987).
However, the same cannot be said with respect to the last portion of Section 16 which
provides that "all employees of the casino and related services shall be classified as
confidential appointees." While such executive declaration emanated merely from the
provisions of Section 2, Rule XX of the Implementing Rules of the Civil Service Act of 1959,
the power to declare a position as policy-determining, primarily confidential or highly technical
as defined therein has subsequently been codified and incorporated in Section 12(9), Book V
of Executive Order No. 292 or the Administrative Code of 1987. This later enactment only
serves to bolster the validity of the categorization made under Section 16 of Presidential
Decree No. 1869. Be that as it may, such classification is not absolute and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized
instances when a position may be considered primarily confidential: Firstly, when the
President, upon recommendation of the Commissioner of Civil Service, has declared the
position to be primarily confidential; and, secondly, in the absence of such declaration, when
by the nature of the functions of the office there exists "close intimacy" between the appointee
and appointing power which insures freedom of intercourse without embarrassment or

Page 29 of 492

freedom from misgivings of betrayals of personal trust or confidential matters of state.

At first glance, it would seem that the instant case falls under the first category by virtue of
the express mandate under Section 16 of Presidential Decree No. 1869. An in-depth analysis,
however, of the second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that
"the non-competitive or unclassified service shall be composed of positions expressly declared
by law to be in the non-competitive or unclassified service or those which are policydetermining, primarily confidential, or highly technical in nature." In the case of Piero, Et. Al.
v. Hechanova, Et Al., the Court obliged with a short discourse there on how the phrase "in
nature" came to find its way into the law, thus:jgc:chanrobles.com.ph
"The change from the original wording of the bill (expressly declared by law . . . to be policydetermining, etc.) to that finally approved and enacted (or which are policy determining, etc.
in nature) came about because of the observations of Senator Taada, that as originally
worded the proposed bill gave Congress power to declare by fiat of law a certain position as
primarily confidential or policy-determining, which should not be the case. The Senator urged
that since the Constitution speaks of positions which are primarily confidential, policydetermining or highly technical in nature, it is not within the power of Congress to declare
what positions are primarily confidential or policy-determining.It is the nature alone of the
position that determines whether it is policy-determining or primarily confidential. Hence, the
Senator further observed, the matter should be left to the proper implementation of the laws,
depending upon the nature of the position to be filled, and if the position is highly
confidential then the President and the Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, But in positions that involved both confidential matters
and matters which are routine, . . . who is going to determine whether it is primarily
confidential? Senator Taada replied:chanrob1es virtual 1aw library
SENATOR TAADA: Well, at the first instance, it is the appointing power that determines that:
the nature of the position. In case of conflict then it is the Court that determines whether the
position is primarily confidential or not.." . . .
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the
nature of the position which finally" determines whether a position is primarily confidential,
policy-determining or highly technical. And the Court in the aforecited case explicitly decreed
that executive pronouncements, such as Presidential Decree No. 1869, can be no more than
initial determination that are not conclusive in case of conflict. It must be so, or else it would
then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat,
the protection of Section 4, Article XII (now Section 2[3], Article IX-B) of the Constitution. In
other words, Section 16 of Presidential Decree No. 1869 cannot be given a literally stringent
application without compromising the constitutionally protected right of an employee to
security of tenure. [Emphasis supplied]
The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and was
reaffirmed in the 1973 Constitution, as well as in the implementing rules of Presidential Decree
No. 807, or the Civil Service Decree of the Philippines. It may well be observed that both the
1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B thereof, that

Page 30 of 492

"appointments in the Civil Service, except as to those which are policy-determining, primarily
confidential, or highly technical in nature, shall be made only according to merit and fitness, to
be determined as far as practicable by competitive examination." Corollarily, Section 5 of
Republic Act No. 2260 states that "the non-competitive or unclassified service shall be
composed of positions expressly declared by law to be in the non-competitive or unclassified
service or those which are policy-determining, primarily confidential, or highly technical in
nature." Likewise, Section 1 of the General Rules in the implementing rules of PresidentialDecree No. 807 states that "appointments in the Civil Service, except as to those which are
policy-determining, primarily confidential, or highly technical in nature, shall be made only
according to merit and fitness to be determined as far as practicable by competitive
examination." Let it be here emphasized, as we have accordingly italicized them, that these
fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to
describe the character of the positions being classified.chanrob1es virtua1 1aw 1ibrary
The question that may now be asked is whether the Piero doctrine to the effect that
notwithstanding any statutory classification to the contrary, it is still the nature of the position,
as may be ascertained by the court in case of conflict, which finally determines whether a
position is primarily confidential, policy-determining or highly technical is still controlling
with the advent of the 1987 Constitution and the Administrative Code of 1987, Book V of
which deals specifically with the Civil Service Commission, considering that from these later
enactments, in defining positions which are policy-determining, primarily confidential or highly
technical, the phrase "in nature" was deleted.
We rule in the affirmative. The matter was clarified and extensively discussed during the
deliberations in the plenary session of the 1986 Constitutional Commission on the Civil Service
provisions, to wit:jgc:chanrobles.com.ph
"MR. FOZ:chanrob1es virtual 1aw library
Which department of government has the power or authority to determine whether a position
is policy-determining or primarily confidential or highly technical?
FR. BERNAS:chanrob1es virtual 1aw library
The initial decision is made by the legislative body or by the executive department, but the
final decision is done by the court. The Supreme Court has constantly held that whether or not
a position is policy-determining, primarily confidential or highly technical, it is determined not
by the title but by the nature of the task that is entrusted to it. For instance, we might have a
case where a position is created requiring that the holder of that position should be a member
of the Bar and the law classifies this position as highly technical. However, the Supreme Court
has said before that a position which requires mere membership in the Bar is not a highly
technical position. Since the term highly technical means something beyond the ordinary
requirements of the profession, it is always a question of fact.
MR. FOZ:chanrob1es virtual 1aw library
Does not Commissioner Bernas agree that the general rule should be that the merit system or
the competitive system should be upheld?

Page 31 of 492

FR. BERNAS:chanrob1es virtual 1aw library

I agree that that should be the general rule; that is why we are putting this as an exception.
MR. FOZ:chanrob1es virtual 1aw library
The declaration that certain positions are policy-determining, primarily confidential or highly
technical has been the source of practices which amount to the spoils system.
FR. BERNAS:chanrob1es virtual 1aw library
The Supreme Court has always said that, but if the law of the administrative agency says that
a position is primarily confidential when in fact it is not, we can always challenge that in court.
It is not enough that the law calls it primarily confidential to make it such; it is the nature of
the duties which makes a position primarily confidential.
MR. FOZ:chanrob1es virtual 1aw library
The effect of a declaration that a position is policy-determining, primarily confidential or highly
technical as an exception is to take it away from the usual rules and provisions of the
Civil Service Law and to place it in a class by itself so that it can avail itself of certain
privileges not available to the ordinary run of government employees and officers.
FR. BERNAS:chanrob1es virtual 1aw library
As I have already said, this classification does not do away with the requirement of merit and
fitness. All it says is that there are certain positions which should not be determined by
competitive examination.
For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we
require a physicist to undergo a competitive examination before appointment? Or a
confidential secretary or any position in policy-determining administrative bodies, for that
matter? There are other ways of determining merit and fitness than competitive examination.
This is not a denial of the requirement of merit and fitness."cralaw virtua1aw library
It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers
of the 1987 Constitution in providing for the declaration of a position as policy-determining,
primarily confidential or highly technical is to exempt these categories from competitive
examination as a means for determining merit and fitness. It must be stressed further that
these positions are covered by security of tenure, although they are considered noncompetitive only in the sense that appointees thereto do not have to undergo competitive
examinations for purposes of determining merit and fitness. [Emphasis supplied]
In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution
wherein it stated that "the declaration of a position as primarily confidential if at all, merely
exempts the position from the civil service eligibility requirement." Accordingly, the Piero
doctrine continues to be applicable up to the present and is hereby maintained. Such being the
case, the submission that PAGCOR employees have been declared confidential appointees by
operation of law under the bare authority of CSC Resolution No. 91-830 must be rejected.

Page 32 of 492

Justice Regalados incisive discourse yields three (3) important points: first, the classification
of a particular position as primarily confidential, policy-determining or highly technical
amounts to no more than an executive or legislative declaration that is not conclusive upon
the courts, the true test being the nature of the position. Second, whether primarily
confidential, policy-determining or highly technical, the exemption provided in the Charter
pertains to exemption from competitive examination to determine merit and fitness to enter
the civil service. Such employees are still protected by the mantle of security of tenure. Last,
and more to the point, Section 16 of P.D. 1869, insofar as it declares all positions within
PAGCOR as primarily confidential, is not absolutely binding on the courts.chanrob1es virtua1
1aw 1ibrary
Considerations vary so as to make a position primarily confidential. Private secretaries are
indisputably primarily confidential employees. 10 Those tasked to provide personal security to
certain public officials have also been deemed to hold primarily confidential positions 11 for
obvious reasons: the former literally are responsible for the life and well-being of the latter.
Similar treatment was accorded to those occupying the posts of city legal officer 12 and
provincial attorney, 13 inasmuch as the highly privileged nature of the lawyer-client
relationship mandates that complete trust and confidence must exist betwixt them. National
interest has also been adjudged a factor, such that the countrys permanent representative to
the United Nations was deemed to hold her post at the pleasure of the Chief Executive. 14
As casino operations manager, Rillorazas duties and responsibilities are:chanrob1es virtual
1aw library
JOB SUMMARY: The Casino Operations Manager directs, controls and supervises the
Operations Division of the branch. He reports directly to the Branch Manager or to the Branch
Manager for Operations in Metro Manila branches.
DUTIES AND RESPONSIBILITIES:chanrob1es virtual 1aw library
1. Formulates marketing programs and plans of action for branch gaming operations in order
to optimize revenue.
2. Institutes and maintains a healthy, organized, mentally alert, and highly motivated human
resource for effective and efficient branch gaming operations performance.
3. Takes measures to maintain and uphold the integrity of the casino games.
4. Reviews, analyzes, and evaluates gaming table and slot machine operations reports,
including income performance.
5. Submits periodic reports to the Branch Manager.
6. Directs the opening and closing of gaming table and slot machine areas.
7. Directs the setting-up, closure or suspension of operations of gaming tables and slot
machine units when deemed necessary.

Page 33 of 492

8. Controls the requisition, storage, and issuance of playing cards, gaming equipment and
paraphernalia, operations keys, and accountable receipts and slips.
9. Ensures that gaming operations personnel adhere to the established House Rules, company
policies and procedures.
10. Ensures that quality and efficient service is extended to casino patrons in accordance with
the established House Rules, company policies and procedures.
11. Directs and controls all activities of the Card Shuffling Center and the Card Distribution
Room.
12. Issues directives, memoranda, and other official communications on branch gaming
operations matters.
13. Directs the daily and periodic performance evaluation of operations personnel.
14. Requires written statements from operations personnel regarding disputes, reported
irregularities and violations of House Rules, company policies and procedures.
15. Issues or recommends disciplinary sanctions against delinquent operations personnel, as
well as commendations to deserving ones.
16. Upon the Branch Managers approval, issues preventive suspension to erring employees
pending investigation.
17. Effects immediate changes in House Rules when deemed necessary, subject to
management review.
18. Approves table refill, chip yield, and dropbox yield transactions, as well as the payment for
progressive link super jackpot awards.
19. Directs the cancellation of progressive link super jackpot combinations.
20. Signs chip checks in behalf of the Branch Manager.
21. Approves complimentary food and beverages to deserving players and evaluates the same
for the possible extension of other amenities.
22. Settles disputes arising from gaming operations that have not been effectively settled by
gaming managers and supervisors, and enforces decisions on the interpretation of House
Rules, company policies, and procedures.
23. Recommends to the Branch Manager the banning of undesirable players.
24. Orders the removal of customers or employees from the table gaming (sic) and slot
machine area for justifiable reasons.
25. Implements contingency plans in case of emergencies to ensure the security and safety of

Page 34 of 492

customers and staff.

26. Acts on customer complaints, suggestions, and observations.
27. Chairs the Branch Infractions Committee, the Variance Committee, and other ad hoc
committees of the Operations Division.
28. Represents the Operations Division in Branch Management panel meetings.
29. Apprises the Branch Manager of any incident of doubtful nature and of developments that
require his immediate attention.
30. Performs other duties as may be designated by the Branch Manager.
Undoubtedly, respondents duties and responsibilities call for a great measure of both ability
and dependability. They can hardly be characterized as routinary, for he is required to exercise
supervisory, recommendatory and disciplinary powers with a wide latitude of authority. His
duties differ markedly from those we previously ruled as not primarily confidential: for
instance, PAGCORs Internal Security Staff; 15 Management and Audit Analyst I of the
Economic Intelligence and Investigation Bureau; 16 a Special Assistant to the Governor of the
Central Bank; 17 the Legal Staff of the Provincial Attorney; 18 members of the Customs
Police; 19 the Senior Executive Assistant, Clerk I, Supervising Clerk I and Stenographer; 20
and a Provincial Administrator. 21 In this sense, he is a tier above the ordinary rank-and-file
in that his appointment to the position entails faith and confidence in his competence to
perform his assigned tasks. Lacking, therefore, is that amplitude of confidence reposed in him
by the appointing power so as to qualify his position as primarily confidential. Verily, we have
observed that:chanrob1es virtual 1aw library
[i]ndeed, physicians handle confidential matters. Judges, fiscals and court stenographers
generally handle matters of similar nature. The Presiding and Associate Justices of the Court of
Appeals sometimes investigate, by designation of the Supreme Court, administrative
complaints against judges of first instance, which are confidential in nature. Officers of the
Department of Justice, likewise, investigate charges against municipal judges. Assistant
Solicitors in the Office of the Solicitor General often investigate malpractice charges against
members of the Bar. All of these are "confidential" matters, but such fact does not warrant the
conclusion that the office or position of all government physicians and all Judges, as well as
the aforementioned assistant solicitors and officers of the Department of Justice are primarily
confidential in character. 22
We further note that a casino operations manager reports directly to the Branch Manager or,
in Metro Manila branches, to the Branch Manager for Operations. It does not appear from the
record to whom the Branch Manager (or the Branch Manager for Operations, as the case may
be) reports. It becomes unmistakable, though, that the stratum separating the casino
operations manager from reporting directly to the higher echelons renders remote the
proposition of proximity between respondent and the appointing power. There is no showing of
that element of trust indicative of a primarily confidential position, as we defined it in De los
Santos v. Mallare, 23 to wit:chanrob1es virtual 1aw library
Every appointment implies confidence, but much more than ordinary confidence is reposed in

Page 35 of 492

the occupant of a position that is primarily confidential. The latter phrase denotes not only
confidence in the aptitude of the appointee for the duties of the office but primarily close
intimacy which insures freedom of intercourse without embarrassment or freedom from
misgivings of betrayals of personal trust or confidential matters of state.chanrobles
virtuallawlibrary
Necessarily, the point of contention now is whether there was cause for the respondents
separation from the service. On this point, having analyzed both parties arguments, we find
that the Civil Service Commission did not err in declaring that Rilloraza was liable only for
simple neglect of duty. In the first place, there is no evidence to sustain a charge of
dishonesty. As the latter term is understood, it implies a:chanrob1es virtual 1aw library
Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity. Lack of
honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition
to defraud, deceive or betray. 24
In the case at bar, respondents explanation fails to evince an inclination to lie or deceive, or
that he is entirely lacking the trait of straightforwardness. We concur with the appellate courts
finding, thus:chanrob1es virtual 1aw library
Available proof unmistakably demonstrate that upon seeing BM Syhongpan playing at Table
No. 3BB, respondent Rilloraza at once, told him to stop. However, Syhongpan explained that
he was merely playing for a customer, Ms. Corazon Castillo who was seated also at the table.
After observing the large number of chips in front of Ms. Castillo estimated at around P7M,
respondent became convinced of the clarification given by Branch Managa Syhongpan and he
must have relied also on the word of said top ranking PAGCOR official whose representation
must ordinarily be accepted and accorded respect and credence by a subordinate like him. . .
.
More importantly, the PAGCOR Adjudication Committee concluded that respondent actually
attempted to stop the game where Syhongpan was playing which was even utilized as basis by
the PAGCOR Board in dismissing Respondent. . . .
x

The allegation that respondent Rilloraza allowed Syhongpan to place bets over and above the
allowable limit of P5,000.00 per deal is not anchored on a correct premise. Respondent
Rilloraza has steadfastly maintained that he is of the belief that BM Syhongpan is not playing
for himself but for Ms. Castillo. Thus, if Syhongpan is merely acting for the real casino player,
then the policy of not allowing any PAGCOR official to bet beyond P5,000.00 has no
application. Respondent Rilloraza believed in good faith that the bet was not BM Syhongpans
but of Ms. Castillo and should not be unduly punished for his honest belief. The same reason
exists for the claim that respondent allowed BM Syhongpan to play beyond 6:00 a.m. This is
non sequitur since Rilloraza never entertained the idea that Syhongpan was the gambler.
Lastly, if only to consummate respondents alleged dishonesty and grave misconduct by
corruptly profiting from said incident, he could have easily pocketed the balato given by
Syhongpan, but he never did, and in fact, returned the money. . . .

Page 36 of 492

On the facilitation of the swap of a P500,000.00 personal check for chips, this Court, after
considering the parties involved and the circumstances of the case, believes that respondent
Rilloraza has judiciously performed all the acts necessary to protect the interests of PAGCOR
and has acted as a prudent and reasonable man. It is evident that respondent had the
authority to approve the exchange of checks for gambling chips. In the exercise of such
discretion, We find that the approval by Rilloraza of the exchange was done with caution and
circumspect [sic]. When he was approached by GAM Quito for endorsement of said personal
checks per request of a customer, he immediately approached COM Gonzales to verify the
check who assured him that the check was good and in fact guaranteed by Mr. Syhongpan,
Davao City Branch Manager of PAGCOR. To be sure, he even reconfirmed the same with
Gonzales as he is more familiar with the systems and the customers since he has been
recalled to the branch for only three (3) weeks. After approving the endorsement, he
immediately tried to contact SBM Advincula and BMO Cordero, to notify them of his action but
none of them called back. In the afternoon, both returned the call and were informed by
respondent of the exchange of the chips for the check and presumably, the former ratified or
acquiesced to the action of respondent since there was no objection or complaint about the
matter. . . .
These same findings negate the conclusion that respondent is guilty of misconduct or conduct
prejudicial to the best interest of the service. In Manuel v. Calimag, Jr., 25 we defined
misconduct, thus:chanrob1es virtual 1aw library
Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. Lopez in
these words: "Misconduct in office has a definite and well-understood legal meaning. By
uniform legal definition, it is a misconduct such as affects his performance of his duties as an
officer and not such only as affects his character as a private individual. In such cases, it has
been said at all times, it is necessary to separate the character of the man from the character
of the officer . . . . It is settled that misconduct, misfeasance, or malfeasance warranting
removal from office of an officer, must have direct relation to and be connected with the
performance of official duties amounting either to maladministration or willful, intentional
neglect and failure to discharge the duties of the office . . .
Differently propounded in Canson v. Garchitorena, Et Al., 26 misconduct is any unlawful
conduct on the part of a person concerned in the administration of justice prejudicial to the
rights of parties or to the right determination of the cause. It generally means wrongful,
improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose.
The term, however, does not necessarily imply corruption or criminal intent. On the other
hand, the term gross connotes something out of all measure; beyond allowance; not to be
excused; flagrant; shameful." From the facts given, absent is that element of intent to do
wrong against petitioner.
CSC Resolution No. 991936 dated August 31, 1999 classifies simple neglect of duty as a less
grave offense punishable as a first offense by suspension of one (1) month and one (1) day to
six (6) months. 27 In the imposition of the proper penalty, Section 54 thereof provides, as
follows: (a) the minimum of the penalty shall be imposed where only mitigating and no
aggravating circumstances are present; (b) the medium of the penalty shall be imposed where

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no mitigating and aggravating circumstances are present; and (c) the maximum of the penalty
shall be imposed where only aggravating and no mitigating circumstances are present. In
turn, the circumstances that may be properly considered are:chanrob1es virtual 1aw library
SECTION 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. In the
determination of the penalties to be imposed, mitigating, aggravating and alternative
circumstances attendant to the commission of the offense shall be considered.chanrob1es
virtua1 1aw 1ibrary
The following circumstances shall be appreciated:chanrob1es virtual 1aw library
a. Physical illness
b. Good faith
c. Taking undue advantage of official position
d. Taking undue advantage of subordinate
e. Undue disclosure of confidential information
f. Use of government property in the commission of the offense
g. Habituality
h. Offense is committed during office hours and within the premises of the office or building
i. Employment of fraudulent means to commit or conceal the offense
j. Length of service in the government
k. Education, or
l. Other analogous circumstances
Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the proper
party, otherwise, said circumstances shall not be considered in the imposition of the proper
penalty. The Commission, however, in the interest of substantial justice may take and
consider these circumstances.chanrob1es virtua1 1aw 1ibrary
We find that the Civil Service Commission, as affirmed by the Court of Appeals, correctly
attributed good faith on the part of Respondent. Accordingly, the modified penalty imposed by
the Civil Service Commission on the respondent which was affirmed by the Court of Appeals,
was proper under the premises.
WHEREFORE, the petition is hereby DENIED for lack of merit. The Decision dated August 31,
1999 as well as the Resolution dated November 29, 1999, rendered by the Court of Appeals in
CA-G.R. SP No. 51803 are hereby AFFIRMED. No costs.chanrob1es virtua1 1aw 1ibrary

Page 38 of 492

SO ORDERED.
Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.
Endnotes:

1. Justice Presbitero J. Velasco, Jr., ponente; Justice Fermin A. Martin, Jr. and Justice Bennie
A. Adefuin-de la Cruz, concurring.
2. Annex "C" of the Petition, Rollo, pp. 62-70.
3. Annex "D" of the Petition, Rollo, pp. 71-72.
4. Decision, Annex "A" of the Petition, Rollo, pp. 33-57.
5. Annex "E" of the Petition, Rollo, pp. 73-80.
6. Annex "B" of the Petition, Rollo, pp. 59-60.
7. Constitution, Art. IX-B, Sec. 2.
8. Entitled "Consolidating and Amending Presidential Decree Nos. 1067-A, 1067-B, 1067-C,
1399 and 1632, Relative to the Franchise and Powers of the Philippine Amusement and
Gaming Corporation (PAGCOR), dated July 11, 1983."cralaw virtua1aw library
9. 274 SCRA 414, 420-427 (1997)
10. Corpus v. Cuademo, Sr., 13 SCRA 591, 596 (1965).
11. Borres v. Court of Appeals, 153 SCRA 120, 132 (1987).
12. Cadiente v. Santos, 142 SCRA 280, 284 (1986), citing Claudio v. Subido, 40 SCRA 481
(1971).
13. Grio v. Civil Service Commission, 194 SCRA 458, 466 (1991).
14. Santos v. Macaraig, 208 SCRA 74, 84 (1992).
15. Civil Service Commission v. Salas, supra.
16. Tria v. Sto. Tomas, 199 SCRA 833, 840-841 (1991).
17. Corpuz v. Cuaderno, supra.
18. Grio v. Civil Service Commission, supra.
19. Piero v. Hechanova, 18 SCRA 417, 424 (1966).

Page 39 of 492

20. Ingles v. Mutuc, 26 SCRA 171, 177 (1969).

21. Laurel v. Civil Service Commission, 203 SCRA 195, 204 (1991).
22. Ingles v. Mutuc, supra.
23. 87 Phil. 289, 298 (1950).
24. Blacks Law Dictionary, Sixth Ed., p. 468, 1990.
25. 307 SCRA 657, 661-662 (1999).
26. 311 SCRA 268, 285 (1999).
27. Sec. 52(B).

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EN BANC
[G.R. No. L-26838. May 29, 1970.]
TOMAS BESA, Petitioner, v. PHILIPPINE NATIONAL BANK; HON. ROBERTO S.
BENEDICTO, President of the Philippine National Bank; THE BOARD OF DIRECTORS,
Philippine National Bank; HON. ANTONIO M. DIAZ, BIENVENIDO M. JUAT, SIMEON G.
MIRANDA, JUAN PONCE ENRILE, ISMAEL M. REINOSO, and JUAN TRIVIO, Members
of the Board of Directors of the Philippine National Bank; and HON. CONRADO E.
MEDINA, Actg. Asst. Vice-President, In-charge of the Loans Adjustment
Dept., Respondents.
Juan T. David for Petitioner.
Jose L. Africa and Miguel V. Gonzales for respondents Philippine National Bank
President, Et. Al.
Conrado E. Medina for respondents Philippine National Bank and The Board of
Directors.
SYLLABUS
1. CONSTITUTIONAL LAW; CIVIL SERVICE; REMOVAL FOR CAUSE; NOT APPLICABLE WHEN
TERM DEPENDS ON THE WILL OF APPOINTING POWER. It is appropriate to invoke the
constitutional provision against removal without cause when an officer or employee in the civil
service enjoying fixed term is made to lose his position without warrant or justification. It finds
no application when the duration of ones term depends on the will of the appointing power.
That is so when the position held is highly confidential in character.
2. ID.; ID.; ID.; POSITION OF CHIEF COUNSEL OF PNB IS BOTH CONFIDENTIAL AND
TECHNICAL IN NATURE. The position of Chief Legal Counsel of PNB is highly confidential in
nature, in essence of which is the utmost degree of confidence involving such "close intimacy
which insures freedom of intercourse without embarrassment or freedom from misgivings of
betrayals" whether personal trust or official matters. The incumbents term could be cut short
anytime without giving rise to any alleged infringement of the removal-for-cause guarantee of
the constitution. In the instant case there is no removal which according to such constitutional
mandate is only allowable for cause.
3. ID.; ID.; ID.; ID.; INCUMBENTS OF PRIMARILY CONFIDENTIAL POSITIONS. The matter
as to who is incumbent of a primarily confidential position was set forth with precision and
clarity by the present Chief Justice in a recent decision. Thus : "This should not be
misunderstood as denying that the incumbent of a primarily confidential position holds office
at the pleasure only of the appointing power. It should be noted, however, that when such
pleasure turns into displeasure, the incumbent is not removed or dismissed from his office
his term merely expires, in much the same way as an officer, whose right thereto ceases
upon expiration of the fixed term for which he had been appointed or elected, is not and can
not be deemed removed or dismissed therefrom, upon the expiration of said term. The main

Page 41 of 492

difference between the former the primarily confidential officer and the latters term is
fixed and definite, whereas that of the former is not prefixed, but indefinite, at the time of his
appointment or election, and becomes fixed and determined when the appointing power
expresses its decision to put an end to the services of the incumbent. When this event takes
place, the latter is not removed or dismissed from office his term has merely expired."
4. ID.; ID.; ID.; ID.; CESSATION IN OFFICE INVOLVES NO REMOVAL. The tenure of officials
holding primarily confidential positions (such as private secretaries of public functionaries)
ends upon loss of confidence, because their term of office lasts only as long as confidence in
them endures; and thus their cessation involves no removal.
5. ID.; ID.; ID.; INCUMBENTS OF PRIMARILY CONFIDENTIAL POSITIONS DISTINGUISHED
FROM THOSE OF HIGHLY TECHNICAL POSITION. The constitution clearly distinguished the
primarily confidential from the highly technical, and to apply the loss of confidence rule to the
latter incumbents is to ignore and erase the differentiation expressly made by our fundamental
charter.
6. ID.; ID.; ID.; POSITION OF LEGAL COUNSEL OF PNB ALTHOUGH HIGHLY TECHNICAL, STILL
PRIMARILY CONFIDENTIAL. It cannot be denied of course that the work of the Chief Legal
Counsel of respondent Bank, as of any lawyer for that matter is impressed with a highly
technical aspect. As had been pointed out, however, it does not mean that thereby a client is
precluded from substituting in his stead another practitioner. That is his right; his decision to
terminate the relationship once made is impressed with the attribute of finality. The lawyer
cannot be heard to complain; it is enough that his right to compensation earned be duly
respected.
7. ID.; ID.; ID.; ID.; NO RIGHT TO FIXED TERM. It is equally clear that where the position
partakes of the attributes of being both technical and confidential, there can be no insistence
on a fixed or definite term if the latter aspect predominates. To paraphrase the language of
the Chief Justice in the opinion previously cited, the incumbent of a primarily confidential
position, as was the case of petitioner, should realize that at any time the appointing power
may decide that his services are no longer needed.
DECISION
FERNANDO, J.:
The constitutional safeguard against removal from office except for cause is invoked by
petitioner Tomas Besa in this proceeding for certiorari, prohibition and quo warranto. 1
Appointed Chief Legal Counsel with the rank of Vice-President of respondent Philippine
National Bank in 1962, he was shifted by virtue of a resolution of respondent Bank on October
19, 1966, to the office of its President, respondent Roberto S. Benedicto, as Consultant on
Legal Matters, 2 with respondent Conrado E. Medina being assigned to his position. While
petitioner would seek to nullify the above resolution and enjoin its enforcement, his action is
essentially one of quo warranto. Its success is thus dependent on his being able to sustain the
burden of demonstrating that what was done by respondent Bank, through its Board of

Page 42 of 492

Directors, all of whom were likewise named respondents, could in law be characterized as
removal without cause contrary to the explicit mandate of the Constitution. That he was not
able to do. The petition must fail.
There is no dispute as to the facts. Petitioner was appointed on July 12, 1962 as Chief Legal
Counsel of respondent Bank with the rank of Vice-President. On October 20, 1966, a letterdirective was issued by the then President of the Bank, respondent Benedicto, that he was
transferred to his office as Consultant on Legal Matters. The justification for such a move was
Resolution No. 1053 of respondent Board of Directors of the Bank, wherein it was expressly
stated "that Vice President Tomas Besa be shifted to the Office of the President as Consultant
on Legal Matters, without change in salary and other privileges."cralaw virtua1aw library
Thereafter, on October 24, 1966, Petitioner, in a letter addressed to the respondent Board of
Directors and respondent President Benedicto, sought a reconsideration of the action above
taken. Under date of October 27, 1966, the Secretary of respondent Board of Directors
advised petitioner of the denial of his motion for reconsideration. In the aforesaid letterdirective of October 20, 1966, respondent Conrado E. Medina was designated Vice-President
and Chief Legal Counsel effective as of that day.
In its answer, respondents admitted the above facts and stressed that respondent Medina far
from usurping the position of petitioner "is Vice President and Chief Legal Counsel of the
respondent Bank who has assumed office and discharged the duties thereof starting October
20, 1966 by virtue of a valid appointment extended to him by the respondent Board of
Directors and a letter-directive issued pursuant thereto by respondent PNB President Roberto
S. Benedicto." 3 The action taken in the case of petitioner was explained thus: "The transfer of
petitioner from the Legal Department is further justified by the following facts and
circumstances: a) The position of Chief Legal Counsel carries a special confidential relationship
of lawyer and client. In this regard, the Bank has the prerogative to designate or change its
lawyer, that is, to choose the lawyer, in whom it may have confidence, to head its Legal
Department; b) As a matter of fact, it was on this same principle of confidence that in 1962
the petitioner, who was then an outsider (private practitioner), was appointed as Vice
President and Chief Legal Counsel by the transfer of Atty. Ramon B. de los Reyes, who was
then head (for twenty-one years) of the Legal Department, to a new position of Technical
Assistant to the Executive Vice President, with only the rank of Assistant Vice President; c) The
transfer of petitioner from the Legal Department was made by the respondent Board, in the
exercise of its powers, upon the recommendation of their respondent PNB President. The
respondent Board had authorized the PNB President to revitalize the Legal Department, . . ."
4
As was made clear at the outset, the law is not on the side of petitioner. His plea cannot be
granted.
1. Petitioners reliance on the constitutional provision against removal without cause is
misplaced. It is appropriate to invoke it when an officer or employee in the civil service
enjoying a fixed term is made to lose his position without warrant or justification. It certainly
finds no application when the duration of ones term depends on the will of the appointing
power. That is so where the position held is highly confidential in character. Such is the case
of the Chief Legal Counsel of respondent Philippine National Bank. That is our answer to the
specific question before us. Our decision is limited to the validity of the action taken by

Page 43 of 492

respondent Bank. We do not by any means intimate an opinion as to the legal consequences
attaching to an action similar in character taken by any other office or agency of the
government concerning a lawyer in its staff, especially one who was not employed precisely
because of the marked degree of confidence reposed in him, but rather because of his
technical competence.
As far as the petitioner is concerned, however, it is our conclusion that he could not plausibly
contend that there was a removal in the constitutional sense as what did take place was a
termination of official relation. Accepting as he did the position of chief legal adviser, the
essence of which is the utmost degree of confidence involving such "close intimacy which
insures freedom of intercourse without embarrassment or freedom from misgivings of
betrayals" whether of personal trust or official matters, 5 he could not have been unaware that
his term could be cut short any time without giving rise to any alleged infringement of the
above constitutional safeguard. There was no removal which according to such a mandate is
only allowable for cause. Hence the lack of persuasive character of petitioners plea.
The matter was set forth with precision and clarity by the present Chief Justice in a recent
decision. 6 Thus: "This should not be misunderstood as denying that the incumbent of a
primarily confidential position holds office at the pleasure only of the appointing power. It
should be noted, however, that when such pleasure turns into displeasure, the incumbent is
not removed or dismissed from office his term merely expires, in much the same way
as an officer, whose right thereto ceases upon expiration of the fixed term for which he had
been appointed or elected, is not and can not be deemed removed or dismissed therefrom,
upon the expiration of said term. The main difference between the former the primarily
confidential officer and the latter is that the latters term is fixed or definite, whereas that of
the former is not prefixed, but indefinite, at the time of his appointment or election, and
becomes fixed and determined when the appointing power expresses its decision to put an
end to the services of the incumbent. When this event takes place, the latter is not removed
or dismissed from office his term has merely expired."cralaw virtua1aw library
2. Petitioner in his memorandum apparently was encouraged by the long, unbroken,
unquestioned course of impressive adjudication of this Court that has given a well-nigh allembracing scope to the mantle of protection covering civil service personnel against removal
without cause. So it has been from Lacson v. Romero 7 to the above-cited Ingles v. Mutuc
decision. 8 So, it is to be expected, it would continue to be. Petitioners cause did not thereby
gain ground however. For as had just been made clear, there was in his case no question of
removal. The excerpts cited by him from a few of the authoritative precedents thus do not
commend themselves for their pertinence or relevance. 9
There is a question raised by petitioner in his memorandum though, unfortunately not given
the fullness of attention devoted to the removal aspect, which deserves to be further looked
into. While the mode of inviting our attention to it could have benefited from a more precise
delineation of its implications, reference to our Corpus v. Cuaderno 10 ruling would indicate
that what petitioner had in mind was the permanency of the terms of an official whose line of
work is likewise of a technical character. As was made clear by Justice J. B. L. Reyes, who
penned the opinion: "The tenure of officials holding primarily confidential positions (such as
private secretaries of public functionaries) ends upon loss of confidence, because their term of
office lasts only as long as confidence in them endures; and thus their cessation involves no
removal. But the situation is different for those holding highly technical posts, requiring special

Page 44 of 492

skills and qualifications. The Constitution clearly distinguished the primarily confidential from
the highly technical, and to apply the loss of confidence rule to the latter incumbents is to
ignore and erase the differentiation expressly made by our fundamental charter."cralaw
virtua1aw library
Petitioner did satisfy himself with citing the title of the above decision and that of two
subsequent cases 11 that adhere to the above principle. It could be that he was more than
persuaded that such a succinct and abbreviated form of argumentation would suffice to carry
the day. It does not, however, as a more careful analysis of the above doctrine would indicate.
It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank, as
of any lawyer for that matter, is impressed with a highly technical aspect. As had been pointed
out, however, it does not mean that thereby a client is precluded from substituting in his stead
another practitioner. That is his right; his decision to terminate the relationship once made is
impressed with the attribute of finality. The lawyer cannot be heard to complain; it is enough
that his right to compensation earned be duly respected.
In that sense, it is equally clear that where the position partakes of the attributes of being
both technical and confidential, there can be no insistence of a fixed or a definite term if the
latter aspect predominates. To paraphrase the language of the Chief Justice in the opinion
previously cited, the incumbent of a primarily confidential position, as was the case of
petitioner, should realize that at any time the appointing power may decide that his services
are no longer needed. As thus correctly viewed, Corpus v. Cuaderno cannot be read as lending
support to petitioners efforts to retain his position as Chief Legal Counsel of respondent Bank,
contrary to its wishes as so explicitly declared in its Resolution No. 1053.
3. It is manifest from the foregoing that we have considered the crucial issue posed from the
standpoint of the right enjoyed by respondent Bank to choose who its legal counsel should be
and how long he would remain as such. We have not seen any need to pass upon the
conflicting claims raised as to the alleged failure of petitioner in the discharge of his functions
to extend the utmost protection to the interests of respondent Bank nor of the vigorous
defense of his actuations as such, which if given full credence, would erase the slightest doubt
as to his competence and proficiency. For as above note, the decisive issue is the confidential
character of petitioners position, which negates reliance on the removal-for-cause guarantee
of the Constitution. We thus leave open for future determination. When and if such a litigation
arises, case involving the other vice-presidents of the respondent Bank, where it would appear
the overriding factor in their selection is not that degree of the utmost confidence reposed in a
lawyer but their technical skills in the performance of the duties entrusted to them.
WHEREFORE, this petition for certiorari, prohibition and quo warranto is dismissed. Without
pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Teehankee, Barredo and Villamor, JJ., concur.
Dizon and Zaldivar, JJ., did not take part.
Makalintal, J., concurs in the result.
Castro, 7., is on leave.

Page 45 of 492

Endnotes:

1. Art. XII, Sec. 4 of the Constitution provides:

"No officer or employee in the Civil Service shall be removed or suspended except for
cause."cralaw virtua1aw library
2. Resolution No. 1053.
3. Answer, II, par. 2.
4. Ibid, III, par. 9.
5. De los Santos v. Mallare, 87 Phil. 289 (1950). This formulation is followed in Arrieta v.
Bellos, L-17162, Oct. 31, 1964, 12 SCRA 296; Corpus v. Cuaderno, Sr., L-23721, Mar. 31,
1965, 13 SCRA 591; Hernandez v. Villegas, L-17287, June 30, 1965, 14 SCRA 544; Cario v.
Agricultural Credit and Cooperative Financing Adm., L-19808, Sept. 29, 1966, 18 SCRA 183;
Piero v. Hechanova, L-22562, Oct. 22, 1966, 18 SCRA 417; Ingles v. Mutuc, L-20390, Nov.
29, 1968, 26 SCRA 171.
6. Ingles v. Mutuc, L-20390, Nov. 29, 1968, 26 SCRA 171 cited with approval in Ramos v.
Romualdez, L-27946, April 30, 1970.
7. 84 Phil. 740 (1949).
8. L-20390, Nov. 29, 1968, 26 SCRA 171.
9. Petitioner in his memorandum cites the following decisions promulgated by us: Lacson v.
Romero, 84 Phil. 740 (1949); De los Santos v. Mallare, 87 Phil. 289 (1950); Jener v. Borra, 93
Phil. 506 (1953); Rodriguez v. Del Rosario, 93 Phil. 1070 (1953); Miclat v. Ganaden, 108 Phil.
439 (1960); Garcia v. Lejano, L-12230, Aug. 6, 1960; Board of Directors v. Alandy, L-15391,
Oct. 31, 1960; Hernandez v. Villegas, L-17287, June 30, 1965, 14 SCRA 544.
10. L-23721, March 31, 1965, 13 SCRA 591.
11. Piero v. Hechanova, L-22562, Oct. 22, 1966, 18 SCRA 417 and Ferrer v. Hechanova, L24418, January 25, 1967, 19 SCRA 105.

Page 46 of 492

EN BANC
[G.R. No. 81954. August 8, 1989.]
CESAR Z. DARIO, Petitioner, v. HON. SALVADOR M. MISON, HON. VICENTE JAYME
and HON. CATALINO MACARAIG, JR., in their respective capacities as Commissioner
of Customs, Secretary of Finance, and Executive Secretary, Respondents.
[G.R. No. 81967 August 8, 1989]
VICENTE A. FERIA, JR., Petitioner, v. HON. SALVADOR M. MISON, HON. VICENTE
JAYME, and HON. CATALINO MACARAIG, JR., in their respective capacities as
Commissioner of Customs, Secretary of Finance, and Executive
Secretary, Respondents.
[G.R. No. 82023 August 8, 1989]
ADOLFO CASARENO, PACIFICO LAGLEVA, JULIAN C. ESPIRITU, DENNIS A.
AZARRAGA, RENATO DE JESUS, NICASIO C. GAMBOA, CORAZON RALLOS NIEVES,
FELICITACION R. GELUZ, LEODEGARIO H. FLORESCA, SUBAER PACASUM, ZENAIDA
LANARIA, JOSE B. ORTIZ, GLICERIO R. DOLAR, CORNELIO NAPA, PABLO B. SANTOS,
FERMIN RODRIGUEZ, DALISAY BAUTISTA, LEONARDO JOSE, ALBERTO LONTOK,
PORFIRIO TABINO, JOSE BARREDO, ROBERTO ARNALDO, ESTER TAN, PEDRO BAKAL,
ROSARIO DAVID, RODOLFO AFUANG, LORENZO CATRE, LEONCIA CATRE, ROBERTO
ABADA, Petitioners, v. COMMISSIONER SALVADOR M. MISON, COMMISSIONER,
BUREAU OF CUSTOMS, Respondent.
[G.R. No. 83737. August 8, 1989]
BENEDICTO L. AMASA and WILLIAM S. DIONISIO, Petitioners, v. PATRICIA A. STO.
TOMAS, in her capacity as Chairman of the Civil Service Commission and SALVADOR
MISON, in his capacity as Commissioner of the Bureau of Customs, Respondents.
[G.R. No. 85310. August 8, 1989.]
SALVADOR M. MISON, in his capacity as Commissioner of Customs, Petitioner, v.
CIVIL SERVICE COMMISSION, ABACA, SISINIO T., ABAD, ROGELIO C., ABADIANO,
JOSE P., ABCEDE, NEMECIO C., ABIOG, ELY F., ABLAZA, AURORA M., AGBAYANI,
NELSON I., AGRES, ANICETO, AGUILAR, FLOR, AGUILUCHO, MA. TERESA R.,
AGUSTIN, BONIFACIO T., ALANO, ALEX P., ALBA, MAXIMO F. JR., ALBANO, ROBERT
B., ALCANTARA, JOSE G., ALMARIO, RODOLFO F., ALVEZ, ROMUALDO R., AMISTAD,
RUDY M., AMOS, FRANCIS F., ANDRES, RODRIGO V., ANGELES, RICARDO S., ANOLIN,
MILAGROS H., AQUINO, PASCASIO E., ARABE, MELINDA M., ARCANGEL, AGUSTIN S.,
JR., ARPON, ULPIANO U., JR., ARREZA, ARTEMIO M., JR., ARROJO, ANTONIO P.,
ARVISU, ALEXANDER S., ASCAO, ANTONIO T., ASLAHON, JULAHON P., ASUNCION,
VICTOR R., ATANGAN, LORNA S., ATIENZA, ALEXANDER R., BACAL, URSULINO C.,
BAAGA, MARLOWE, Z., BANTA, ALBERTO T., BARREDO, JOSE B., BARROS, VICTOR
C., BARTOLOME, FELIPE A., BAYSAC, REYNALDO S., BELENO, ANTONIO B.,
BERNARDO, ROMEO D., BERNAS, MARCIANO S., BOHOL, AUXILIADOR G., BRAVO,

Page 47 of 492

VICTOR M., BULEG, BALILIS R., CALNEA, MERCEDES M., CALVO, HONESTO G.,
CAMACHO, CARLOS V., CAMPOS, RODOLFO C., CAPULONG, RODRIGO G., CARINGAL,
GRACIA Z., CARLOS, LORENZO B., CARRANTO, FIDEL U., CARUNGCONG, ALFREDO M.,
CASTRO, PATRICIA J., CATELO, ROGELIO B., CATURLA, MANUEL B., CENIZAL,
JOSEFINA F., CINCO, LUISITO, CONDE, JOSE C., JR., CORCUERA, FIDEL S., CORNETA,
VICENTE S., CORONADO, RICARDO S., CRUZ, EDUARDO S., CRUZ EDILBERTO A.,
CRUZ, EFIGENIA B., CRUZADO, MARCIAL C., CUSTODIO, RODOLFO M., DABON,
NORMA M., DALINDIN, EDNA MAE D., DANDAL, EDEN F., DATUHARON, SATA A.,
DAZO, GODOFREDO L., DE CASTRO, LEOPAPA, DE GUZMAN, ANTONIO A., DE
GUZMAN, RENATO E., DE LA CRUZ, AMADO A., JR., DE LA CRUZ, FRANCISCO C., DE LA
PENA, LEONARDO, DEL CAMPO, ORLANDO, DEL RIO, MAMERTO P., JR., DEMESA,
WILHELMINA T., DIMAKUTA, SALIC L., DIZON, FELICITAS A., DOCTOR, HEIDY M.,
DOLAR, GLICERIO R., DOMINGO, NICANOR J., DOMINGO, PERFECTO V., JR., DUAY,
JUANA G., DYSANGCO, RENATO F., EDILLOR, ALFREDO P., ELEVAZO, LEONARDO A.,
ESCUYOS, MANUEL M., JR., ESMERIA, ANTONIO E., ESPALDON, MA. LOURDES H.,
ESPINA, FRANCO A., ESTURCO, RODOLFO C., EVANGELINO, FERMIN I., FELIX,
ERNESTO G., FERNANDEZ, ANDREW M., FERRAREN, ANTONIO C., FERRERA,
WENCESLAO A., FRANCISCO, PELAGIO S., JR., FUENTES, RUDY L., GAGALANG,
RENATO V., GALANG, EDGARDO R., GAMBOA, ANTONIO C., GAN, ALBERTO R.,
GARCIA, GILBERT M., GARCIA, EDNA V., CARCIA, JUAN L., GAVIOLA, LILIAN V.,
GEMPARO, SEGUNDINA G., GOBENCIONG, FLORDELIZ B., GRATE, FREDERICK R.,
GREGORIO, LAURO P., GUARTICO, AMMON H., GUIANG, MYRNA N., GUINTO, DELFIN
C., HERNANDEZ, LUCAS A., HONRALES, LORETO N., HUERTO, LEOPOLDO H., HULAR,
LANNYROSS E., IBAEZ, ESTER C., ILAGAN, HONORATO C., INFANTE, REYNALDO C.,
ISAIS, RAY C., ISMAEL, HADJI AKRAM B., JANOLO, VIRGILIO M., JAVIER, AMADOR
L., JAVIER, ROBERTO S., JAVIER, WILLIAM R., JOVEN, MEMIA A., JULIAN, REYNALDO
V., JUMAMOY, ABUNDIO A., JUMAQUIAO, DOMINGO F., KAINDOY, PASCUAL B., JR.,
KOH, NANIE G., LABILLES, ERNESTO S., LABRADOR, WILFREDO M., LAGA,
BIENVENIDO M., LAGLEVA, PACIFICO Z., LAGMAN, EVANGELINE G., LAMPONG,
WILFREDO G., LANDICHO, RESTITUTO A., LAPITAN, CAMILO M., LAURENTE,
REYNALDO A., LICARTE, EVARISTO R., LIPIO, VICTOR O., LITTAUA, FRANKLIN Z.,
LOPEZ, MELENCIO L., LUMBA, OLIVIA R., MACAISA, BENITO T., MACAISA, ERLINDA
C., MAGAT, ELPIDIO, MAGLAYA, FERNANDO P., MALABANAN, ALFREDO C.,
MALIBIRAN, ROSITA D., MALIJAN, LAZARO V., MALLI, JAVIER M., MANAHAN, RAMON
S., MANUEL, ELPIDIO R., MARAVILLA, GIL B., MARCELO, GIL C., MARIAS, RODOLFO
V., MAROKET, JESUS C., MARTIN, NEMENCIO A., MARTINEZ, ROMEO M., MARTINEZ,
ROSELINA M., MATIBAG, ANGELINA G., MATUGAS, ERNESTO T., MATUGAS,
FRANCISCO T., MAYUGA, PORTIA E., MEDINA, NESTOR M., MEDINA, ROLANDO S.,
MENDAVIA, AVELINO I., MENDOZA, POTENCIANO G., MIL, RAY M., MIRAVALLES,
ANASTACIA L., MONFORTE, EUGENIO, JR., G., MONTANO, ERNESTO F., MONTERO,
JUAN M. III., MORALDE, ESMERALDO B., JR., MORALES, CONCHITA D.L., MORALES,
NESTOR P., MORALES, SHIRLEY S., MUNAR, JUANITA L., MUOZ, VICENTE R.,
MURILLO, MANUEL M., NACION, PEDRO R., NAGAL, HENRY N., NAPA, CORNELIO B.,
NAVARRO, HENRY L., NEJAL, FREDRICK E., NICOLAS, REYNALDO S., NIEVES, RUFINO
A., OLAIVAR, SEBASTIAN T., OLEGARIO, LEO Q., ORTEGA, ARLENE R., ORTEGA, JESUS
R., OSORIO, ABNER S., PAPIO, FLORENTINO T. II, PASCUA, ARNULFO A., PASTOR,
ROSARIO, PELAYO, ROSARIO L., PEA, AIDA C., PEREZ, ESPERIDION B., PEREZ,
JESUS BAYANI M., PRE, ISIDRO A., PRUDENCIADO, EULOGIA S., PUNZALAN,
LAMBERTO N., PURA, ARNOLD T., QUINONES, EDGARDO I., QUINTOS, AMADEO C.,

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JR., QUIRAY, NICOLAS C., RAMIREZ, ROBERTO P., RAADA, RODRIGO C., RARAS,
ANTONIO A., RAVAL, VIOLETA V., RAZAL, BETTY R., REGALA, PONCE F., REYES,
LIBERATO R., REYES, MANUEL E., REYES, NORMA Z., REYES, TELESFORO F., RIVERA,
ROSITA L., ROCES, ROBERTO V., ROQUE, TERESITA S., ROSANES, MARILOU M.,
ROSETE, ADAN I., RUANTO, REY CRISTO C., JR., SABLADA, PASCASIO G., SALAZAR
SILVERIA S., SALAZAR, VICTORIA A., SALIMBACOD, PERLITA C., SALMINGO,
LOURDES M., SANTIAGO, EMELITA B., SATINA, PORFIRIO C., SEKITO, COSME B., JR.,
SIMON, RAMON P., SINGSON, MELECIO C., SORIANO, ANGELO L., SORIANO,
MAGDALENA R., SUMULONG, ISIDRO L., JR., SUNICO, ABELARDO T., TABIJE, EMMA
B., TAN, RUDY GOROSPE, TAN, ESTER, S., TAN, JULITA S., TECSON, BEATRIZ B.,
TOLENTINO, BENIGNO A., TURINGAN, ENRICO T., JR., UMPA, ALI A., VALIC, LUCIO
E., VASQUEZ, NICANOR B., VELARDE, EDGARDO C., VERA, AVELINO A., VERAME,
OSCAR E., VIADO, LILIAN T., VIERNES, NAPOLEON K., VILLALON, DENNIS A.,
VILLAR, LUZ L., VILLALUZ, EMELITO V., ZATA, ANGEL A., JR., ACHARON, CRISTETO,
ALBA, RENATO B., AMON, JULITA C., AUSTRIA, ERNESTO C., CALO, RAYMUNDO M.,
CENTENO, BENJAMIN R., DE CASTRO, LEOPAPA C., DONATO, ESTELITA P., DONATO,
FELIPE S., FLORES, PEDRITO S., GALAROSA, RENATO, MALAWI, MAUYAG,
MONTENEGRO, FRANCISCO M., OMEGA, PETRONILO T., SANTOS, GUILLERMO F.,
TEMPLO, CELSO, VALDERAMA, JAIME B., and VALDEZ, NORA M., Respondents.
[G.R. No. 85335. August 8, 1989.]
FRANKLIN Z. LITTAUA, ADAN I. ROSETE, FRANCISCO T. MATUGAS, MA. J. ANGELINA
G. MATIBAG, LEODEGARDIO H. FLORESCA, LEONARDO A. DELA PEA, ABELARDO T.
SUNICO, MELENCIO L. LOPEZ, NEMENCIO A. MARTIN, RUDY M. AMISTAD, ERNESTO
T. MATUGAS, SILVERIA S. SALAZAR, LILLIAN V. GAVIOLA, MILAGROS ANOLIN, JOSE
B. ORTIZ, ARTEMIO ARREZA, JR., GILVERTO M. GARCIA, ANTONIO A. RARAS,
FLORDELINA B. GOBENCIONG, ANICETO AGRES, EDGAR Y. QUINONES, MANUEL B.
CATURLA, ELY F. ABIOG, RODRIGO C. RAADA, LAURO GREGORIO, ALBERTO I. GAN,
EDGARDO GALANG, RAY C. ISAIS, NICANOR B. VASQUEZ, MANUEL ESCUYOS, JR.,
ANTONIO B. BELENO, ELPIO R. MANUEL, AUXILIADOR C. BOHOL, LEONARDO
ELEVAZO, VICENTE S. CORNETA, Petitioners, v. COM. SALVADOR M. MISON/BUREAU
OF CUSTOMS and the CIVIL SERVICE COMMISSION, Respondents.
[G.R. No. 86241. August 8, 1989.]
SALVADOR M. MISON, in his capacity as Commissioner of Customs, Petitioner, v.
CIVIL SERVICE COMMISSION, SENEN S. DIMAGUILA, ROMEO P. ARABE, BERNARDO
S. QUINTONG, GREGORIO P. REYES, and ROMULO C. BADILLO, Respondents.
SYLLABUS
MELENCIO-HERRERA, J., dissenting opinion:chanrob1es virtual 1aw library
1. ADMINISTRATIVE LAW; CIVIL SERVICE ACT; REMOVAL OR SUSPENSION OF CIVIL SERVICE
OFFICER MUST BE FOR CAUSE; "FOR CAUSE" CONSTRUED. The canon for the removal or
suspension of a civil service officer or employee is that it must be FOR CAUSE. That means "a

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guarantee of both procedural and substantive due process. Basically, procedural due process
would require that suspension or dismissal come only after notice and hearing. Substantive
due process would require that suspension or dismissal be for cause.
2. ID.; ID.; ID.; GUARANTEE ENSHRINED IN THE CONSTITUTION. The guarantee of
removal FOR CAUSE is enshrined in Article IX-B, Section 2(3) of the 1987 Constitution, which
states that "No officer or employee of the civil service shall be removed or suspended except
FOR CAUSE provided by law."cralaw virtua1aw library
3. REMEDIAL LAW; SUPREME COURT; JUDGMENT; OBITER DICTUM, DEFINED. An obiter
dictum or dictum has been defined as a remark or opinion uttered, by the way. It is a
statement of the court concerning a question which was not directly before it (In re Hess, 23
A. 2d. 298, 301, 20 N.J. Misc. 12). It is language unnecessary to a decision, (a) ruling on an
issue not raised, or (an) opinion of a judge which does not embody the resolution or
determination of the court, and is made without argument or full consideration of the point
(Lawson v. US, 176 F2d 49, 51, 85 U.S. App. D.C. 167). It is an expression of opinion by the
court or judge on a collateral question not directly involved, (Crescent Ring Co. v. Travelers
Indemnity Co. 132 A. 106, 107, 102 N.J. Law 85) or not necessary for the decision (Du Bell v.
Union Central Life Ins. Co., 29, So. 2d 709, 712; 211 La. 167).
4. ID.; ID.; ID.; RESOLUTION OF THE ULTIMATE ISSUES, NOT AN OBITER. The ruling of
the Court, therefore, on the Constitutional issues presented, particularly, the lapse of the
period mandated by Proclamation No. 3, and the validity of EO 127, cannot be said to be mere
"obiter." They were ultimate issues directly before the Court, expressly decided in the course
of the consideration of the case, so that any resolution thereon must be considered as
authoritative precedent, and not a mere dictum (See Valli v. US, 94 F.2d
687 certiorari granted 58 S. Ct. 760, 303 U.S. 82 L. Ed. 1092; See also Weedin v. Tayokichi
Yamada 4 F. (2d) 455). Such resolution would not lose its value as a precedent just because
the disposition of the case was also made on some other ground.
5. ADMINISTRATIVE LAW; EXECUTIVE ORDER NO. 127; SEPARATION FROM OFFICE; RIGHT
TO BE INFORMED OF GROUND OF SEPARATION UNDER EXECUTIVE ORDER NO. 17,
DISPENSED WITH. The right granted by EO 17 to an employee to be informed of the ground
for his separation must be deemed to have been revoked by the repealing clause of EO 127
(Section 67) providing that "all laws, ordinances or parts thereof, which are inconsistent with
this Executive Order, are hereby repealed and modified accordingly."cralaw virtua1aw library
6. ID.; CIVIL SERVICE ACT; REMOVAL FROM CAREER SERVICE; TYPES OF REORGANIZATION.
The standards laid down are the "traditional" criteria for removal of employees from the
career service, e.g. valid cause, due notice and hearing, abolition of, or redundancy of offices.
Proclamation No. 3, on the other hand, effectuates the "progressive" type of reorganization
dictated by the exigencies of the historical and political upheaval at the time. The "traditional"
type is limited in scope. It is concerned with the individual approach where the particular
employee involved is charged administratively and where the requisites of notice and hearing
have to be observed. The "progressive" kind of reorganization, on the other hand, is the
collective way. It is wider in scope, and is the reorganization contemplated under Section 16.
7. ID.; ID.; ID.; RIGHTS AVAILABLE TO A REORGANIZED EMPLOYEE. A reorganized
employee is not without rights. His right lies in his past services, the entitlement to which

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must be provided for by law. EO 127 provides for the same in its Section 59, and so does
SECTION 16 when the latter specified that career civil service employees separated from the
service not for cause: "shall be entitled to appropriate separation pay and to retirement and
other benefits accruing to them under the laws of general application in force at the time of
their separation. In lieu thereof, at the option of the employees, they may be considered for
employment in the Government or in any of its subdivisions, instrumentalities, or agencies,
including government-owned or controlled corporations and their subsidiaries. This provision
also applies to career officers whose resignation, tendered in line with the existing policy, has
been accepted."cralaw virtua1aw library
8. ID.; ID.; RIGHT TO AN OFFICE OR EMPLOYMENT WITH GOVERNMENT, NOT A VESTED
RIGHT. The right to an office or to employment with government or any of its agencies is
not a vested property right, and removal therefrom will not support the question of due
process" (Yantsin v. Aberdeen, 54 Wash 2d 787, 345 P 2d 178). A civil service employee does
not have a constitutionally protected right to his position, which position is in the nature of a
public office, political in character and held by way of grant or privilege extended by
government; generally he has been held to have no property right or vested interest to which
due process guaranties extend (See Taylor v. Beckham 178 U. S. 548, 44 L Ed. 1187; Angilly
v. US (CA2 NY) 199 F 2d 642; People ex. rel. Baker v. Wilson, 39 III App 2d 443, 189 NE 2d
1; Kelliheller v. NY State Civil Service Com., 21 Misc 2d 1034, 194 NYS 2d 89).
DECISION
SARMIENTO, J.:
The Court writes finis to this controversy that has raged bitterly for the past several months. It
does so out of a legitimate presentiment of more suits reaching it as a consequence of the
government reorganization and the instability it has wrought on the performance and
efficiency of the bureaucracy. The Court is apprehensive that unless the final word is given
and the ground rules are settled, the issue will fester, and likely foment a constitutional crisis
for the nation, itself beset with grave and serious problems.chanrobles virtual lawlibrary
The facts are not in dispute.
On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING
A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING
THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION, AND PROVIDING FOR AN
ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION. Among other
things, Proclamation No. 3 provided:chanrob1es virtual 1aw library
SECTION 1. . . .
The President shall give priority to measures to achieve the mandate of the people
to:chanrob1es virtual 1aw library
(a) Completely reorganize the government, eradicate unjust and oppressive structures, and all

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iniquitous vestiges of the previous regime; 1

Pursuant thereto, it was also provided:chanrob1es virtual 1aw library
SECTION 1. In the reorganization of the government, priority shall be given to measures to
promote economy, efficiency, and the eradication of graft and corruption.
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution
shall continue in office until otherwise provided by proclamation or executive order or upon the
appointment and qualification of the successors, if such is made within a period of one year
from February 25, 1986.
SECTION 3. Any public officer or employee separated from the service as a result of the
organization effected under this Proclamation shall, if entitled under the laws then in force,
receive the retirement and other benefits accruing thereunder.
SECTION 4. The records, equipment, buildings, facilities and other properties of all
government offices shall be carefully preserved. In case any office or body is abolished or
reorganized pursuant to this Proclamation, its funds and properties shall be transferred to the
office or body to which its powers, functions and responsibilities substantially pertain. 2
Actually, the reorganization process started as early as February 25, 1986, when the
President, in her first act in office, called upon "all appointive public officials to submit their
courtesy resignation(s) beginning with the members of the Supreme Court." 3 Later on, she
abolished the Batasang Pambansa 4 and the positions of Prime Minister and Cabinet 5 under
the 1973 Constitution.
Since then, the President has issued a number of executive orders and directives reorganizing
various other government offices, a number of which, with respect to elected local officials,
has been challenged in this Court, 6 and two of which, with respect to appointed functionaries,
have likewise been questioned herein. 7
On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND
REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM
CONSTITUTION." Executive Order No. 17 recognized the "unnecessary anxiety and
demoralization among the deserving officials and employees" the ongoing government
reorganization had generated, and prescribed as "grounds for the separation/replacement of
personnel," the following:chanrob1es virtual 1aw library
SECTION 3. The following shall be the grounds for separation/replacement of
personnel:chanrob1es virtual 1aw library
1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service
Law;chanrobles virtual lawlibrary
2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as
determined by the Ministry Head concerned;
3) Gross incompetence or inefficiency in the discharge of functions;

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4) Misuse of public office for partisan political purposes; 5) Any other analogous ground
showing that the incumbent is unfit to remain in the service or his separation/replacement is
in the interest of the service. 8
On January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING
THE MINISTRY OF FINANCE." 9 Among other offices, Executive Order No. 127 provided for the
reorganization of the Bureau of Customs 10 and prescribed a new staffing pattern therefor.
Three days later, on February 2, 1987, 11 the Filipino people adopted the new Constitution.
On January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a
Memorandum, in the nature of "Guidelines on the Implementation of Reorganization Executive
Orders," 12 prescribing the procedure in personnel placement. It also provided:chanrob1es
virtual 1aw library
1. By February 28, 1988, all employees covered by Executive Order 127 and the grace period
extended to the Bureau of Customs by the President of the Philippines on reorganization shall
be:chanrob1es virtual 1aw library
a) informed of their re-appointment, or
b) offered another position in the same department or agency, or
c) informed of their termination. 13
On the same date, Commissioner Mison constituted a Reorganization Appeals Board charged
with adjudicating appeals from removals under the above Memorandum. 14 On January 26,
1988, Commissioner Mison addressed several notices to various Customs officials, in the tenor
as follows:chanrob1es virtual 1aw library
Sir:chanrob1es virtual 1aw library
Please be informed that the Bureau is now in the process of implementing the Reorganization
Program under Executive Order No. 127.
Pursuant to Section 59 of the same Executive Order, all officers and employees of the
Department of Finance, or the Bureau of Customs in particular, shall continue to perform their
respective duties and responsibilities in a hold-over capacity, and that those incumbents
whose positions are not carried in the new reorganization pattern, or who are not reappointed, shall be deemed separated from the service.chanrobles.com:cralaw:red
In this connection, we regret to inform you that your services are hereby terminated as of
February 28, 1988. Subject to the normal clearances, you may receive the retirement benefits
to which you may be entitled under existing laws, rules and regulations.
In the meantime, your name will be included in the consolidated list compiled by the Civil
Service Commission so that you may be given priority for future employment with the
Government as the need arises.

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Sincerely yours,
(Sgd) SALVADOR M. MISON
Commissioner 15
As far as the records will yield, the following were recipients of these notices:chanrob1es
virtual 1aw library
1. CESAR DARIO 30. LEONCIA CATRE
2. VICENTE FERIA, JR. 31. ROBERTO ABADA
3. ADOLFO CASARENO 32. ABACA SISINIO T.
4. PACIFICO LAGLEVA 33. ABAD, ROGELIO C.
5. JULIAN C. ESPIRITU 34. ABADIANO, JOSE P.
6. DENNIS A. AZARRAGA 35. ABCEDE, NEMECIO C.
7. RENATO DE JESUS 36. ABIOG, ELY F.
8. NICASIO C. GAMBOA 37. ABLAZA, AURORA M.
9. CORAZON RALLOS NIEVES 38. AGBAYANI, NELSON I.
10. FELICITACION R. GELUZ 39. AGRES, ANICETO.
11. LEODEGARIO H. FLORESCA 40. AGUILAR, FLOR
12. SUBAER PACASUM 41. AGUILUCHO, MA. TERESA R.
13. ZENAIDA LANARIA 42. AGUSTIN, BONIFACIO T.
14. JOSE B. ORTIZ 43. ALANO, ALEX P.
15. GLICERIO R. DOLAR 44. ALBA, MAXIMO F. JR.
16. CORNELIO NAPA 45. ALBANO ROBERT B.
17. PABLO B. SANTOS 46. ALCANTARA, JOSE G.
18. FERMIN RODRIGUEZ 47. ALMARIO, RODOLFO F.
19. DALISAY BAUTISTA 48. ALVEZ, ROMUALDO R.
20. LEONARDO JOSE 49. AMISTAD, RUDY M.

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21. ALBERTO LONTOK 50. AMOS, FRANCIS F.

22. PORFIRIO TABINO 51. ANDRES, RODRIGO V.
23. JOSE BARREDO 52. ANGELES, RICARDO S.
24. ROBERTO ARNALDO 53. ANOLIN, MILAGROS H.
25. ESTER TAN 54. AQUINO, PASCASIO E. L.
26. PEDRO BAKAL 55. ARABE, MELINDA M.
27. ROSARIO DAVID 56. ARCANGEL, AGUSTIN S., JR.
28. RODOLFO AFUANG 58. ARREZA, ARTEMIO M., JR.
29. LORENZO CATRE 59. ARROJO, ANTONIO P.
60. ARVISU, ALEXANDER S. 107. DE GUZMAN, ANTONIO A.
61. ASCAO, ANTONIO T. 108. DE GUZMAN, RENATO E.
62. ASLAHON, JULAHON P. 109. GAN, ALBERTO R.
63. ASUNCION, VICTOR. 110. DELA CRUZ, FRANCISCO C.
64. ATANGAN, LORNA S. 111. DE LA PEA, LEONARDO
65. ATIENZA, ALEXANDER. 112. DEL CAMPO, ORLANDO
66. BACAL, URSULINO C. 113. DEL RIO, MAMERTO P., JR.
67. BAAGA, MARLOWE Z. 114. DE MESA, WILHELMINA T.
68. BANTA, ALBERTO T. 115. DIMAKUTA, SALIC L.
69. BARROS, VICTOR C. 116. DIZON, FELICITAS A.
70. BARTOLOME, FELIPE A. 117. DOCTOR, HEIDY M.
71. BAYSAC, REYNALDO S. 118. DOMINGO, NICANOR J.
72. BELENO, ANTONIO B. 119. DOMINGO, PERFECTO V., JR.
73. BERNARDO, ROMEO D. 120. DUAY, JUANA G.
74. BERNAS, MARCIANO S. 121. DYSANGCO, RENATO F.

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75. BOHOL, AUXILIADOR G. 122. EDILLOR, ALFREDO P.

76. BRAVO, VICTOR M. 123. ELEVAZO, LEONARDO A.
77. BULEG, BALILIS R. 124. ESCUYOS, MANUEL M., JR.
78. CALNEA, MERCEDES M. 125. ESMERIA, ANTONIO E.
79. CALVO, HONESTO G. 126. ESPALDON, MA. LOURDES H.
80. CAMACHO, CARLOS V. 127. ESPINA, FRANCO A.
81. CAMPOS, RODOLFO C. 128. ESTURCO, RODOLFO C.
82. CAPULONG, RODRIGO G. 129. EVANGELINO, FERMIN I.
83. CARINGAL, GRACIA Z. 130. FELIX, ERNESTO G.
84. CARLOS, LORENZO B. 131. FERNANDEZ, ANDREW M.
85. CARRANTO, FIDEL U. 132. FERRAREN, ANTONIO C.
86. CARUNGCONG, ALFREDO M. 133. FERRERA, WENCESLAO A.
87. CASTRO, PATRICIA J. 134. FRANCISCO, PELAGIO S., JR.
88. CATELO, ROGELIO B. 135. FUENTES, RUDY L.
89. CATURLA, MANUEL B. 136. GAGALANG, RENATO V.
90. CENIZAL, JOSEFINA F. 137. GALANG, EDGARDO R.
91. CINCO, LUISITO 138. GAMBOA, ANTONIO C.
92. CONDE, JOSE C., JR. 139. GAN, ALBERTO R.
93. CORCUERA, FIDEL S. 140. GARCIA, GILBERT M.
94. CORNETA, VICENTE S. 141. GARCIA, EDNA V.
95. CORONADO, RICARDO S. 142. GARCIA, JUAN L.
98. CRUZ, EDUARDO S. 143. GAVIOLA, LILIAN V.
97. CRUZ, EDILBERTO A 144. GEMPARO, SEGUNDINA G.
98. CRUZ, EFIGENIA B. 145. GOBENCIONG, FLORDELIZ B.
99. CRUZADO, MARCIAL C. 146. GRATE, FREDERICK R.

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100. CUSTUDIO, RODOLFO M. 147. GREGORIO, LAURO P.

101. DABON, NORMA M. 148. GUARTICO, AMMON H.
102. DALINDIN, EDNA MAE D. 149. GUIANG, MYRNA N.
103. DANDAL, EDEN F. 150. GUINTO, DELFIN C.
104. DATUHARON, SATA A. 151. HERNANDEZ, LUCAS A.
105. DAZO, GODOFREDO L. 152. HONRALES, LORETO N.
106. DE CASTRO, LEOPAPA 153. HUERTO, LEOPOLDO H.
154. HULAR, LANNYROSS E. 201. MATUGAS, ERNESTO T.
155. IBAEZ, ESTER C. 202. MATUGAS, FRANCISCO T.
156. ILAGAN, HONORATO C. 203. MAYUGA, PORTIA E.
157. INFANTE, REYNALDO C. 204. MEDINA, NESTOR M.
158. ISAIS, RAY C. 205. MEDINA, ROLANDO S.
159. ISMAEL, HADJI AKRAM B. 206. MENDAVIA AVELINO I.
160. JANOLO, VIRGILIO M. 207. MENDOZA, POTENCIANO G.
161. JAVIER, AMADOR L. 208. MIL, RAY M.
162. JAVIER, ROBERTO S. 209. MIRAVALLES, ANASTACIA L.
163. JAVIER, WILLIAM R. 210. MONFORTE, EUGENIO, JR. G.
164. JOVEN, MEMIA A. 211. MONTANO, ERNESTO F.
165. JULIAN, REYNALDO V. 212. MONTERO, JUAN M. III
166. JUMAMOY, ABUNDIO A. 213. MORALDE, ESMERALDO B., JR.
167. JUMAQUIAO, DOMINGO F. 214. MORALES, CONCHITA D.L.
163. KAINDOY, PASCUAL B., JR. 215. MORALES, NESTOR P.
169. KOH, NANIE G. 216. MORALES, SHIRLEY S.
170. LABILLES, ERNESTO S. 217. MUNAR, JUANITA L.

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171. LABRADOR, WILFREDO M. 213. MUOZ, VICENTE R.

172. LAGA, BIENVENIDO M. 219. MURILLO, MANUEL M.
173. LAGMAN, EVANGELINE G. 220. NACION, PEDRO R.
174. LAMPONG, WILFREDO G. 221. NAGAL, HENRY N.
175. LANDICHO, RESTITUTO A. 222: NAVARRO, HENRY L.
176. LAPITAN, CAMILO M. 223. NEJAL, FREDRICK E.
177. LAURENTE, REYNALDO A. 224. NICOLAS, REYNALDO S.
178. LICARTE, EVARISTO R. 225. NIEVES, RUFINO A.
179. LIPIO, VICTOR O. 226. OLAIVAR, SEBASTIAN T.
180. LITTAUA, FRANKLIN Z. 227. OLEGARIO, LEO Q.
181. LOPEZ, MELENCIO L. 228. ORTEGA ARLENE R.
182. LUMBA OLIVIA R. 229. ORTEGA, JESUS R.
183. MACAISA BENITO T. 230. OSORIO, ABNER S.
184. MACAISA ERLINDA C. 231. PAPIO, FLORENTINO T. II
135. MAGAT, ELPIDIO 232. PASCUA, ARNULFO A.
136. MAGLAYA, FERNANDO P. 233. PASTOR, ROSARIO
137. MALIBIRAN, ALFREDO C. 234. PELAYO, ROSARIO L.
138. MALIBIRAN, ROSITA D. 235. PEA, AIDA C.
189. MALIJAN, LAZARO V. 236. PEREZ, ESPERIDION B.
190. MALLI, JAVIER M. 237. PEREZ, JESUS BAYANI M.
191. MANAHAN, RAMON S. 233. PEREZ, ISIDRO A.
192. MANUEL, ELPIDIO R. 239. PRUDENCIADO, EULOGIA S.
193. MARAVILLIA, GIL B. 240. PUNZALAN, LAMBERTO N.
194. MARCELO, GIL C. 241. PURA, ARNOLD T.
195. MARIAS, RODOLFO V. 242. QUINONES, EDGARDO I.

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196. MAROKET, JESUS C. 243. QUINTOS, AMADEO C., JR.

197. MARTIN, NEMENCIO A. 244. QUIRAY, NICOLAS C.
198. MARTINEZ, ROMEO M. 245. RAMIREZ, ROBERTO P.
199. MARTINEZ, ROSELINA M. 246. RANADA, RODRIGO C.
200. MATIBAG, ANGELINA G. 247. RARAS, ANTONIO A.
248. RAVAL, VIOLETA V. 280. TOLENTINO, BENIGNO A.
249. RAZAL, BETTY R. 281. TURINGAN, ENRICO T., JR.
250. REGALA, PONCE F. 282. UMPA, ALI A.
251. REYES, LIBERATO R. 283. VALIC, LUCIO E.
252. REYES, MANUEL E. 284. VASQUEZ, NICANOR B.
258. REYES, NORMA Z. 285. VELARDE, EDGARDO C.
254. REYES, TELESFORO F. 286. VERA, AVELINO A.
255. RIVERA, ROSITA L. 287. VERAME, OSCAR E.
256. ROCES, ROBERTO V. 288. VIADO, LILLIAN T.
257. ROQUE, TERESITA S. 289. VIERNES, NAPOLEON K.
258. ROSANES, MARILOU M. 290. VILLALON, DENNIS A.
259. ROSETE, ADAN I. 291. VILLAR, LUZ L.
260. RUANTO, REY CRISTO C., JR. 292. VILLALUZ, EMELITO V.
261. SABLADA, PASCASIO G. 293. ZATA, ANGEL A, JR.
262. SALAZAR, SILVERIA S. 294. ACHARON, CRISTETO
263. SALAZAR, VICTORIA A. 295. ALBA, RENATO B.
264. SALIMBACOD, PERLITA C. 296. AMON, JULITA C.
265. SALMINGO, LOURDES M. 297. AUSTRIA, ERNESTO C.
266. SANTIAGO, EMELITA B. 293. CALO, RAYMUNDO M.

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267. SATINA, PORFIRIO C. 299. CENTENO, BENJAMIN R.

268. SEKITO, COSME B., JR. 300. DONATO, ESTELITA P.
269. SIMON, RAMON P. 301. DONATO, FELIPE S.
270. SINGSON, MELECIO C. 302. FLORES, PEDRITO S.
271. SORIANO, ANGELO L. 303. GALAROSA, RENATO
272. SORIANO, MAGDALENA R. 304. MALAWI, MAUYAG
273. SUMULONG, ISIDORO L., JR. 305. MONTENEGRO, FRANCISCO M.
274. SUNICO, ABELARDO T. 306. OMEGA, PETRONILO T.
275. TABIJE, EMMA B. 307. SANTOS, GUILLERMO F.
276. TAN, RUDY GOROSPE 308. TEMPLO, CELSO
277. TAN, ESTER S. 309. VALDERAMA, JAIME B.
273. TAN, JULITA S. 310. VALDEZ, NORA M.
279. TECSON, BEATRIZ B.
Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the petitioner in G.R. No.
81967; Messrs. Adolfo Caserano, Pacifico Lagleva, Julian C. Espiritu, Dennis A. Azarraga,
Renato de Jesus, Nicasio C. Gamboa, Mesdames Corazon Rallos Nieves and Felicitacion R.
Geluz, Messrs. Leodegario H. Floresca, Subaer Pacasum, Ms. Zenaida Lanaria, Mr. Jose B.
Ortiz, Ms. Gliceria R. Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin Rodriguez, Ms. Dalisay
Bautista, Messrs. Leonardo Jose, Alberto Lontok, Porfirio Tabino, Jose Barredo, Roberto
Arnaldo, Ms. Ester Tan, Messrs. Pedro Bakal, Rosario David, Rodolfo Afuang, Lorenzo Catre,
Ms. Leoncia Catre, and Roberto Abada, are the petitioners in G.R. No. 82023; the last 279 16
individuals mentioned are the private respondents in G.R. No. 85310.chanrobles.com : virtual
law library
As far as the records will likewise reveal, 17 a total of 394 officials and employees of the
Bureau of Customs were given individual notices of separation. A number supposedly sought
reinstatement with the Reorganization Appeals Board while others went to the Civil Service
Commission. The first thirty one mentioned above came directly to this Court.
On June 30, 1988, the Civil Service Commission promulgated its ruling ordering the
reinstatement of the 279 employees, the 279 private respondents in G.R. No. 85310, the
dispositive portion of which reads as follows:chanrob1es virtual 1aw library
WHEREFORE, it is hereby ordered that:chanrob1es virtual 1aw library
1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the

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Bureau of Customs without loss of seniority rights;

2. Appellants be paid their back salaries reckoned from the dates of their illegal termination
based on the rates under the approved new staffing pattern but not lower than their former
salaries.
This action of the Commission should not, however, be interpreted as an exoneration of the
appellants from any accusation of wrongdoing and, therefore, their reappointments are
without prejudice to:chanrob1es virtual 1aw library
1. Proceeding with investigation of appellants with pending administrative cases, and where
investigations have been finished, to promptly render the appropriate decisions;chanrobles
virtual lawlibrary
2. The filing of appropriate administrative complaints against appellants with derogatory
reports or information if evidence so warrants.
SO ORDERED. 18
On July 15, 1988, Commissioner Mison, represented by the Solicitor General, filed a motion for
reconsideration. Acting on the motion, the Civil Service Commission, on September 20, 1988,
denied reconsideration. 19
On October 20, 1988, Commissioner Mison instituted certiorari proceedings with this Court,
docketed, as above-stated, as G.R. No. 85310 of this Court.
On November 16, 1988, the Civil Service Commission further disposed the appeal (from the
resolution of the Reorganization Appeals Board) of five more employees, holding as
follows:chanrob1es virtual 1aw library
WHEREFORE, it is hereby ordered that:chanrob1es virtual 1aw library
1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the
Bureau of Customs without loss of seniority rights; and
2. Appellants be paid their back salaries to be reckoned from the date of their illegal
termination based on the rates under the approved new staffing pattern but not lower than
their former salaries.
This action of the Commission should not, however, be interpreted as an exoneration of the
herein appellants from any accusation of any wrongdoing and therefore, their reappointments
are without prejudice to:chanrob1es virtual 1aw library
1. Proceeding with investigation of appellants with pending administrative cases, if any, and
where investigations have been finished, to promptly, render the appropriate decisions; and
2. The filing of appropriate administrative complaints against appellant with derogatory reports
or information, if any, and if evidence so warrants.

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SO ORDERED. 20
On January 6, 1989, Commissioner Mison challenged the Civil Service Commissions
Resolution in this Court; his petition has been docketed herein as G.R. No. 86241. The
employees ordered to be reinstated are Senen Dimaguila, Romeo Arabe, Bernardo Quintong,
Gregorio Reyes, and Romulo Badillo. 21
On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE SECURITY OF TENURE
OF CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT
REORGANIZATION," 22 was signed into law. Under Section 7, thereof:chanrob1es virtual 1aw
library
Sec. 9. All officers and employees who are found by the Civil Service Commission to have
been separated in violation of the provisions of this Act, shall be ordered reinstated or
reappointed as the case may be without loss of seniority and shall be entitled to full pay for
the period of separation. Unless also separated for cause, all officers and employees, including
casuals and temporary employees, who have been separated pursuant to reorganization shall,
if entitled thereto, be paid the appropriate separation pay and retirement and other benefits
under existing laws within ninety (90) days from the date of the effectivity of their separation
or from the date of the receipt of the resolution of their appeals as the case may be: Provided,
That application for clearance has been filed and no action thereon has been made by the
corresponding department or agency. Those who are not entitled to said benefits shall be paid
a separation gratuity in the amount equivalent to one (1) month salary for every year of
service. Such separation pay and retirement benefits shall have priority of payment out of the
savings of the department or agency concerned. 23
On June 23, 1988, Benedicto Amasa and William Dionisio, customs examiners appointed by
Commissioner Mison pursuant to the ostensible reorganization subject of this controversy,
petitioned the Court to contest the validity of the statute. The petition is docketed as G.R. No.
83737.
On October 21, 1988, thirty-five more Customs officials whom the Civil Service Commission
had ordered reinstated by its June 30, 1988 Resolution filed their own petition to compel the
Commissioner of Customs to comply with the said Resolution. The petition is docketed as G.R.
No. 85335.chanrobles lawlibrary : rednad
On November 29, 1988, we resolved to consolidate all seven petitions.
On the same date, we resolved to set the matter for hearing on January 12, 1989. At the said
hearing, the parties, represented by their counsels (a) retired Justice Ruperto Martin; (b)
retired Justice Lino Patajo; (c) former Dean Froilan Bacungan; (d) Atty. Lester Escobar; (e)
Atty. Faustino Tugade; and (f) Atty. Alexander Padilla, presented their arguments. Solicitor
General Francisco Chavez argued on behalf of the Commissioner of Customs (except in G.R.
85335, in which he represented the Bureau of Customs and the Civil Service Commission).
Former Senator Ambrosio Padilla also appeared and argued as amicus curiae. Thereafter, we
resolved to require the parties to submit their respective memoranda which they did in due
time.
There is no question that the administration may validly carry out a government

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reorganization insofar as these cases are concerned, the reorganization of the Bureau of
Customs by mandate not only of the Provisional Constitution, supra, but also of the various
Executive Orders decreed by the Chief Executive in her capacity as sole lawmaking authority
under the 1986-1987 revolutionary government. It should also be noted that under the
present Constitution, there is a recognition, albeit implied, that a government reorganization
may be legitimately undertaken, subject to certain conditions. 24
The Court understands that the parties are agreed on the validity of a reorganization per se,
the only question being, as shall be later seen: What is the nature and extent of this
government reorganization?
The Court disregards the questions raised as to procedure, failure to exhaust administrative
remedies, the standing of certain parties to sue, 25 and other technical objections, for two
reasons," [b]ecause of the demands of public interest, including the need for stability in the
public service," 26 and because of the serious implications of these cases on the
administration of the Philippine civil service and the rights of public servants.
The urgings in G.R. Nos. 85335 and 85310, that the Civil Service Commissions Resolution
dated June 30, 1988 had attained a character of finality for failure of Commissioner Mison to
apply for judicial review or ask for reconsideration seasonably under Presidential Decree No.
807, 27 or under Republic Act No. 6656, 28 or under the Constitution, 29 are likewise
rejected. The records show that the Bureau of Customs had until July 15, 1988 to ask for
reconsideration or come to this Court pursuant to Section 39 of Presidential Decree No. 807.
The records likewise show that the Solicitor General filed a motion for reconsideration on July
15, 1988. 30 The Civil Service Commission issued its Resolution denying reconsideration on
September 20, 1988; a copy of this Resolution was received by the Bureau on September 23,
1988. 31 Hence the Bureau had until October 23, 1988 to elevate the matter on certiorari to
this Court. 32 Since the Bureaus petition was filed on October 20, 1988, it was filed on time.
We reject, finally, contentions that the Bureaus petition (in G.R. 85310) raises no
jurisdictional questions, and is therefore bereft of any basis as a petition for certiorari under
Rule 65 of the Rules of Court. 33 We find that the questions raised in Commissioner Misons
petition (in G.R. 85310) are, indeed, proper for certiorari, if by jurisdictional questions" we
mean questions having to do with "an indifferent disregard of the law, arbitrariness and
caprice, or omission to weigh pertinent considerations, a decision arrived at without rational
deliberation," 34 as distinguished from questions that require "digging into the merits and
unearthing errors of judgment" 35 which is the office, on the other hand, of review under Rule
45 of the said Rules. What cannot be denied is the fact that the act of the Civil Service
Commission of reinstating hundreds of Customs employees Commissioner Mison had
separated, has implications not only on the entire reorganization process decreed no less than
by the Provisional Constitution, but on the Philippine bureaucracy in general; these
implications are of such a magnitude that it cannot be said that assuming that the Civil
Service Commission erred the Commission committed a plain "error of judgment" that
Aratuc says cannot be corrected by the extraordinary remedy of certiorari or any special civil
action. We reaffirm the teaching of Aratuc as regards recourse to this Court with respect to
rulings of the Civil Service Commission which is that judgments of the Commission may be
brought to the Supreme Court through certiorari alone, under Rule 65 of the Rules of Court.
In Aratuc, we declared:chanrob1es virtual 1aw library

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It is once evident from these constitutional and statutory modifications that there is a definite
tendency to enhance and invigorate the role of the Commission on Elections as the
independent constitutional body charged with the safeguarding of free, peaceful and honest
elections. The framers of the new Constitution must be presumed to have definite knowledge
of what it means to make the decisions, orders and rulings of the Commission "subject to
review by the Supreme Court." And since instead of maintaining that provision intact, it
ordained that the Commissions actuations be instead "brought to the Supreme Court
on certiorari, We cannot insist that there was no intent to change the nature of the remedy,
considering that the limited scope of certiorari, compared to a review, is well known in
remedial law. 36
We observe no fundamental difference between the Commission on Elections and the Civil
Service Commission (or the Commission on Audit for that matter) in terms of the
constitutional intent to leave the constitutional bodies alone in the enforcement of laws
relative to elections, with respect to the former, and the civil service, with respect to the latter
(or the audit of government accounts, with respect to the Commission on Audit). As the poll
body is the "sole judge" 37 of all election cases, so is the Civil Service Commission the single
arbiter of all 5 controversies pertaining to the civil service.
It should also be noted that under the new Constitution, as under the 1973 Charter, "any
decision, order, or ruling of each Commission may be brought to the Supreme Court
on certiorari," 38 which, as Aratuc tells us, "technically connotes something less than saying
that the same shall be subject to review by the Supreme Court," 39 which in turn suggests
an appeal by petition for review under Rule 45. Therefore, our jurisdiction over cases
emanating from the Civil Service Commission is limited to complaints of lack or excess of
jurisdiction or grave abuse of discretion tantamount to lack or excess of jurisdiction,
complaints that justify certiorari under Rule 65.chanroblesvirtual|awlibrary
While Republic Act No. 6656 states that judgments of the Commission are "final and
executory" 40 and hence, unappealable, under Rule 65, certiorari precisely lies in the absence
of an appeal. 41
Accordingly, we accept Commissioner Misons petition (G.R. No. 85310) which clearly charges
the Civil Service Commission with grave abuse of discretion, a proper subject of certiorari,
although it may not have so stated in explicit terms.
As to charges that the said petition has been filed out of time, we reiterate that it has been
filed seasonably. It is to be stressed that the Solicitor General had thirty days from September
23, 1988 (the date the Resolution, dated September 20, 1988, of the Civil Service
Commission, denying reconsideration, was received) to commence the
instant certiorari proceedings. As we stated, under the Constitution, an aggrieved party has
thirty days within which to challenge "any decision, order, or ruling" 42 of the Commission. To
say that the period should be counted from the Solicitors receipt of the main Resolution,
dated June 30, 1988, is to say that he should not have asked for reconsideration. But to say
that is to deny him the right to contest (by a motion for reconsideration) any ruling, other
than the main decision, when, precisely, the Constitution gives him such a right. That is also
to place him at a "no-win" situation because if he did not move for a reconsideration, he would
have been faulted for demanding certiorari too early, under the general rule that a motion for

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reconsideration should preface a resort to a special civil action. 43 Hence, we must reckon the
thirty-day period from receipt of the order of denial.chanroblesvirtuallawlibrary
We come to the merits of these cases.
G.R. Nos. 81954, 81967, 82023, and 85335:chanrob1es virtual 1aw library
The Case for the Employees
The petitioner in G.R. No. 81954, Cesar Dario, was one of the Deputy Commissioners of the
Bureau of Customs until his relief on orders of Commissioner Mison on January 26, 1988. In
essence, he questions the legality of his dismissal, which he alleges was upon the authority of
Section 59 of Executive Order No. 127, supra, hereinbelow reproduced as follows:chanrob1es
virtual 1aw library
SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers and
employees of the Ministry shall, in a holdover capacity, continue to perform their respective
duties and responsibilities and receive the corresponding salaries and benefits unless in the
meantime they are separated from government service pursuant to Executive Order No. 17
(1986) or Article III of the Freedom Constitution.
The new position structure and staffing pattern of the Ministry shall be approved and
prescribed by the Minister within one hundred twenty (120) days from the approval of this
Executive Order and the authorized positions created hereunder shall be filled with regular
appointments by him or by the President, as the case may be. Those incumbents whose
positions are not included therein or who are not reappointed shall be deemed separated from
the service. Those separated from the service shall receive the retirement benefits to which
they may be entitled under existing laws, rules and regulations. Otherwise, they shall be paid
the equivalent of one month basic salary for every year of service, or the equivalent nearest
fraction thereof favorable to them on the basis of highest salary received but in no case shall
such payment exceed the equivalent of 12 months salary.
No court or administrative body shall issue any writ of preliminary injunction or restraining
order to enjoin the separation/replacement of any officer or employee effected under this
Executive Order. 44
a provision he claims the Commissioner could not have legally invoked. He avers that he could
not have been legally deemed to be an" [incumbent] whose [position] [is] not included therein
or who [is] not reappointed" 45 to justify his separation from the service. He contends that
neither the Executive Order (under the second paragraph of the section) nor the staffing
pattern proposed by the Secretary of Finance 46 abolished the office of Deputy Commissioner
of Customs, but, rather, increased it to three. 47 Nor can it be said, so he further maintains,
that he had not been "reappointed" 48 (under the second paragraph of the section) because"
[r]eappointment therein presupposes that the position to which it refers is a new one in lieu of
that which has been abolished or although an existing one, has absorbed that which has been
abolished." 49 He claims, finally, that under the Provisional Constitution, the power to dismiss
public officials without cause ended on February 25, 1987, 50 and that thereafter, public
officials enjoyed security of tenure under the provisions of the 1987 Constitution. 51

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Like Dario, Vicente Feria, the petitioner in G.R. No. 81967, was a Deputy Commissioner at the
Bureau until his separation directed by Commissioner Mison. And like Dario, he claims that
under the 1987 Constitution, he has acquired security of tenure and that he cannot be said to
be covered by Section 59 of Executive Order No. 127, having been appointed on April 22,
1986 during the effectivity of the Provisional Constitution. He adds that under Executive
Order No. 39, "ENLARGING THE POWERS AND FUNCTIONS OF THE COMMISSIONER OF
CUSTOMS," 52 the Commissioner of Customs has the power" [t]o appoint all Bureau
personnel, except those appointed by the President," 53 and that his position, which is that of
a Presidential appointee, is beyond the control of Commissioner Mison for purposes of
reorganization.
The petitioners in G.R. No. 82023, collectors and examiners in various ports of the Philippines,
say, on the other hand, that the purpose of reorganization is to end corruption at the Bureau
of Customs and that since there is no finding that they are guilty of corruption, they cannot be
validly dismissed from the service.chanrobles law library
The Case for Commissioner Mison
In his comments, the Commissioner relies on this Courts resolution in Jose v. Arroyo, 54 in
which the following statement appears in the last paragraph thereof:chanrob1es virtual 1aw
library
The contention of petitioner that Executive Order No. 127 is violative of the provision of the
1987 Constitution guaranteeing career civil service employees security of tenure overlooks the
provisions of Section 16, Article XVIII (Transitory Provisions) which explicitly authorize the
removal of career civil service employees "not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the
ratification of this Constitution." By virtue of said provision, the reorganization of the Bureau of
Customs under Executive Order No. 127 may continue even after the ratification of the
Constitution, and career civil service employees may be separated from the service without
cause as a result of such reorganization. 55
For this reason, Mison posits, claims of violation of security of tenure are allegedly no defense.
He further states that the deadline prescribed by the Provisional Constitution (February 25,
1987) has been superseded by the 1987 Constitution, specifically, the transitory provisions
thereof, 56 which allows a reorganization thereafter (after February 25, 1987) as this very
Court has so declared in Jose v. Arroyo. Mison submits that contrary to the employees
argument, Section 59 of Executive Order No. 127 is applicable (in particular, to Dario and
Feria), in the sense that retention in the Bureau, under the Executive Order, depends on either
retention of the position in the new staffing pattern or reappointment of the incumbent, and
since the dismissed employees had not been reappointed, they had been considered legally
separated. Moreover, Mison proffers that under Section 59 incumbents are considered on
holdover status, "which means that all those positions were considered vacant." 57 The
Solicitor General denies the applicability of Palma-Fernandez v. De la Paz 58 because that case
supposedly involved a mere transfer and not a separation. He rejects, finally the force and
effect of Executive Order Nos. 17 and 39 for the reason that Executive Order No. 17, which
was meant to implement the Provisional Constitution, 59 had ceased to have force and effect
upon the ratification of the 1987 Constitution, and that, under Executive Order No. 39, the
dismissals contemplated were "for cause" while the separations now under question were "not

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for cause and were a result of government reorganization decreed by Executive Order No.
127. Anent Republic Act No. 6656, he expresses doubts on the constitutionality of the grant of
retroactivity therein (as regards the reinforcement of security of tenure) since the new
Constitution clearly allows reorganization after its effectivity.chanroblesvirtual|awlibrary
G.R. Nos. 85310 and 86241
The Position of Commissioner Mison
Commissioners twin petitions are direct challenges to three rulings of the Civil Service
Commission: (1) the Resolution, dated June 30, 1988, reinstating the 265 customs employees
above-stated; (2) the Resolution, dated September 20, 1988, denying reconsideration; and
(3) the Resolution, dated November 16, 1988, reinstating five employees. The Commissioners
arguments are as follows:chanrob1es virtual 1aw library
1. The ongoing government reorganization is in the nature of a "progressive" 60
reorganization "impelled by the need to overhaul the entire government bureaucracy" 61
following the people power revolution of 1986;
2. There was faithful compliance by the Bureau of the various guidelines issued by the
President, in particular, as to deliberation, and selection of personnel for appointment under
the new staffing pattern;
3. The separated employees have been, under Section 59 of Executive Order No. 127, on
mere holdover standing, "which means that all positions are declared vacant;" 62
4. Jose v. Arroyo has declared the validity of Executive Order No. 127 under the transitory
provisions of the 1987 Constitution;
5. Republic Act No. 6656 is of doubtful constitutionality.
The Ruling of the Civil Service Commission
The position of the Civil Service Commission is as follows:chanrob1es virtual 1aw library
1. Reorganizations occur where there has been a reduction in personnel or redundancy of
functions; there is no showing that the reorganization in question has been carried out for
either purpose on the contrary, the dismissals now disputed were carried out by mere
service of notices;
2. The current Customs reorganization has not been made according to Malacaang
guidelines; information on file with the Commission shows that Commissioner Mison has been
appointing unqualified personnel;
3. Jose v. Arroyo, in validating Executive Order No. 127, did not countenance illegal
removals;chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
4. Republic Act No. 6656 protects security of tenure in the course of reorganizations.

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The Courts Ruling

Reorganization, Fundamental Principles of .
I.
The core provision of law involved is Section 16 Article XVIII, of the 1987 Constitution. We
quote:chanrob1es virtual 1aw library
Sec. 16. Career civil service employees separated from the service not for cause but as a
result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the
reorganization following the ratification of this Constitution shall be entitled to appropriate
separation pay and to retirement and other benefits accruing to them under the laws of
general application in force at the time of their separation. In lieu thereof, at the option of the
employees, they may be considered for employment in the Government or in any of its
subdivisions, instrumentalities, or agencies, including government-owned or controlled
corporations and their subsidiaries. This provision also applies to career officers whose
resignation, tendered in line with the existing policy, had been accepted. 63
The Court considers the above provision critical for two reasons: (1) It is the only provision
insofar as it mentions removals not for cause that would arguably support the challenged
dismissals by mere notice, and (2) It is the single existing law on reorganization after the
ratification of the 1987 Charter, except Republic Act No. 6656, which came much later, on
June 10, 1988. [Nota bene: Executive Orders No. 116 (covering the Ministry of Agriculture &
Food), 117 (Ministry of Education, Culture & Sports), 119 (Health), 120 (Tourism), 123 (Social
Welfare & Development), 124 (Public Works & Highways), 125 (Transportation &
Communications), 126 (Labor & Employment), 127 (Finance), 128 (Science & Technology),
129 (Agrarian Reform), 131 (Natural Resources), 132 (Foreign Affairs), and 133 (Trade &
Industry) were all promulgated on January 30, 1987, prior to the adoption of the Constitution
on February 2, 1987]. 64
It is also to be observed that unlike the grants of power to effect reorganizations under the
past Constitutions, the above provision comes as a mere recognition of the right of the
Government to reorganize its offices, bureaus, and instrumentalities. Under Section 4, Article
XVI, of the 1935 Constitution:chanrob1es virtual 1aw library
Section 4. All officers and employees in the existing Government of the Philippine Islands shall
continue in office until the Congress shall provide otherwise, but all officers whose
appointments are by this Constitution vested in the President shall vacate their respective
office(s) upon the appointment and qualification of their successors, if such appointment is
made within a period of one year from the date of the inauguration of the Commonwealth of
the Philippines. 65
Under Section 9, Article XVII, of the 1973 Charter:chanrob1es virtual 1aw library
Section 9. All officials and employees in the existing Government of the Republic of the
Philippines shall continue in office until otherwise provided by law or decreed by the incumbent

Page 68 of 492

President of the Philippines, but all officials whose appointments are by this Constitution
vested in the Prime Minister shall vacate their respective offices upon the appointment and
qualification of their successors. 66
The Freedom Constitution is, as earlier seen, couched in similar language:chanrob1es virtual
1aw library
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution
shall continue in office until otherwise provided by proclamation or executive order or upon the
appointment and qualification of their successors, if such is made within a period of one year
from February 25, 1986. 67
Other than references to "reorganization following the ratification of this Constitution," there is
no provision for "automatic" vacancies under the 1987 Constitution.
Invariably, transition periods are characterized by provisions for "automatic" vacancies. They
are dictated by the need to hasten the passage from the old to the new Constitution free from
the "fetters" of due process and security of tenure.chanrobles virtual lawlibrary
At this point, we must distinguish removals from separations arising from abolition of office
(not by virtue of the Constitution) as a result of reorganization carried out by reason of
economy or to remove redundancy of functions. In the latter case, the Government is obliged
to prove good faith. 68 In case of removals undertaken to comply with clear and explicit
constitutional mandates, the Government is not hard put to prove anything, plainly and simply
because the Constitution allows it.
Evidently, the question is whether or not Section 16 of Article XVIII of the 1987 Constitution is
a grant of a license upon the Government to remove career public officials it could have validly
done under an "automatic" -vacancy-authority and to remove them without rhyme or reason.
As we have seen, since 1935, transition periods have been characterized by provisions for
"automatic" vacancies. We take the silence of the 1987 Constitution on this matter as a
restraint upon the Government to dismiss public servants at a moments notice.
What is, indeed, apparent is the fact that if the present Charter envisioned an "automatic"
vacancy, it should have said so in clearer terms, as its 1935, 1973, and 1986 counterparts had
so stated.
The constitutional "lapse" means either one of two things: (1) The Constitution meant to
continue the reorganization under the prior Charter (of the Revolutionary Government), in the
sense that the latter provides for "automatic" vacancies, or (2) It meant to put a stop to those
"automatic" vacancies. By itself, however, it is ambiguous, referring as it does to two stages of
reorganization the first, to its conferment or authorization under Proclamation No. 3
(Freedom Charter) and the second, to its implementation on its effectivity date (February 2,
1987). But as we asserted, if the intent of Section 16 of Article XVIII of the 1987 Constitution
were to extend the effects of reorganization under the Freedom Constitution, it should have
said so in clear terms. It is illogical why it should talk of two phases of reorganization when it
could have simply acknowledged the continuing effect of the first
reorganization.chanroblesvirtualawlibrary

Page 69 of 492

Second, plainly the concern of Section 16 is to ensure compensation for "victims" of

constitutional revamps whether under the Freedom or existing Constitution and only
secondarily and impliedly, to allow reorganization. We turn to the records of the Constitutional
Commission:chanrob1es virtual 1aw library
INQUIRY OF MR. PADILLA
On the query of Mr. Padilla whether there is a need for a specific reference to Proclamation No.
3 and not merely state "result of the reorganization following the ratification of this
Constitution", Mr. Suarez, on behalf of the Committee, replied that it is necessary, inasmuch
as there are two stages of reorganization covered by the Section.
Mr. Padilla pointed out that since the proposals of the Commission on Government
Reorganization have not been implemented yet, it would be better to use the phrase
"reorganization before or after the ratification of the Constitution" to simplify the Section. Mr.
Suarez instead suggested the phrase "as a result of the reorganization effected before or after
the ratification of the Constitution" on the understanding that the provision would apply to
employees terminated because of the reorganization pursuant to Proclamation No. 3 and even
those affected by the reorganization during the Marcos regime. Additionally, Mr. Suarez
pointed out that it is also for this reason that the Committee specified the two Constitutions
the Freedom Constitution and the 1986 [1987] Constitution. 69
Simply, the provision benefits career civil service employees separated from the service. And
the separation contemplated must be due to or the result of (1) the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986, (2) the reorganization from February 2, 1987, and
(3) the resignations of career officers tendered in line with the existing policy and which
resignations have been accepted. The phrase "not for cause" is clearly and primarily
exclusionary, to exclude those career civil service employees separated "for cause." In other
words, in order to be entitled to the benefits granted under Section 16 of Article XVIII of the
Constitution of 1987, two requisites, one negative and the other positive, must concur, to
wit:chanrob1es virtual 1aw library
1. the separation must not be for cause, and
2. the separation must be due to any of the three situations mentioned above.
By its terms, the authority to remove public officials under the Provisional Constitution ended
on February 25, 1987, advanced by jurisprudence to February 2, 1987. 70 It can only mean,
then, that whatever reorganization is taking place is upon the authority of the present Charter,
and necessarily, upon the mantle of its provisions and safeguards. Hence, it can not be
legitimately stated that we are merely continuing what the revolutionary Constitution of the
Revolutionary Government had started. We are through with reorganization under the
Freedom Constitution the first stage. We are on the second stage that inferred from the
provisions of Section 16 of Article XVIII of the permanent basic
document.chanroblesvirtuallawlibrary:red
This is confirmed not only by the deliberations of the Constitutional Commission, supra, but is
apparent from the Charters own words. It also warrants our holding in Esguerra and Palma-

Page 70 of 492

Fernandez, in which we categorically declared that after February 2, 1987, incumbent officials
and employees have acquired security of tenure, which is not a deterrent against separation
by reorganization under the quondam fundamental law.
Finally, there is the concern of the State to ensure that this reorganization is no "purge" like
the execrated reorganizations under martial rule. And, of course, we also have the democratic
character of the Charter itself.
Commissioner Mison would have had a point, insofar as he contends that the reorganization is
open-ended ("progressive"), had it been a reorganization under the revolutionary authority,
specifically of the Provisional Constitution. For then, the power to remove government
employees would have been truly wide-ranging and limitless, not only because Proclamation
No. 3 permitted it, but because of the nature of revolutionary authority itself, its totalitarian
tendencies, and the monopoly of power in the men and women who wield it.
What must be understood, however, is that notwithstanding her immense revolutionary
powers, the President was, nevertheless, magnanimous in her rule. This is apparent from
Executive Order No. 17, which established safeguards against the strong arm and ruthless
propensity that accompanies reorganizations notwithstanding the fact that removals arising
therefrom were "not for cause," and in spite of the fact that such removals would have been
valid and unquestionable. Despite that, the Chief Executive saw, as we said, the "unnecessary
anxiety and demoralization" in the government rank and file that reorganization was causing,
and prescribed guidelines for personnel action. Specifically, she said on May 28,
1986:chanrob1es virtual 1aw library
WHEREAS, in order to obviate unnecessary anxiety and demoralization among the deserving
officials and employees, particularly in the career civil service, it is necessary to prescribe the
rules and regulations for implementing the said constitutional provision to protect career civil
servants whose qualifications and performance meet the standards of service demanded by
the New Government, and to ensure that only those found corrupt, inefficient and undeserving
are separated from the government service; 71
Noteworthy is the injunction embodied in the Executive Order that dismissals should be made
on the basis of findings of inefficiency, graft, and unfitness to render public service. **
The Presidents Memorandum of October 14, 1987 should furthermore be considered. We
quote, in part:chanrob1es virtual 1aw library
Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that
there will be no further lay-offs this year of personnel as a result of the government
reorganization. 72
Assuming, then, that this reorganization allows removals "not for cause" in a manner that
would have been permissible in a revolutionary setting as Commissioner Mison so purports, it
would seem that the Commissioner would have been powerless, in any event, to order
dismissals at the Customs Bureau left and right. Hence, even if we accepted his "progressive"
reorganization theory, he would still have to come to terms with the Chief Executives
subsequent directives moderating the revolutionary authoritys plenary power to separate
government officials and employees.chanrobles law library : red

Page 71 of 492

Reorganization under the 1987 Constitution, Nature, Extent, and Limitations of; Jose v.
Arroyo, clarified.
The controversy seems to be that we have, ourselves, supposedly extended the effects of
government reorganization under the Provisional Constitution to the regime of the 1987
Constitution. Jose v. Arroyo 73 is said to be the authority for this argument. Evidently, if
Arroyo indeed so ruled, Arroyo would be inconsistent with the earlier pronouncement of
Esguerra and the later holding of Palma-Fernandez. The question, however, is: Did Arroyo, in
fact, extend the effects of reorganization under the revolutionary Charter to the era of the new
Constitution?
There are a few points about Arroyo that have to be explained. First, the opinion expressed
therein that" [b]y virtue of said provision the reorganization of the Bureau of Customs under
Executive Order No. 127 may continue even after the ratification of this constitution and
career civil service employees may be separated from the service without cause as a result of
such reorganization" 74 is in the nature of an obiter dictum. We dismissed Joses petition 75
primarily because it was "clearly premature, speculative, and purely anticipatory, based
merely on newspaper reports which do not show any direct or threatened injury, "76 it
appearing that the reorganization of the Bureau of Customs had not been, then, set in motion.
Jose therefore had no cause for complaint, which was enough basis to dismiss the petition.
The remark anent separation "without cause" was therefore not necessary for the disposition
of the case. In Morales v. Paredes, 77 it was held that an obiter dictum "lacks the force of an
adjudication and should not ordinarily be regarded as such." 78
Secondly, Arroyo is an unsigned resolution while Palma-Fernandez is a full-blown decision,
although both are en banc cases. While a resolution of the Court is no less forceful than a
decision, the latter has a special weight.
Thirdly, Palma-Fernandez v. De la Paz comes as a later doctrine. (Jose v. Arroyo was
promulgated on August 11, 1987 while Palma-Fernandez was decided on August 31, 1987.) It
is well-established that a later judgment supersedes a prior one in case of an
inconsistency.chanrobles.com.ph : virtual law library
As we have suggested, the transitory provisions of the 1987 Constitution allude to two stages
of the reorganization, the first stage being the reorganization under Proclamation No. 3
which had already been consummated the second stage being that adverted to in the
transitory provisions themselves which is underway. Hence, when we spoke, in Arroyo, of
reorganization after the effectivity of the new Constitution, we referred to the second stage of
the reorganization. Accordingly, we cannot be said to have carried over reorganization under
the Freedom Constitution to its 1987 counterpart.
Finally, Arroyo is not necessarily incompatible with Palma-Fernandez (or Esguerra).
As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as
stern as reorganization under the prior Charter. Whereas the latter, sans the Presidents
subsequently imposed constraints, envisioned a purgation, the same cannot be said of the
reorganization inferred under the new Constitution because, precisely, the new Constitution
seeks to usher in a democratic regime. But even if we concede ex gratia argumenti that

Page 72 of 492

Section 16 is an exception to due process and no-removal- "except for cause provided by law"
principles enshrined in the very same 1987 Constitution, 79 which may possibly justify
removals "not for cause," there is no contradiction in terms here because, while the former
Constitution left the axe to fall where it might, the present organic act requires that removals
"not for cause" must be as a result of reorganization. As we observed, the Constitution does
not provide for "automatic" vacancies. It must also pass the test of good faith a test not
obviously required under the revolutionary government formerly prevailing, but a test wellestablished in democratic societies and in this government under a democratic Charter.
When, therefore, Arroyo permitted a reorganization under Executive Order No. 127 after the
ratification of the 1987 Constitution, Arroyo permitted a reorganization provided that it is done
in good faith. Otherwise, security of tenure would be an insuperable impediment. 80
Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in
good faith. 81 As a general rule, a reorganization is carried out in "good faith" if it is for the
purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in
case of a dismissal) or separation actually occurs because the position itself ceases to exist.
And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the
"abolition," which is nothing else but a separation or removal, is done for political reasons or
purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes
place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as
where there is merely a change of nomenclature of positions, 82 or where claims of economy
are belied by the existence of ample funds. 83
It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are
not, as a consequence, imposing a "cause" for restructuring. Retrenchment in the course of a
reorganization in good faith is still removal "not for cause," if by "cause" we refer to "grounds"
or conditions that call for disciplinary action. ***
Good faith, as a component of a reorganization under a constitutional regime, is judged from
the facts of each case. However, under Republic Act No. 6656, we are told:chanrob1es virtual
1aw library
SEC. 2. No officer or employee in the career service shall be removed except for a valid cause
and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona
fide reorganization, a position has been abolished or rendered redundant or there is a need to
merge, divide, or consolidate positions in order to meet the exigencies of the service, or other
lawful causes allowed by the Civil Service Law. The existence of any or some of the following
circumstances may be considered as evidence of bad faith in the removals made as a result of
reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved
party: (a) Where there is a significant increase in the number of positions in the new staffing
pattern of the department or agency concerned; (b) Where an office is abolished and another
performing substantially the same functions is created; (c) Where incumbents are replaced by
those less qualified in terms of status of appointment, performance and merit; (d) Where
there is a reclassification of offices in the department or agency concerned and the reclassified
offices perform substantially the same functions as the original offices; (e) Where the removal
violates the order of separation provided in Section 3 hereof. 84
It is in light hereof that we take up questions about Commissioner Misons good faith, or lack

Page 73 of 492

of it.
Reorganization of the Bureau of Customs,
Lack of Good Faith in.
The Court finds that after February 2, 1987 no perceptible restructuring of the Customs
hierarchy except for the change of personnel has occurred, which would have justified
(all things being equal) the contested dismissals. The contention that the staffing pattern at
the Bureau (which would have furnished a justification for a personnel movement) is the same
staffing pattern prescribed by Section 34 of Executive Order No. 127 already prevailing when
Commissioner Mison took over the Customs helm, has not been successfully contradicted. 85
There is no showing that legitimate structural changes have been made or a reorganization
actually undertaken, for that matter at the Bureau since Commissioner Mison assumed
office, which would have validly prompted him to hire and fire employees. There can therefore
be no actual reorganization to speak of, in the sense, say, of reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy of functions,
but a revamp of personnel pure and simple.chanrobles law library : red
The records indeed show that Commissioner Mison separated about 394 Customs personnel
but replaced them with 522 as of August 18, 1988. 86 This betrays a clear intent to "pack" the
Bureau of Customs. He did so, furthermore, in defiance of the Presidents directive to halt
further lay-offs as a consequence of reorganization. 87 Finally, he was aware that lay-offs
should observe the procedure laid down by Executive Order No. 17.
We are not, of course, striking down Executive Order No. 127 for repugnancy to the
Constitution. While the act is valid, still and all, the means with which it was implemented is
not. 88
Executive Order No. 127, Specific Case of .
With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59
thereof," [t]hose incumbents whose positions are not included therein or who are not
reappointed shall be deemed separated from the service." He submits that because the 394
removed personnel have not been "reappointed," they are considered terminated. To begin
with, the Commissioners appointing power is subject to the provisions of Executive Order No.
39. Under Executive Order No. 39, the Commissioner of Customs may "appoint all Bureau
personnels except those appointed by the President." 89
Accordingly, with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr.,
Commissioner Mison could not have validly terminated them, they being Presidential
appointees.
Secondly, and as we have asserted, Section 59 has been rendered inoperative according to
our holding in Palma-Fernandez.
That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere
holdover status cannot mean that the positions held by them had become vacant. In PalmaFernandez, we said in no uncertain terms:chanrob1es virtual 1aw library

Page 74 of 492

The argument that, on the basis of this provision, petitioners term of office ended on 30
January 1987 and that she continued in the performance of her duties merely in a hold-over
capacity and could be transferred to another position without violating any of her legal rights,
is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate
reorganization and would have lapsed on 25 February 1987 (under the Provisional
Constitution), but advanced to February 2, 1987 when the 1987 Constitution became effective
(De Leon, Et Al., v. Hon. Benjamin B. Esquerra, et. al., G.R. No. 78059, 31 August 1987).
After the said date the provisions of the latter on security of tenure govern. 90
It should be seen, finally, that we are not barring Commissioner Mison from carrying out a
reorganization under the transitory provisions of the 1987 Constitution. But such a
reorganization should be subject to the criterion of good faith.
Resume.
In resume, we restate as follows:chanrob1es virtual 1aw library
1. The President could have validly removed government employees, elected or appointed,
without cause but only before the effectivity of the 1987 Constitution on February 2, 1987 (De
Leon v. Esguerra, supra; Palma-Fernandez v. De la Paz, supra); in this connection, Section 59
(on non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for
termination;
2. In such a case, dismissed employees shall be paid separation and retirement benefits or
upon their option be given reemployment opportunities (CONST. [1987], art. XVIII, sec. 16;
Rep. Act No. 6656, sec. 9);
3. From February 2, 1987, the State does not loss the right to reorganize the Government
resulting in the separation of career civil service employees [CONST. (1987), supra] provided,
that such a reorganization is made in good faith. (Rep. Act No. 6656, supra.)
G.R. No. 83737
This disposition also resolves G.R. No. 83737. As we have indicated, G.R. No. 83737 is a
challenge to the validity of Republic Act No. 6656. In brief, it is argued that the Act, insofar as
it strengthens security of tenure 91 and as far as it provides for a retroactive effect, 92 runs
counter to the transitory provisions of the new Constitution on removals not for cause.
It can be seen that the Act, insofar as it provides for reinstatement of employees separated
without "a valid cause and after due notice and hearing" 93 is not contrary to the transitory
provisions of the new Constitution. The Court reiterates that although the Charters transitory
provisions mention separations "not for cause," separations thereunder must nevertheless be
on account of a valid reorganization and which do not come about automatically. Otherwise,
security of tenure may be invoked. Moreover, it can be seen that the statute itself recognizes
removals without cause. However, it also acknowledges the possibility of the leadership using
the artifice of reorganization to frustrate security of tenure. For this reason, it has installed
safeguards. There is nothing unconstitutional about the Act.

Page 75 of 492

We recognize the injury Commissioner Misons replacements would sustain. We also

commisserate with them. But our concern is the greater wrong inflicted on the dismissed
employees on account of their illegal separation from the civil service.
WHEREFORE, THE RESOLUTIONS OF THE CIVIL SERVICE COMMISSION, DATED JUNE 30,
1988, SEPTEMBER 20, 1988, NOVEMBER 16, 1988, INVOLVED IN G.R. NOS. 85310, 85335,
AND 86241, AND MAY 8, 1989, INVOLVED IN G.R. NO. 85310, ARE AFFIRMED.
THE PETITIONS IN G.R. NOS. 81954, 81967, 82023, AND 85335 ARE GRANTED. THE
PETITIONS IN G.R. NOS. 83737, 85310 AND 86241 ARE DISMISSED.
THE COMMISSIONER OF CUSTOMS IS ORDERED TO REINSTATE THE EMPLOYEES SEPARATED
AS A RESULT OF HIS NOTICES DATED JANUARY 26, 1988.
THE EMPLOYEES WHOM COMMISSIONER MISON MAY HAVE APPOINTED AS REPLACEMENTS
ARE ORDERED TO VACATE THEIR POSTS SUBJECT TO THE PAYMENT OF WHATEVER BENEFITS
THAT MAY BE PROVIDED BY LAW.
NO COSTS.
IT IS SO ORDERED.
Gutierrez, Jr., Paras, Gancayco, Bidin, Cortes, Grio-Aquino and Medialdea, JJ., concur.
Padilla, J., No part, related to counsel for respondent Abaca in G.R. No. 85310.
Separate Opinions
MELENCIO-HERRERA, J., dissenting:chanrob1es virtual 1aw library
The historical underpinnings of Government efforts at reorganization hark back to the people
power phenomenon of 22-24 February 1986, and Proclamation No. 1 of President Corazon C.
Aquino, issued on 25 February 1986, stating in no uncertain terms that "the people expect a
reorganization of government." In its wake followed Executive Order No. 5, issued on 12
March 1986, "Creating a Presidential Commission on Government Reorganization," with the
following relevant provisions:jgc:chanrobles.com.ph
"WHEREAS, there is need to effect the necessary and proper changes in the organizational and
functional structures of the national and local governments, its agencies and instrumentalities,
including government-owned and controlled corporations and their subsidiaries, in order to
promote economy, efficiency and effectiveness in the delivery of public services
x

"Section 2. The functional jurisdiction of the PCGR shall encompass, as necessary, the
reorganization of the national and local governments, its agencies and instrumentalities
including government-owned or controlled corporations and their subsidiaries.chanrobles

Page 76 of 492

virtual lawlibrary
x

x" (Emphasis supplied)

Succeeding it was Proclamation No. 3, dated 25 March 1986, also known as the Freedom
Constitution, declaring, in part, in its Preamble as follows:chanrob1es virtual 1aw library
WHEREAS, the direct mandate of the people as manifested by their extraordinary action
demands the complete reorganization of the government, . . ." (Emphasis supplied)
and pertinently providing:jgc:chanrobles.com.ph
"ARTICLE II
"Section I
". . .
"The President shall give priority to measures to achieve the mandate of the people
to:jgc:chanrobles.com.ph
"(a) Completely reorganize the government and eradicate unjust and oppressive structures,
and all iniquitous vestiges of the previous regime;" (Emphasis supplied)
x

"ARTICLE III - GOVERNMENT REORGANIZATION

"Section 2. All elective and appointive officials and employees under the 1973 Constitution
shall continue in office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such is made within a
period of one year from February 25, 1986.
"Section 3. Any public office or employee separated from the service as a result of the
reorganization effected under this Proclamation shall, if entitled under the laws then in force,
receive the retirement and other benefits accruing thereunder." (Emphasis ours)
On 28 May 1986, Executive Order No. 17 was issued "Prescribing Rules and Regulations for
the Implementation of Section 2, Article III of the Freedom Constitution" providing, inter alia,
as follows:jgc:chanrobles.com.ph
"Section 1. In the course of implementing Article III, Section 2 of the Freedom Constitution,
the Head of each Ministry shall see to it that the separation or replacement of officers and
employees is made only for justifiable reasons, to prevent indiscriminate dismissals of
personnel in the career civil service whose qualifications and performance meet the standards
of public service of the New Government.
"x

Page 77 of 492

"The Ministry concerned shall adopt its own rules and procedures for the review and
assessment of its own personnel, including the identification of sensitive positions which
require more rigid assessment of the incumbents, and shall complete such review/assessment
as expeditiously as possible but not later than February 24, 1987 to prevent undue
demoralization in the public service.
"Section 2. The Ministry Head concerned, on the basis of such review and assessment shall
determine who shall be separated from the service. Thereafter, he shall issue to the official or
employee concerned a notice of separation which shall indicate therein the reason/s or
ground/s for such separation and the fact that the separated official or employee has the right
to file a petition for reconsideration pursuant to this Order. Separation from the service shall
be effective upon receipt of such notice, either personally by the official or employee
concerned or on his behalf by a person of sufficient discretion.
"Section 3. The following shall be the grounds for separation replacement of
personnel:chanrob1es virtual 1aw library
1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;
2. Existence of a probable cause for violation of the Anti Graft and Corrupt Practice 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."cralaw virtua1aw library
"Section 11. This Executive Order shall not apply to elective officials or those designated to
replace them, presidential appointees, casual and contractual employees, or officials and
employees removed pursuant to disciplinary proceedings under the Civil Service Law and
rules, and to those laid off as a result of the reorganization under taken pursuant to Executive
Order No. 5." (Emphasis supplied)
On 6 August 1986, Executive Order No. 39 was issued by the President "Enlarging the Powers
and Functions of the Commissioner of Customs", as follows:jgc:chanrobles.com.ph
"x

"SECTION 1. In addition to the powers and functions of the Commissioner of Customs, he is

hereby authorized, subject to the Civil Service Law and its implementing rules and
regulations:chanrob1es virtual 1aw library
a) To appoint all Bureau personnel, except those appointed by the President;
b) To discipline, suspend, dismiss or otherwise penalize erring Bureau officers and
employees;chanrobles virtual lawlibrary

Page 78 of 492

c) To act on all matters pertaining to promotion, transfer, detail, reassignment, reinstatement,

reemployment and other personnel action, involving officers and employees of the Bureau of
Customs.
x

x"

On 30 January 1987, Executive Order No. 127 was issued "Reorganizing the Ministry of
Finance." Similar Orders, approximately thirteen (13) in all, 1 were issued in respect of the
other executive departments. The relevant provisions relative to the Bureau of Customs
read:jgc:chanrobles.com.ph
"RECALLING that the reorganization of the government is mandated expressly in Article II,
Section l(a) and Article III of the Freedom Constitution;
"HAVING IN MIND that pursuant to Executive Order No. 5 (1986), it is directed that the
necessary and proper changes in the organizational and functional structures of the
government, its agencies and instrumentalities, be effected in order to promote efficiency and
effectiveness in the delivery of public services;
"BELIEVING that it is necessary to reorganize the Ministry of Finance to make it more capable
and responsive, organizationally and functionally, in its primary mandate of judiciously
generating and efficiently managing the financial resources of the Government, its
subdivisions and instrumentalities in order to attain the socio-economic objectives of the
national development programs.
"x

x"

"SEC. 2. Reorganization. The Ministry of Finance, hereinafter referred to as Ministry, is

hereby reorganized, structurally and functionally, in accordance with the provisions of this
Executive Order."cralaw virtua1aw library
"SEC. 33. Bureau of Customs.
". . . Executive Order No. 39 dated 6 August 1986 which grants autonomy to the
Commissioner of Customs in matters of appointment and discipline of Customs personnel shall
remain in effect."cralaw virtua1aw library
"SEC. 55. Abolition of Units Integral to Ministry. All units not included in the structural
organization as herein provided and all positions thereof are hereby deemed abolished. . . .
Their personnel shall be entitled to the benefits provided in the second paragraph of Section
59 hereof"
"SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers
and employees of the Ministry shall, in a holdover capacity, continue to perform their
respective duties and responsibilities and receive the corresponding salaries and benefits
unless in the meantime they are separated from government service pursuant to Executive
Order No. 17 (1986) or Article III of the Freedom Constitution.

Page 79 of 492

"The new position structure and staffing pattern of the Ministry shall be approved and
prescribed by the Minister within one hundred twenty (120) days from the approval of this
Executive Order and the authorized positions created hereunder shall be filled with regular
appointments by him or by the President, as the case may be. Those incumbents whose
positions are not included therein or who are not reappointed shall be deemed separated from
the service. Those separated from the service shall receive the retirement benefits to which
they may be entitled under the existing laws, rules and regulations. Otherwise, they shall be
paid the equivalent of one month basic salary for every year of service or the equivalent
nearest fraction thereof favorable to them on the basis of highest salary received, but in no
case shall such payment exceed the equivalent of 12 months salary.
"No court or administrative body shall issue any writ or preliminary injunction or restraining
order to enjoin the separation/replacement of any officer or employee affected under this
Executive Order."cralaw virtua1aw library
"Section 67 All laws, ordinances, rules, regulations and other issuances or parts thereof,
which are inconsistent with this Executive Order, are hereby repealed or modified accordingly.
"x

x" (Emphasis supplied)

On 2 February 1987, the present Constitution took effect (De Leon, Et Al., v. Esguerra, G.R.
No. 78059, August 31, 1987, 153 SCRA 602). Reorganization in the Government service
pursuant to Proclamation No. 3, supra, was provided for in its Section 16, Article XVIII entitled
Transitory Provisions, reading:jgc:chanrobles.com.ph
"Section 16. Career civil service employees separated from the service not for cause but as a
result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the
reorganization following the ratification of this Constitution shall be entitled to appropriate
separation pay and to retirement and other benefits accruing to them under the laws of
general application in force at the time of their separation. In lieu thereof, at the option of the
employees, they may be considered for employment in the Government or in any of its
subdivisions, instrumentalities, or agencies, including government owned or controlled
corporations and their subsidiaries. This provision also applies to career officers whose
resignation, tendered in line with the existing policy, has been
accepted." chanrobles.com:cralaw:red
On 24 May 1987 the then Commissioner of Customs, Alexander A. Padilla, transmitted to the
Department of Finance for approval the proposed "position structure and staffing pattern" of
the Bureau of Customs. Said Department gave its imprimatur. Thereafter, the staffing pattern
was transmitted to and approved by the Department of Budget and Management on 7
September 1987 for implementation. Under the old staffing pattern, there were 7,302
positions while under the new staffing pattern, there are 6,530 positions (CSC Resolution in
CSC Case No. 1, dated 20 September 1988, pp. 3-4).
On 22 September 1987, Salvador M. Mison assumed office as Commissioner of Customs.
On 2 October 1987 "Malacaang Memorandum Re: Guidelines on the Implementation of
Reorganization Executive Orders" was issued reading, insofar as relevant to these cases, as
follows:jgc:chanrobles.com.ph

Page 80 of 492

"It is my concern that ongoing process of government reorganization be conducted in a

manner that is expeditious, as well as sensitive to the dislocating consequences arising from
specific personnel decisions.
"The entire process of reorganization, and in particular the process of separation from a
service, must be carried out in the most humane manner possible.
"For this purpose, the following guidelines shall be strictly followed:chanrob1es virtual 1aw
library
1. By October 21, 1987, all employees covered by the Executive Orders for each agency on
reorganization shall be:chanrob1es virtual 1aw library
a. informed of their reappointment or
b. offered another position in the same department/agency, or
c. informed of their termination.
2. In the event of an offer for a lower position, there will be no reduction in the salary.
x

4. Each department/agency shall constitute a Reorganization Appeals Board at the central

office, on or before October 21, 1987, to review or reconsider appeals or complaints relative to
reorganization. All cases submitted to the Boards shall be resolved subject to the following
guidelines:chanrob1es virtual 1aw library
a. publication or posting of the appeal procedure promulgated by the Department Secretary;
b. adherence to due process;
c. disposition within 30 days from submission of the case;
d. written notification of the action taken and the grounds thereof.
Action by the Appeals Review Board does not preclude appeal to the Civil Service Commission.
5. Placement in the new staffing pattern of incumbent personnel shall be completed prior to
the hiring of new personnel, if any.
x

x" (Emphasis supplied)

On 25 November 1987 Commissioner Mison wrote the President requesting a grace period
until the end of February 1988 within which to completely undertake the reorganization of the
Bureau of Customs pursuant to Executive Order No. 127 dated 30 January 1987. Said request
was granted in a letter-reply by Executive Secretary Catalino Macaraig, Jr., dated 22

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December 1987.
On 6 January 1988, within the extended period requested, Bureau of Customs Memorandum
"Re: Guidelines on the Implementation of Reorganization Executive Orders" was issued in the
same tenor as the Malacaang Memorandum of 2 October 1987, providing inter
alia:jgc:chanrobles.com.ph
"To effectively implement the reorganization at the Bureau of Customs, particularly in the
selection and placement of personnel, and insure that the best qualified and most competent
personnel in the career service are retained, the following guidelines are hereby prescribed for
the guidance of all concerned
1. By February 28, 1988 all employees covered by Executive Order No. 127 and the grace
period extended to the Bureau of Customs by the President of the Philippines on
reorganization shall be:chanrob1es virtual 1aw library
a. informed of their reappointment, or
b. offered another position in the same department or agency, or
c. informed of their termination.
2. In the event of termination, the employee shall:chanrob1es virtual 1aw library
a. be included in a consolidated list compiled by the Civil Service Commission. All departments
who are recruiting shall give preference to the employees in the list; and
b. continue to receive salary and benefits until February 28, 1988, and
c. be guaranteed the release of separation benefits within 45 days from termination and in no
case later than June 15, 1988.
x

x" (Emphasis supplied)

It is to be noted that paragraph 1 above and its sub-sections reproduced verbatim the
Malacaang Guidelines of 2 October 1987 in that the employees concerned were merely to be
informed of their termination.
On 28 January 1988 Commissioner Mison addressed identical letters of termination to Bureau
of Customs officers and employees effective on 28 February 1988.
As of 18 August 1988, Commissioner Mison appointed five hundred twenty-two (522) officials
and employees of the Bureau of Customs (CSC Resolution in CSC Case No. 1, dated 20
September 1988, p. 6). In fact, in a letter dated 27 January 1988, Commissioner Mison
recommended Jose M. Balde for appointment to President Aquino as one of three (3) Deputy
Commissioners under Executive Order No. 127.chanrobles.com : virtual law library
In the interim, during the pendency of these Petitions, Republic Act No. 6656, entitled "An Act
to Protect the Security of Tenure of Civil Service Officers and Employees in the

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Implementation of Government Reorganization" was passed by Congress on 9 June 1988. The

President signed it into law on 10 June 1988 and the statute took effect on 29 June 1988.
On 20 June 1988 Motions were filed, in these cases pending before this Court, invoking the
provisions of Republic Act No. 6656. The relevant provisions thereof
read:jgc:chanrobles.com.ph
"SECTION 1. It is hereby declared the policy of the State to protect the security of tenure of
civil service officers and employees in the reorganization of the various agencies of the
National government . . . .
"SECTION 2. No officer or employee in the career service shall be removed except for a valid
cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a
bona fide reorganization, a position has been abolished or rendered redundant or there is a
need to merge, divide, or consolidate positions in order to meet the exigencies of the service,
or other lawful causes allowed by the Civil Service Law. The existence of any or some of the
following circumstances may be considered as evidence of bad faith in the removals made as a
result of reorganization, giving rise to a claim for reinstatement or reappointment by an
aggrieved party:chanrob1es virtual 1aw library
(a) Where there is a significant increase in the number of positions in the new staffing pattern
of the department or agency concerned;
(b) Where an office is abolished and another performing substantially the same functions is
created;
(c) Where incumbents are replaced by those less qualified in terms of status of appointment,
performance and merit;
(d) Where there is a reclassification of offices in the department or agency concerned and the
reclassified offices perform substantially the same functions as the original offices;
(e) Where the removal violates the order of separation provided in Section 3 hereof
x

"SECTION 9. All officers and employees who are found by the Civil Service Commission to
have been separated in violation of the provisions of this Act, shall be ordered reinstated or
reappointed as the case may be without loss of seniority and shall be entitled to full pay for
the period of separation. Unless also separated for cause, all officers and employees, including
casuals and temporary employees, who have been separated pursuant to reorganization shall,
if entitled thereto, be paid the appropriate separation pay and retirement and other benefits
under existing laws within ninety (90) days from the date of the effectivity of their separation
or from the date of the receipt of the resolution of their appeals as the case may be: Provided,
That application for clearance has been filed and no action thereon has been made by the
corresponding department or agency. Those who are not entitled to said benefits shall be paid
a separation gratuity in the amount equivalent to one (1) month salary for every year of

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service. Such separation pay and retirement benefits shall have priority of payment out of the
savings of the department or agency concerned.
x

"SECTION 11. The executive branch of the government shall implement reorganization
schemes within a specified period of time authorized by law.
"In the case of the 1987 reorganization of the executive branch, all departments and agencies
which are authorized by executive orders promulgated by the President to reorganize shall
have ninety (90) days from the approval of this Act within which to Implement their respective
reorganization plans in accordance with the provisions of this Act.
x

"SECTION 13. All laws, rules and regulations or parts thereof, inconsistent with the provisions
of this Act are hereby repealed or modified accordingly. The rights and benefits under this Act
shall be retroactive as of June 30, 1987.
"x

x" (Emphasis ours)

Given the foregoing statutory backdrop, the issues can now be addressed.
Scope of Section 16, Art. XVIII, 1987 Constitution
Crucial to the present controversy is the construction to be given to the abovementioned
Constitutional provision (SECTION 16, for brevity), which speaks of:jgc:chanrobles.com.ph
"Career civil service employees separated from the service not for cause
but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986
and the reorganization following the ratification of this Constitution . . ." (Emphasis supplied).
To our minds, SECTION 16 clearly recognizes (1) the reorganization authorized by
Proclamation No. 3; (2) that such separation is NOT FOR CAUSE but as a result of the
reorganization pursuant to said Proclamation; and (3) that the reorganization pursuant to
Proclamation No. 3 may be continued even after the ratification of the 1987 Constitution
during the transition period.
Separation NOT FOR CAUSE
The canon for the removal or suspension of a civil service officer or employee is that it must
be FOR CAUSE. That means "a guarantee of both procedural and substantive due process.
Basically, procedural due process would require that suspension or dismissal come only after
notice and hearing. Substantive due process would require that suspension or dismissal be for
cause." (Bernas, The Constitution of the Republic of the Philippines: A Commentary, Vol. II,

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First Edition, 1988, p. 334)

The guarantee of removal FOR CAUSE is enshrined in Article IX-B, Section 2(3) of the 1987
Constitution, which states that "No officer or employee of the civil service shall be removed or
suspended except FOR CAUSE provided by law."cralaw virtua1aw library
There can be no question then as to the meaning of the phrase FOR CAUSE. It simply means
the observance of both procedural and substantive due process in cases of removal of officers
or employees of the civil service. When SECTION 16 speaks, therefore, of separation from the
service NOT FOR CAUSE, it can only mean the diametrical opposite. The constitutional intent
to exempt the separation of civil service employees pursuant to Proclamation No. 3 from the
operation of Article IX-B, Section 2(3), becomes readily apparent. A distinction is explicitly
made between removal FOR CAUSE, which as aforestated, requires due process, and dismissal
NOT FOR CAUSE, which implies that the latter is not bound by the "fetters" of due process.
It is obviously for that reason that Section 16 grants separation pay and retirement benefits to
those separated NOT FOR CAUSE but as a result of the reorganization precisely to soften the
impact of the non-observance of due process. "What is envisioned in Section 16 is not a
remedy for arbitrary removal of civil servants enjoying security of tenure but some form of
relief for members of the career civil service who may have been or may be legally but
involuntarily reorganized out of the service or may have voluntarily resigned pursuant to the
reorganization policy" (ibid., p. 615).chanrobles virtual lawlibrary
Reorganization Pursuant to Proclamation No. 3 to Continue Transitorily Even After Ratification
By its very context, SECTION 16 envisages the continuance of the reorganization pursuant to
Proclamation No. 3 even after ratification of the Constitution and during the transition period.
The two [2] stages contemplated, namely, (1) the stage before and (2) after ratification, refer
to the same nature of separation "NOT FOR CAUSE but as a result of Proclamation No. 3." No
valid reason has been advanced for a different treatment after ratification as the majority
opines, i.e., that separation NOT FOR CAUSE is allowed before ratification but that, thereafter,
separation can only be FOR CAUSE.
A fundamental principle of Constitutional construction IS to assure the realization of the
purpose of the framers of the organic law and of the people who adopted it.
That the reorganization commenced pursuant to Proclamation No. 3 was envisioned to
continue even after the ratification of the 1987 Constitution, at least transitorily, is evident
from the intent of its authors discoverable from their deliberations held on 3 October 1986 and
evincing their awareness that such reorganization had not as yet been fully implemented.
Thus:jgc:chanrobles.com.ph
"Mr. PADILLA. Mr. Presiding Officer, on lines 2 to 5 is the clause pursuant to the provisions of
Article III of Proclamation No. 3, issued on March 25,1986, and the reorganization. Are those
words necessary? Can we not just say result of the reorganization following the ratification of
this Constitution? In other words, must we make specific reference to Proclamation No. 3?
"Mr. SUAREZ. Yes. I think the committee feels that is necessary, because in truth there has
been a reorganization by virtue of Proclamation No. 3. In other words, there are two stages of

Page 85 of 492

reorganization covered by this section.

"Mr. PADILLA. I understand there is a reorganization committee headed by a minister?
"Mr. SUAREZ. Philippine Commission on Government Reorganization.
"Mr. PADILLA. But whether that has already been implemented or not, I do not believe in it.
There has been a plan, but I do not think it has been implemented. If we want to include any
previous reorganization after or before the ratification, why do we not just say reorganization
before or after the ratification to simplify the provision and eliminate two-and-a-half
sentences that may not be necessary? And as a result of the reorganization, if the committee
feels there has been reorganization before ratification and there be reorganization after, we
just say before or after the ratification of this Constitution.
Mr. SUAREZ. Something like this: as a result of the reorganization effected before or after the
ratification of the Constitution on the understanding, with the statement into the records, that
this would be applicable to those reorganized out pursuant to the Freedom Constitution also.
"Mr. PADILLA. That is understood if there has been a reorganization before the ratification or a
reorganization after the ratification." (RECORDS of the Constitutional Commission, Vol. 5, p.
416) (Emphasis provided)
It should also be recalled that the deadline for the reorganization under Proclamation No. 3
was "one year from February 25, 1986" (Article III, Section 2), or up to February 24, 1987.
Executive Order No. 17 itself provided that the review/assessment of personnel be completed
"not later than February 24, 1987." But, confronted with the reality of the ratification of the
Constitution before that deadline without reorganization having been completed, there was
need for a provision allowing for its continuance even after ratification and until completed. It
was also to beat that deadline that EO 127 and similar issuances, providing for the
reorganization of departments of government, were all dated 30 January 1987 or prior to the
plebiscite held on 2 February 1987. The intent to continue and complete the reorganizations
started is self-evident in SECTION 16.
In Jose v. Arroyo, Et. Al. (G.R. No. 78435, August 11, 1987), which was a Petition
for Certiorari and Prohibition to enjoin the implementation of Executive Order No. 127, we
recognized that the reorganization pursuant to Proclamation No. 3 as mandated by SECTION
16, was to continue even after ratification when we stated:jgc:chanrobles.com.ph
"The contention of petitioner that EO No. 127 is violative of the provision of the 1987
Constitution guaranteeing career civil service employees security of tenure overlooks the
provision of Section 16, Art. XVIII (Transitory Provisions) which explicitly authorizes the
removal of career civil service employees not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the
ratification of the Constitution. By virtue of said provision, the reorganization of the Bureau of
Customs under Executive Order No. 127 may continue even after the ratification of this
Constitution and career civil service employees may be separated from the service without
cause as a result of such reorganization." (Emphasis ours)
With due respect to the majority, we disagree with its conclusion that the foregoing

Page 86 of 492

pronouncement is mere "obiter dictum." chanrobles lawlibrary : rednad

"An obiter dictum or dictum has been defined as a remark or opinion uttered, by the way. It is
a statement of the court concerning a question which was not directly before it (In re Hess, 23
A. 2d. 298, 301, 20 N.J. Misc. 12). It is language unnecessary to a decision, (a) ruling on an
issue not raised, or (an) opinion of a judge which does not embody the resolution or
determination of the court, and is made without argument or full consideration of the point
(Lawson v. US, 176 F2d 49, 51, 85 U.S. App. D.C. 167). It is an expression of opinion by the
court or judge on a collateral question not directly involved, (Crescent Ring Co. v. Travelers
Indemnity Co. 132 A. 106, 107, 102 N.J. Law 85) or not necessary for the decision (Du Bell v.
Union Central Life Ins. Co., 29, So. 2d 709, 712; 211 La. 167)."cralaw virtua1aw library
In the case at bar, however, directly involved and squarely before the Court was the issue of
whether "EO 127 violates Section 2(3) of Article IX-B of the 1987 Constitution against removal
of civil service employees except for cause." Petitioner batted for the affirmative of the
proposition, while respondents contended that "removal of civil service employees without
cause is allowed not only under the Provisional Constitution but also under the 1987
Constitution if the same is made pursuant to a reorganization after the ratification of the
Constitution."cralaw virtua1aw library
It may be that the Court dismissed that Petition for being "premature, speculative and purely
anticipatory" inasmuch as petitioner therein had "not received any communication terminating
or threatening to terminate his services." But that was only one consideration. The Court still
proceeded to decide all the issues adversatively contested by the parties, namely "1) that the
expiration date of February 25, 1987 fixed by Section 2 of Proclamation No. 3 on which said
Executive order is based had already lapsed; 2) that the Executive Order has not been
published in the Official Gazette as required by Article 2 of the Civil Code and Section 11 of the
Revised Administrative Code; and 3) that its enforcement violates Section 2(3) of Article IX-B
of the 1987 Constitution against removal of civil service employees except for cause."cralaw
virtua1aw library
The ruling of the Court, therefore, on the Constitutional issues presented, particularly, the
lapse of the period mandated by Proclamation No. 3, and the validity of EO 127, cannot be
said to be mere "obiter." They were ultimate issues directly before the Court, expressly
decided in the course of the consideration of the case, so that any resolution thereon must be
considered as authoritative precedent, and not a mere dictum (See Valli v. US, 94 F.2d
687 certiorari granted 58 S. Ct. 760, 303 U.S. 82 L. Ed. 1092; See also Weedin v. Tayokichi
Yamada 4 F. (2d) 455). Such resolution would not lose its value as a precedent just because
the disposition of the case was also made on some other ground.
". . . And this rule applies as to all pertinent questions although only incidentally involved,
which are presented and decided in the regular course of the consideration of the case, and
lead up to the final conclusion (Northern Pac. Ry. Co. v. Baker, D.C. Wash., 3 F. Suppl. 1; See
also Wisconsin Power and Light Co. v. City of Beloit, 254 NW 119; Chase v. American Cartage
Co. 186 N.W. 598; City of Detroit, Et. Al. v. Public Utilities Comm. 286 N.W. 368). Accordingly,
a point expressly decided does not lose its value as a precedent because the disposition of the
case is made on some other ground. (Wagner v. Corn Products Refining Co. D.C. N.J. 28 F 2d
617) Where a case presents two or more points, any one of which is sufficient to determine
the ultimate issue, but the court actually decides all such points, the case is an authoritative

Page 87 of 492

precedent as to every point decided, and none of such points can be regarded as having
merely the status of a dictum (See U.S. v. Title Insurance and Trust Co., Cal., 44 S. Ct. 621,
265 U.S. 472, 68 L. Ed. 1110; Van Dyke v. Parker 83 F. (2d) 35) and one point should not be
denied authority merely because another point was more dwelt on and more fully argued and
considered. (Richmond Screw Anchor Co. v. U.S. 48 S. Ct. 194, 275 U.S. 331, 72 L. Ed.
303)" chanroblesvirtual|awlibrary
It is true that in Palma-Fernandez v. de la Paz (G.R. No. 78946, April 15, 1986, 160 SCRA
751), we had stated:jgc:chanrobles.com.ph
"The argument that, on the basis of this provision (Section 26 of Executive Order No. 119, or
the Reorganization Act of the Ministry of Health), petitioners term of office ended on 30
January 1987 and that she continued in the performance of her duties merely in a hold-over
capacity and could be transferred to another position without violating any of her legal rights,
is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate
reorganization and would have lapsed on 25 February 1987 (under the Provisional
Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective
(De Leon, Et Al., v. Hon. Esguerra, Et Al., G.R. No. 78059, 31 August 1987, 153 SCRA 602).
After the said date the provisions of the latter on security of tenure govern."cralaw virtua1aw
library
The factual situation in the two cases, however, radically differ. In the cited case, Dra. PalmaFernandez, the petitioner, had already been extended a permanent appointment as Assistant
Director for Professional Services of the East Avenue Medical Center but was still being
transferred by the Medical Center Chief to the Research office against her consent. Separation
from the service as a result of reorganization was not involved. The question then arose as to
whether the latter official had the authority to transfer or whether the power to appoint and
remove subordinate officers and employees was lodged in the Secretary of Health. Related to
that issue was the vital one of whether or not her transfer, effected on 29 May 1987, was
tantamount to a removal without cause. Significant, too, is the fact that the transfer was
basically made "in the interest of the service" pursuant to Section 24(c) of PD No. 807, or the
Civil Service Decree, and not because she was being reorganized out by virtue of EO 119 or
the "Reorganization Act of the Ministry of Health," although the said Act was invoked after the
fact. And so it was that SECTION 16 was never mentioned, much less invoked in the PalmaFernandez case.
Finally, on this point, it is inaccurate for the majority to state that there were no
reorganization orders after ratification. There were, namely, EO 181 (Reorganization Act of the
Civil Service Commission), June 1, 1987; EO 193 (Reorganization Act of the Office of Energy
Affairs), June 10, 1987; EO 230 (Reorganization Act of NEDA), July 22, 1987; EO 262
(Reorganization Act of the Department of Local Government), July 25, 1987; EO 297
(Reorganization Act of the office of the Press Secretary), July 25, 1987.
The Element of Good Faith
The majority concedes that reorganization can be undertaken provided it be in good faith but
concludes that Commissioner Mison was not in good faith.
The aforesaid conclusion is contradicted by the records.

Page 88 of 492

Executive Order No. 127, dated 30 January 1987, specifically authorized the reorganization of
the Bureau of Customs "structurally and functionally" and provided for the abolition of all units
and positions thereof not included in the structural organization (Section 55).
As stated heretofore, it was the former Commissioner of Customs, Alexander A. Padilla who,
on 24 May 1987, transmitted to the Department of Finance for approval the proposed "position
structure and staffing pattern" of the Bureau of Customs. This was approved by the
Department of Finance. Thereafter, it was transmitted to and approved by the Department of
Budget and Management on 7 September 1987 for implementation. Under the old staffing
pattern, there were 7,302 positions while under the new staffing pattern, there are 6,530
positions.
On 2 October 1987 "Malacaang Memorandum Re: Guidelines on the Implementation of
Reorganization Executive Orders" provided:jgc:chanrobles.com.ph
"By October 21, 1987, all employees covered by the Executive orders for each agency on
reorganization shall be:chanrob1es virtual 1aw library
a. informed of their reappointment, or
b. offered another position in the same department or agency, or
c. informed of their termination." (Emphasis supplied)
On 25 November 1987 Commissioner Mison asked for and was granted by the President an
extension up to February 1988 within which to completely undertake the reorganization of the
Bureau of Customs.
On 6 January 1988, he issued Bureau of Customs Memorandum "Re Guidelines on the
Implementation of Reorganization Executive Orders" reiterating the above-quoted portion of
the Malacaang Memorandum of 2 October 1987. Pursuant thereto, on 28 January 1988,
Commissioner Mison addressed uniform letters of termination to the employees listed on
pages 15,16 and 17 of the majority opinion, effective on 28 February 1988, within the
extended period granted.chanroblesvirtuallawlibrary
The records further show that upon Commissioner Misons official inquiry, Secretary of Justice
Secretary A. Ordoez, rendered the following Opinion:jgc:chanrobles.com.ph
". . . It is believed that customs employees who are reorganized out in the course of the
implementation of E.O. No. 127 (reorganizing the Department of Finance) need not be
informed of the nature and cause of their separation from the service. It is enough that they
be informed of their termination pursuant to section 1(c) of the Memorandum dated October
2, 1987 of President Aquino, which reads:jgc:chanrobles.com.ph
"1. By October 21,1987, all employees covered by the Executive orders for each agency on
reorganization shall be:chanrob1es virtual 1aw library
x

Page 89 of 492

"c) Informed of their terminations.

"The constitutional mandate that no officer or employee of the civil service shall be removed
or suspended except for cause as provided by law (Sec. 2(4) (sic), Article IX-B of the 1987
Constitution) does not apply to employees who are separated from office as a result of the
reorganization of that Bureau as directed in Executive Order No. 127.
x

"Regarding your (third) query, the issue as to the constitutionality of Executive Order No. 127
is set at rest, after the Supreme Court resolved to dismiss the petition
for certiorari questioning its enforceability, for lack of merit (see Jose v. Arroyo, Et Al.,
supra)." (Opinion No. 41, s. 1988, March 3, 1988) (Emphasis supplied)
The former Chairman of the Civil Service Commission, Celerina G. Gotladera, likewise
periodically consulted by Commissioner Mison, also expressed the opinion that "it is not a
prerequisite prior to the separation of an employee pursuant to reorganization that he be
administratively charged." (Annex 16, p. 411, Rollo, G.R. No. 85310)
Moreover, the records show that the final selection and placement of personnel was done by a
Placement Committee, one of whose members is the Head of the Civil Service Commission
Field Office, namely, Mrs. Purificacion Cuerdo. The appointment of employees made by
Commissioner Mison was based on the list approved by said Placement Committee.
But the majority further faults Mison for defying the Presidents directive to halt further layoffs as a consequence of reorganization, citing OP Memo of 14 October 1987,
reading:jgc:chanrobles.com.ph
"Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that
there will be no further lay-offs this year of personnel as a result of the government
reorganization." (p 45, Decision)
The foregoing, however, must be deemed superseded by later developments, namely, the
grant to Commissioner Mison by the President on 22 December 1987 of a grace period until
the end of February 1988 within which to completely undertake the reorganization of the
Bureau of Customs, which was, in fact, accomplished by 28 February 1988.
To further show lack of good faith, the majority states that Commissioner Mison failed to
observe the procedure laid down by EO 17, supra, directing inter alia that a notice of
separation be issued to an employee to be terminated indicating therein the reason/s or
ground/s for such separation. That requirement, however, does not appear in Section S9 of EO
127, which provides on the contrary "that those incumbents whose positions are not included
in the new position structure and staffing pattern of the Ministry or who are not reappointed
shall be deemed separated from the service." The right granted by EO 17 to an employee to
be informed of the ground for his separation must be deemed to have been revoked by the
repealing clause of EO 127 (Section 67) providing that "all laws, ordinances or parts thereof,

Page 90 of 492

which are inconsistent with this Executive Order, are hereby repealed and modified
accordingly." chanrobles law library
Moreover, Section 11 of EO 17 explicitly excepts from its coverage a reorganization pursuant
to EO 5. Thus
"The Executive Order shall not apply to elective officials or those designated to replace them,
presidential appointees, casual and contractual employees, or officials and employees removed
pursuant to disciplinary proceedings under the Civil Service law and rules, and to those laid off
as a result of reorganization undertaken pursuant to Executive Order No. 5." (Emphasis ours)
That EO 127 was issued pursuant to or in implementation of EO 5, is shown by its introductory
portion reading:jgc:chanrobles.com.ph
"Recalling that the reorganization of the government is mandated expressly by Article II,
Section 1 (a) and Article III of the Freedom Constitution;
"Having in mind that pursuant to Executive Order No. 5 (1986), it is directed that the
necessary and proper changes in the organizational and functional structures of the
government, its agencies and instrumentalities, be effected in order to promote efficiency and
effectiveness in the delivery of public service;" (Emphasis supplied)
Constitutionality of Republic Act No. 6656
The majority also relies on Republic Act No. 6656 entitled an "Act to Protect the Security of
Tenure of Civil Service Officers and Employees in the Implementation of Government
Reorganization," particularly Section 2 thereof, to test the good faith of Commissioner Mison.
We are of the view, however, that in providing for retroactivity in its Section 13, RA 6656
clashes frontally with SECTION 16.
1) SECTION 16 clearly recognizes that career service employees separated from the service by
reason of the "complete reorganization of the government" pursuant to Proclamation No. 3
may be separated NOT FOR CAUSE. And yet, RA 6656 requires the exact opposite
separation FOR CAUSE. It would not be remiss to quote the provision
again:jgc:chanrobles.com.ph
"SEC. 2. No officer or employee in the career service shall be removed except for a valid cause
and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona
fide reorganization, a position has been abolished or rendered redundant or there is a need to
merge, divide, or consolidate positions in order to meet the exigencies of the service, or other
lawful causes allowed by the Civil Service law. The existence of any or some of the following
circumstances may be considered as evidence of bad faith in the removals made as a result of
reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved
party: (a) Where there i8 a significant increase in the number of positions in the new staffing
pattern of the department or agency concerned; (b) Where an office is abolished and another
performing substantially the same functions is created; (c) Where incumbents are replaced by
those less qualified in terms of status of appointment, performance and merit; (d) Where
there is a reclassification of offices in the department or agency concerned and the reclassified

Page 91 of 492

offices perform substantially the same functions as the original offices; (e) Where the removal
violates the order of separation provided in Section 3 hereof (Republic Act No. 6156)
The standards laid down are the "traditional" criteria for removal of employees from the career
service, e.g. valid cause, due notice and hearing, abolition of, or redundancy of offices.
Proclamation No. 3, on the other hand, effectuates the "progressive" type of reorganization
dictated by the exigencies of the historical and political upheaval at the time. The "traditional"
type is limited in scope. It is concerned with the individual approach where the particular
employee involved is charged administratively and where the requisites of notice and hearing
have to be observed. The "progressive" kind of reorganization, on the other hand, is the
collective way. It is wider in scope, and is the reorganization contemplated under SECTION
16.chanroblesvirtual|awlibrary
2) By providing for reinstatement in its Section 9, RA 6656 adds a benefit not included in
SECTION 16. The benefits granted by the latter provision to employees separated NOT FOR
CAUSE but as a consequence of reorganization are "separation pay, retirement, and other
benefits accruing to them under the laws of general application in force at the time of their
separation." The benefit of reinstatement is not included. RA 6656, however, allows
reinstatement. That it cannot do because under SECTION 16, it is not one of the laws "in force
at the time of their separation."cralaw virtua1aw library
The Constitution is the paramount law to which all laws must conform. It is from the
Constitution that all statutes must derive their bearings. The legislative authority of the State
must yield to the expression of the sovereign will. No statutory enactment can disregard the
Charter from which it draws its own existence (Phil. Long Distance Telephone Co. v. Collector
of Internal Revenue, 90 Phil. 674 [1952]). But, that is exactly what RA 6656 does in providing
for retroactivity it disregards and contravenes a Constitutional imperative. To save it, it
should be applied and construed prospectively and not retroactively notwithstanding its
explicit provision. Then, and only then, would it make good law.
Effects of Reorganization
To be sure, the reorganization could effect the tenure of members of the career service as
defined in Section 5, Article IV of Presidential Decree No. 807, and may even result in the
separation from the office of some meritorious employees. But even then, the greater good of
the greatest number and the right of the citizenry to a good government, and as they
themselves have mandated through the vehicle of Proclamation No. 3, provide the justification
for the said injury to the individual. In terms of values, the interest to fan employee to
security of tenure must yield to the interest of the entire populace and to an efficient and
honest government.
But a reorganized employee is not without rights. His right lies in his past services, the
entitlement to which must be provided for by law. EO 127 provides for the same in its Section
59, and so does SECTION 16 when the latter specified that career civil service employees
separated from the service not for cause:jgc:chanrobles.com.ph
"shall be entitled to appropriate separation pay and to retirement and other benefits accruing
to them under the laws of general application in force at the time of their separation. In lieu
thereof, at the option of the employees, they may be considered for employment in the

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Government or in any of its subdivisions, instrumentalities, or agencies, including

government-owned or controlled corporations and their subsidiaries. This provision also
applies to career officers whose resignation, tendered in line with the existing policy, has been
accepted."cralaw virtua1aw library
This is a reward for the employees past service to the Government. But this is all. There is no
vested property right to be reemployed in a reorganized office.
"The right to an office or to employment with government or any of its agencies is not a
vested property right, and removal therefrom will not support the question of due process"
(Yantsin v. Aberdeen, 54 Wash 2d 787, 345 P 2d 178). A civil service employee does not have
a constitutionally protected right to his position, which position is in the nature of a public
office, political in character and held by way of grant or privilege extended by government;
generally he has been held to have no property right or vested interest to which due process
guaranties extend (See Taylor v. Beckham 178 U. S. 548, 44 L Ed. 1187; Angilly v. US (CA2
NY) 199 F 2d 642; People ex. rel. Baker v. Wilson, 39 III App 2d 443, 189 NE 2d 1; Kelliheller
v. NY State Civil Service Com., 21 Misc 2d 1034, 194 NYS 2d 89).
To ensure, however, that no meritorious employee has been separated from the service, there
would be no harm, in fact, it could do a lot of good, if the Commissioner of Customs reviews
the evaluation and placements he has so far made and sees to it that those terminated are
included in a consolidated list to be given preference by departments who are recruiting
(Section 2[a], BOC Memorandum, January 6, 1988).chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
Conclusion
Premises considered, and subject to the observation hereinabove made, it is our considered
view that the separation from the service "NOT FOR CAUSE but as a result of the
reorganization pursuant to Proclamation No. 3 dated March 25, 1986" of the affected officers
and employees of the Bureau of Customs should be UPHELD, and the Resolutions of the Civil
Service Commission, dated 30 June 1988, 20 September 1988, and 16 November 1988 should
be SET ASIDE for having been issued in grave abuse of discretion.
Republic Act No. 6656, in so far as it provides for retroactivity, should be declared
UNCONSTITUTIONAL for being repugnant to the letter and spirit of Section 16, Article XVIII of
the 1987 Constitution.
Fernan, C.J., Narvasa, Feliciano and Regalado, JJ., concur.
CRUZ, J., concurring:chanrob1es virtual 1aw library
I concur with the majority view so ably presented by Mr. Justice Abraham F. Sarmiento. While
additional comments may seem superfluous in view of the exhaustiveness of his ponencia, I
nevertheless offer the following brief observations for whatever they may be worth.chanrobles
virtual lawlibrary
Emphasizing Article XVII, Section 16 of the Constitution, the dissenting opinion considers the
ongoing government reorganization valid because it is merely a continuation of the

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reorganization begun during the transition period. The reason for this conclusion is the phrase
"and the reorganization following the ratification of the Constitution," that is to say, after
February 2, 1987, appearing in the said provision. The consequence (and I hope I have not
misread it) is that the present reorganization may still be undertaken with the same
"absoluteness" that was allowed the revolutionary reorganization although the Freedom
Constitution is no longer in force.
Reorganization of the government may be required by the legislature even independently of
specific constitutional authorization, as in the case, for example, of R.A. No. 51 and B.P. No.
129. Being revolutionary in nature, the reorganization decreed by Article III of the Freedom
Constitution was unlimited as to its method except only as it was later restricted by President
Aquino herself through various issuances, particularly E.O. No. 17. But this reorganization, for
all its permitted summariness, was not indefinite. Under Section 3 of the said Article III, it was
allowed only up to February 29, 1987 (which we advanced to February 2, 1987, when the new
Constitution became effective).
The clear implication is that any government reorganization that may be undertaken
thereafter must be authorized by the legislature only and may not be allowed the special
liberties and protection enjoyed by the revolutionary reorganization. Otherwise, there would
have been no necessity at all for the time limitation expressly prescribed by the Freedom
Constitution.
I cannot accept the view that Section 16 is an authorization for the open-ended reorganization
of the government "following the ratification of the Constitution." I read the provision as
merely conferring benefits deservedly or not on persons separated from the government
as a result of the reorganization of the government, whether undertaken during the transition
period or as a result of a law passed thereafter. What the provision grants is privileges to the
retirees, not power to the government. It is axiomatic that grants of power are not lightly
inferred, especially if these impinge on individual rights, and I do not see why we should
depart from this rule.
To hold that the present reorganization is a continuation of the one begun during the
transition period is to recognize the theory of the public respondent that all officers and
employees not separated earlier remain in a hold-over capacity only and so may be replaced
at any time even without cause. That is a dangerous proposition that threatens the security
and stability of every civil servant in the executive department. What is worse is that this
situation may continue indefinitely as the claimed "progressive" reorganization has no
limitation as to time.
Removal imports the forcible separation of the incumbent before the expiration of his term and
can be done only for cause as provided by law. Contrary to common belief, a reorganization
does not result in removal but in a different mode of terminating official relations known as
abolition of the office (and the security of tenure attached thereto.) The erstwhile holder of the
abolished office cannot claim he has been removed without cause in violation of his
constitutional security of tenure. The reason is that the right itself has disappeared with the
abolished office as an accessory following the principal. (Ocampo v. Sec. of Justice, 51 O.G.
147; De la Llana v. Alba, 112 SCRA 294; Manalang v. Quitoriano, 94 Phil. 903.)
This notwithstanding, the power to reorganize is not unlimited. It is essential that it be based

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on a valid purpose, such as the promotion of efficiency and economy in the government
through a pruning of offices or the streamlining of their functions. (Cervantes v. AuditorGeneral, 91 Phil. 359.) Normally, a reorganization cannot be validly undertaken as a means of
purging the undesirables for this would be a removal in disguise undertaken en masse to
circumvent the constitutional requirement of legal cause. (Eradication of graft and corruption
was one of the expressed purposes of the revolutionary organization, but this was authorized
by the Freedom Constitution itself. In short, a reorganization, to be valid, must be done in
good faith. (Urgelio v. Osmea, 9 SCRA 317; Cuneta v. Court of Appeals, 1 SCRA 663; Cario
v. ACCFA, 18 SCRA 183.)
A mere recitation no matter how lengthy of the directives, guidelines, memoranda, etc.
issued by the government and the action purportedly taken thereunder does not by itself
prove good faith. We know only too well that these instructions, for an their noble and sterile
purposes, are rarely followed in their actual implementation. The reality in this case, as the
majority opinion has pointed out and as clearly established in the hearing we held, is that the
supposed reorganization was undertaken with an eye not to achieving the avowed objectives
but to accommodating new appointees at the expense of the dislodged petitioners. That was
also the finding of the Civil Service Commission, to which we must accord a becoming respect
as the constitutional office charged with the protection of the civil service from the evils of the
spoils system.chanroblesvirtuallawlibrary:red
The present administration deserves full support in its desire to improve the civil service, but
this objective must be pursued in a manner consistent with the Constitution. This praiseworthy
purpose cannot be accomplished by an indiscriminate reorganization that will sweep in its
wake the innocent along with the redundant and inept, for the benefit of the current favorites.
Endnotes:

1. Proc. No. 3, (PROVISIONAL CONST.), art. II, sec. 1(a).

2. Supra, art. III, secs. 1-4.
3. Proc. No. 1 (1986).
4. CONST. (1986), supra, art. 1, sec 3.
5. Supra.
6. The various "OIC cases", among them, Solis v. Pimentel, G.R. No. 73970, April 10, 1986;
Palma v. Banata, G.R. No. 74720, August 31, 1987; Association of Barangay Councils of Las
Pias v. Juntilla, G.R. No. 78965, November 17, 1987; Ramos v. Lorenzana, G.R. No. 80282
November 26, 1987; Del Monte v. Ferrer, G.R. 78963, January 13, 1988; Yasay v. Flores, G.R.
No. 81047, January 13, 1988; Yasay v. Flores, G.R. 81047, January 7, 1988; ending with De
Leon v. Esguerra, No. 78059, August 31, 1987, 153 SCRA 602.
7. Jose v. Arroyo, G.R. No. 78435, August 11, 1987; Palma-Fernandez v. De la Paz, No.
78496, August 15, 1988, 160 SCRA 751.

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8. Exec. Ord. No. 17, sec. 3.

9. 88 O.G. 2009-2024 (Apr., 1987).
10. Exec. Ord. No. 127, supra, secs. 33-38.
11. De Leon v. Esguerra, supra. The writer of this opinion dissented, and maintained that the
new Constitution was ratified on February 11, 1987.
12. Rollo, G.R. No. 85310, 317-31.
13. Id., 317.
14. Id., 8.
15. Rollo, G.R. No. 81954; rollo, G.R. No. 81967, 27; rollo, G.R. No. 82023, 37; see also rollo,
id., G.R. No. 85310, 8.
16. The last eighteen are the successful employees in the appeal with the Civil Service
Commission (subject of G.R. No. 85310) whose reinstatement the Commission ordered
pending further proceedings herein. We consider them impleaded as parties-respondents in
G.R. No. 85310. Also, the Customs employees involved have been impleaded as parties in
more than one petition either as petitioners or respondents.
17. Rollo, id., G.R. No. 85310, 8; according, however, to the petitioners in G.R. 86241, a total
of 397 employees were terminated. Id., 260; former Sen. Ambrosio Padilla, amicus curiae,
placed the figure at 493 (G.R. No. 85310, id., 993).
18. Rollo, id., G.R. No. 85310, 79; also rollo, G.R. No. 85335, 36.
19. Rollo, id., G.R. No. 85310, 424.
20. Rollo, G.R. No. 86241, 144.
21. Senen Dimaguila and Romulo Badillo earlier instituted in this Court G.R. Nos. 81968 and
81955 but were allowed, by our Resolution of July 5, 1988, to withdraw and join the appeal
subject of the Civil Service Commissions Resolution of November 11, 1988. See rollo, G.R.
No. 82023, 169.
22. 84 O.G. Supp. 1-4 (June, 1988).
23. Supra, 3.
24. CONST. (1987), art. XVIII, sec. 16.
25. This was raised by the Civil Service Commission in G.R. No. 86241. Failure to exhaust
administrative remedies was raised in G.R. No. 81954 and 81917 by the Solicitor General.

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26. Sarmiento III v. Mison, No. L-79974, December 17, 1987, 153 SCRA 549, 551-552.
27. Pres. Decree No. 807, sec. 39. The provision reads: "Appeals. (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 of 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; or
(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."cralaw
virtua1aw library
28. Rep. Act No. 6656, supra, sec. 8. The provision reads: "Sec. 8. An officer or employee who
is still not satisfied with the decision of the appointing authority may further appeal within ten
(10) days from receipt thereof to the Civil Service Commission which shall render a decision
thereon within thirty (30) days and whose decision shall be final and executory."cralaw
virtua1aw library
29. CONST., art. IX, sec. 7. The provision reads: "Sec. 7. 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."cralaw virtua1aw library
30. Rollo, id., G.R. No. 85310, 82.
31. Id., 415.
32. CONST. (1987), supra.
33. See Aratuc v. Commission on Elections, Nos. L-49705-09, 49717-21, February 8, 1979, 88
SCRA 251.
34. Supra, 271.
35. Supra.
36. Aratuc, supra, 270.
37. CONST. (1987), supra, art. IX(c), sec. 2(2). To be more precise, the 1987 Constitution
gives the Commission "exclusive original jurisdiction over all [election] contests."cralaw

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virtua1aw library
38. Supra, art. IX, sec. 7.
39. Aratuc, supra, 271; Emphasis supplied.
40. Rep. Act No. 6656, supra, sec. 8.
41. RULES OF COURT, Rule 65, sec. 1.
42. CONST. (1987), art. IX, sec. 7, supra.
43. Phil. American Life Ins. Co. v. Social Security Com., No. L- 20383, May 24, 1967, 20 SCRA
162.
44. Exec. Ord. No. 127, supra, sec. 59.
45. Supra.
46. Rollo, id., G.R. No. 81954, 36.
47. Exec. Ord. No. 127, supra, sec. 34; rollo, id., G.R. No. 81954.
48. Exec. Ord. No. 127, supra, sec. 59.
49. Rollo, id., G.R. No. 81954, 12; emphasis in the original.
50. CONST. (1986), Supra, art. IX, sec. 2.
51. CONST. (1987), supra, art IX(B), sec. 2(3).
52. August 8, 1986.
53. Supra, sec. 1(a).
54. G.R. No. 78435, August 11, 1987.
55. Supra, 3.
56. CONST. (1987), supra, art. XVIII, sec. 16.
57. Rollo, id, G.R. No. 81954, 216; rollo, id., G.R. No. 81967, 64; rollo, id., G.R. No. 82023,
76.
58. Supra.
59. See Exec. Ord. No. 17, supra, sec. 1.
60. Rollo, id., G.R. No. 85310, 18; rollo, id., G.R. No. 86241, 14.

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61. Id.; id., 13.

62. Id., 37; id., 33.
63. CONST. (1987), art. XVIII, sec. 16, supra.
64. See fn. 11.
65. CONST. (1935), art. XVI, sec. 4.
66. CONST. (1973), art. XVII, sec. 9.
67. CONST. (1986); art. III, sec. 2, supra.
68. Ginson v. Municipality of Murcia, No. L-46585, February 8, 1988, 157 SCRA 1; De la Llana
v. Alba, No. 57883, March 12, 1982, 112 SCRA 294; Cruz v. Primicias, Jr., No. L-28573, June
13, 1968, 23 SCRA 998.
69. III RECORD OF THE CONSTITUTIONAL COMMISSION, 1615-1616 (1986).
70. De Leon v. Esguerra, supra; Palma-Fernandez v. De la Paz, supra.
71. Exec. Ord. No. 17, supra.
** Paradoxically, Executive Order No. 17 would have provided a "cause" for removal.
72. OP Memo (October 14, 1987).
73. Supra, see fn. 7.
74. Arroyo, supra, 3.
75. The petitioner was Leonardo Jose, a Collector III at the Bureau of Customs.
76. Supra, 2.
77. 55 Phil. 565 (1930).
78. Supra.
79. Art. III, sec. IX(B), sec 2(3).
80. Supra. In Palma-Fernandez, we upheld claims of security of tenure in the absence of a
bona fide reorganization. In that case, there was no valid abolition of an office but merely, a
change in the name of position. We did not foreclose therein the validity of a removal "not for
cause," provided that there is a valid reorganization.
81. Ginson v. Municipality of Murcia, supra; De la Llana v. Alba Supra; Cruz v. Primicias, Jr.,

Page 99 of 492

supra.
82. Palma-Fernandez, supra. In that case, the office of "Chief of Clinic" was purportedly
abolished and in its place an office of "Assistant Director for Professional Services" was
created. We held that the two positions "are basically one and the same except for the change
of nomenclature." (757.)
83. Ginson, supra; Cruz, supra.
*** Although as we also said, Executive Order No. 17 itself imposed a "cause" for removal
under the Freedom Constitution.
84. Rep. Act No. 6156, supra.
85. See G.R. Nos. 81964, 81967, id., 10-11
86. G.R. No. 86421, id., 31.
87. OP Memo (Oct., 14, 1987), supra.
88. See Free Telephone Workers Union v. Minister of Labor and Employment, No. 58184,
October 30, 1981, 108 SCRA 757.
89. Supra. With respect to Vicente Feria, Jr., the records reveal that his appointment was
extended on April 22, 1986. (G.R. No. 81967, id., 7.) For that reason, he cannot be said to be
an "incumbent" for purposes of reorganization, to whom a reappointment may be issued.
Because his appointment came after the promulgation of the Freedom Constitution, he is, to
all intents and purposes, an appointee as a result of reorganization.
90. Supra, 757.
91. Supra, sec. 9.
92. Supra, sec. 13.
93. Supra, sec. 2.
MELENCIO-HERRERA, J., dissenting:chanrob1es virtual 1aw library
1. Executive Orders Nos. 116 (Agriculture and Food); 117 (Education, Culture and Sports);
119 (Health); 120 (Tourism); 123 (Social Welfare and Development); 124 (Public Works and
Highways); 125 (Transportation and Communication) 126 (Labor and Employment); 128
(Science and Technology; 129 (Agrarian Reform); 131 (Natural Resources); 132 (Foreign
Affairs); and 133 (Trade and Industry).

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EN BANC
[G.R. No. 57883. March 12, 1982.]
GUALBERTO J. DE LA LLANA, Presiding Judge, Branch II of the City Court of
Olongapo, ESTANISLAO L. CESA, JR., FIDELA Y. VARGAS, BENJAMIN C. ESCOLANGO,
JUANITO C. ATIENZA, MANUEL REYES ROSAPAPAN, JR., VIRGILIO E. ACIERTO, and
PORFIRIO AGUILLON AGUILA, Petitioners, v. MANUEL ALBA, Minister of Budget,
FRANCISCO TANTUITCO, Chairman, Commission on Audit, and RICARDO PUNO,
Minister of Justice, Respondents.
Fidela Vargas, Leonardo S. Gonzales and Raul Gonzales, for Petitioners.
Solicitor General Estelito Mendoza and Assistant Solicitor General Reynato S. Puno
forRespondents.
SYNOPSIS
Petitioners assailed the constitutionality of Batas Pambansa Blg. 129 entitled "An Act
Reorganizing the Judiciary, Appropriating Funds Therefore and for other Purposes," the same
being contrary to the security of tenure provision of the Constitution as it separates from the
judiciary Justices and judges of inferior courts from the Court of Appeals to municipal circuit
courts except the occupants of the Sandiganbayan and the Court of Tax Appeals, unless
appointed to the inferior courts established by such Act. They likewise impute lack of good
faith in its enactment and characterize as undue delegation of legislative power to the
President his authority to fix the compensation and allowances of the Justices and judges
thereafter appointed and the determination of the date when the reorganization shall be
deemed completed. The Solicitor General maintains that there is no valid justification for the
attack on the constitutionality of the statute, it being a legitimate exercise of the power vested
in the Batasang Pambansa to reorganize the judiciary, the allegations of absence of good faith
as well as the attack on the independence of the judiciary being unwarranted and devoid of
any support in law.
After an intensive and rigorous study of all the legal aspects of the case, the Supreme Court
dismissed the petition, the unconstitutionality of Batas Pambansa Blg. 129 not having been
shown. It held that the enactment thereof was in answer to a pressing and urgent need for a
major reorganization of the judiciary; that the attendant abolition of the inferior courts which
shall cause their incumbents to cease from holding office does not impair the independence of
the judiciary and the security of tenure guarantee as incumbent justices and judges with good
performance and clean records can be named anew in legal contemplation without interruption
in the continuity of their service; that the provision granting the President authority to fix the
compensation and allowances of the Justices and judges survives the test of undue delegation
of legislative power, a standard having been clearly adopted therefor; that the reorganization
provided by the challenged Act will be carried out in accordance with the Presidents
constitutional duty to take care that the laws be faithfully executed, and the judiciarys
commitment to guard constitutional rights.
The petition was dismissed. Associate Justice Claudio Teehankee dissented in a separate
opinion; Justices Felix V. Makasiar and Venicio Escolin concurred with the main opinion;

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Justice Hermogenes Concepcion concurred in the result; Justices Antonio P. Barredo, Ramon
C. Aquino, Ramon C. Fernandez, Juvenal K Guerrero, Ameurfina Melencio-Herrera and Vicente
G. Ericta concurred in separate opinions; Justices Vicente Abad-Santos and Efren I. Plana
submitted separate concurring and dissenting opinions.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; PARTIES; CAPACITY TO SUE; PETITIONERS
LEGAL STANDING DEMONSTRATED. The argument as to the lack of standing of petitioners
is easily resolved. As far as Judge de Ia Llana is concerned, he certainly falls within the
principle set forth in Justice Laurels opinion in People v. Vera, 65 Phil. 56 (1937). Thus: "The
unchallenged rule is that the person who impugns 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 of its enforcement." The other petitioners as members of the bar and officers
of the court cannot be considered as devoid of "any personal and substantial interest" on the
matter. There is relevance to this excerpt from a separate opinion in Aquino, Jr. v.
Commission on Elections, L-40004, Jan. 31, 1975; "Then there is the attack on the standing of
petitioners, as vindicating at most what they consider a public right and not protecting their
rights as individuals. This is to conjure the specter of the public right dogma at an inhibition to
parties intent on keeping public officials staying on the path of constitutionalism. As was so
well put by Jaffe: `The protection of private right is an essential constituent of public interest
and, conversely, without a well-ordered state there could be no enforcement of private rights.
Private and public interests are, both in a substantive and procedural sense, aspects of the
totality of the legal order. Moreover, petitioners have convincingly shown that in their capacity
as taxpayers, their standing to sue has been amply demonstrated.
2. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION ACT OF 1980;
ENACTMENT THEREOF IN ANSWER TO A PRESSING AND URGENT NEED; GOOD FAITH
OBSERVED IN ITS ENACTMENT. The enactment of Batas Pambansa Blg. 129 would firstly,
result in the attainment "of more efficiency in the disposal of cases. Secondly, the
improvement in the quality of justice dispensed by the courts is expected as a necessary
consequence of the easing of the courts dockets. Thirdly, the structural changes introduced in
the bill, together with the reallocation of jurisdiction and the revision of the rules of procedure,
are designated to suit the court system to the exigencies of the present day Philippine society,
and hopefully, of the foreseeable future." It may be observed that the volume containing the
minutes of the proceedings of the Batasang Pambansa show that 590 pages were devoted to
its discussion. It is quite obvious that it took considerable time and effort as well as exhaustive
study before the act was signed by the President on August 14, 1981. With such a
background, it become quite manifest how lacking in factual basis is the allegation that its
enactment is tainted by the vice of arbitrariness. What appears undoubted and undeniable is
the good faith that characterized its enactment from its inception to the affixing of the
Presidential signature.chanroblesvirtuallawlibrary
3. ID.; ID.; ID.; RESULTING ABOLITION OF COURTS IN GOOD FAITH, WITH DUE
RECOGNITION OF THE SECURITY OF TENURE GUARANTEE; VALIDITY OF ABOLITION OF AN
OFFICE, SETTLED RULE. Nothing is better settled in our law than that the abolition of an
office within the competence of a legitimate body if done in good faith suffers from no

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infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr., L-28573, June 13,
1968, reiterated such a doctrine: "We find this point urged by respondents, to be without
merit. No removal or separation of petitioners from the service is here involved, but the
validity of the abolition of their offices. This is a legal issue that is for the Courts to decide. It
is well-known rule also that valid abolition of offices is neither removal nor separation of the
incumbents. . . . And, of course, if the abolition is void, the incumbent is deemed never to
have ceased to hold office. The preliminary question laid at rest, we pass to the merits of the
case. As well-settled as the rule that the abolition of an office does not amount to an illegal
removal of its incumbent is the principle that, in order to be valid, the abolition must be made
in good faith." The above excerpt was quoted with approval in Bendanillo, Sr. v. Provincial
Governor, L-28614, Jan. 17, 1974, two earlier cases enunciating a similar doctrine having
preceded it. As with the offices in the other branches of the government, so it is with the
Judiciary. The test remains whether the abolition is in good faith. As that element is
conspicuously present in the enactment of Batas Pambansa Blg. 129, then the lack of merit of
this petition becomes even more apparent.
4. ID.; ID; ID.; ENACTMENT THEREOF MAINTAINS UNIMPAIRED THE INDEPENDENCE OF THE
JUDICIARY; TERMINATION BY VIRTUE OF THE ABOLITION OF THE OFFICE DOES NOT IMPAIR
SECURITY OF TENURE; SUPREME COURT TO BE CONSULTED IN THE IMPLEMENTATION OF
THE REORGANIZATION OF THE JUDICIARY. Petitioners contend that the abolition of the
existing Inferior Courts collides with the security of tenure enjoyed by incumbent Justices and
judges under Article X, Section 7 of the Constitution. There was a similar provision the 1935
Constitution. It did not, however, go as far as conferring on this Tribunal the power to
supervise administratively inferior courts. Moreover, this Court is empowered "to discipline
judges of inferior courts and, by a vote of at least eight members, order their dismissal. "Thus
it possesses the competence to remove judges. Under the Judiciary Act, it was the President
who was vested with such power. Removal is, of course, to be, distinguished from termination
by virtue of the abolition of the office. After the abolition, there is in law no occupant. In case
of removal, there is an office with an occupant who would thereby lose his position. It is in
that sense that from the stand-point of strict law, the question of any impairment of security
of tenure does not arise. Nonetheless, for the incumbents of Inferior Courts abolished, the
effect is one of separation. As to its effect, no distinction exists between removal and the
abolition of the office. Realistically, it is devoid of significance. He ceases to be a member of
the Judiciary. In the implementation of the assailed legislation, therefore, it would be in
accordance with accepted principles of constitutional construction that as far as incumbent
justices and judges are concerned, this Court be consulted and that its view be accorded, the
fullest consideration. No fear need be entertained that there is a failure to accord respect to
the basic principle that this Court does not render advisory opinions. No question of law is
involved. If such were the case, certainly this Court could not have its say prior to the action
taken by either of the two departments. Even then, it could do so but only by way of deciding
a case where the matter has been put in issue. Neither is there any intrusion into who shall be
appointed to the vacant positions created by the reorganization. That remains in the hands of
the Executive to whom it properly belongs. There is no departure therefore from the tried and
tested ways of judicial power. Rather what is sought to be achieved by this liberal
interpretation is to preclude any plausibility to the charge that in the exercise of the conceded
power of reorganizing the Inferior Courts, the power of removal of the present incumbents
vested in this Tribunal is ignored or disregarded. The challenged Act would thus be free from
any unconstitutional taint, even one not readily discernible except to those predisposed to
view it with distrust. Moreover, such a construction would be in accordance with the basic

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principle that in the choice of alternatives between one which would save and another which
would invalidate a statute, the former is to be preferred. There is an obvious way to do so.
The principle that the Constitution enters into and forms part of every act to avoid any
unconstitutional taint must be applied.
5. ID.; ID.; ID.; AUTHORITY OF THE PRESIDENT TO FIX THE COMPENSATION AND
ALLOWANCES OF JUSTICES AND JUDGES NOT AN UNDUE DELEGATION OF LEGISLATIVE
POWER; EXISTENCE OF A STANDARD TO AVOID THE TAINT OF UNDUE DELEGATION CLEAR.
Petitioners would characterize as an undue delegation of legislative power to the President
the grant of authority to fix the compensation and the allowances of the Justices and judges
thereafter appointed. A more careful reading of the challenged Batas Pambansa Blg. 129
ought to have cautioned them against raising such an issue. The language of the statute is
quite clear. The questioned provision reads as follows: "Intermediate Appellate Justices,
Regional Trial Judges, Metropolitan Trial Judges, Municipal Trial Judges, and Municipal Circuit
Trial Judges shall receive such compensation and allowances as may be authorized by the
President along the guidelines set forth in Letter of Implementation No. 93 pursuant to
Presidential Decree No. 985, as amended by Presidential Decree No. 1597." (Chapter IV, Sec.
41 of Batas Pambansa Blg. 129) The existence of a standard is thus clear. The basic postulate
that underlies the doctrine of non-delegation is that it is the legislative body which is entrusted
with the competence to make laws and to alter and repeal them, the test being the
completeness of the statute in all its terms and provisions when enacted. As pointed out in
Edu v. Ericta, L-32096, Oct. 24, 1970, "To avoid the taint of unlawful delegation, there must
be a standard, which implies at the very least that the legislature itself determines matters of
principle and lays down fundamental policy. Otherwise, the charge of complete abdication may
be hard to repeal. A standard thus defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances under
which the legislative command is to be effected. It is the criterion by which legislative purpose
may be carried out. Thereafter, the executive or administrative office designated may in
pursuance of the above guidelines promulgate supplemental rules and regulations. The
standard may be either express or implied. If the former, the non-delegation objection is
easily met. The standard though does not have to be spelled out specifically. It could be
implied from the policy and purpose of the act considered as a whole."cralaw virtua1aw library
6. ID.; ID.; ID.; NO AMBIGUITY EXISTS IN THE EXECUTION OF THE REORGANIZATION LAW.
Another objection based on the absence in the statute of what petitioners refer to as a
"definite time frame limitation" is equally bereft of merit. They ignore the categorical language
of this provision: "The Supreme Court shall submit to the President, within thirty (30) days
from the date of the effectivity of this Act, a staffing pattern for all courts constituted pursuant
to this Act which shall be the basis of the implementing order to be issued by the President in
accordance with the immediately succeeding section." (Sec. 43, Batas Pambansa Blg. 129)
The first sentence of the next Section is even more categorical: "The provisions of this Act
shall be immediately carried out in accordance with an Executive Order to be issued by the
President." (Sec. 44, Batas Pambansa Blg. 129) Certainly petitioners cannot be heard to argue
that the President is insensible to his constitutional duty to take care that the laws be faithfully
executed. In the meanwhile, the existing Inferior Courts affected continue functioning as
before, "until the completion of the reorganization provided in this Act as declared by the
President. Upon such declaration, the said courts shall be deemed automatically abolished and
the incumbents thereof shall cease to hold office. "There is no ambiguity. The incumbents of
the courts thus automatically abolished "shall cease to hold office." No fear need be

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entertained by incumbents whose length of service, quality of performance, and clean record
justify their being named anew, in legal contemplation without any interruption in the
continuity of their service. It is equally reasonable to assume that from the ranks of lawyers,
either in the government service, private practice, or law professors will come the new
appointees. In the event that in certain cases a little more time is necessary in the appraisal of
whether or not certain incumbents deserve reappointment, it is not from their standpoint
undesirable. Rather, it would be a reaffirmation of the good faith that will characterize its
implementation by the Executive. There is pertinence to this observation of Justice Holmes
that even acceptance of the generalization that courts ordinarily should not supply omissions
in a law, a generalization qualified as earlier shown by the principle that to save a statute that
could be done, "there is no canon against using common sense in construing laws as saying
what they obviously mean." (Cf, Roschen v. Ward, 279 US 337, 339 [1929])chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph
7. ID.; ID.; ID.; PARTICIPATION OF SEVERAL JUSTICES IN THE PREPARATION OF AN
ALTERNATIVE PLAN FOR REORGANIZATION NOT OBJECTIONABLE; SUPREME COURT
DIRECTLY INVOLVED WITH JUDICIAL REFORM. On the morning of the hearing of the
petition, petitioners sought to disqualify the Chief Justice and Associate Justices Ramon Aquino
and Ameurfina Melencio-Herrera because the first named was the Chairman and the other
two, members of the Committee on Judicial Reorganization. The motion was denied. It was
made clear then and there that not one of the three members of the Court had any hand in
the framing or in the discussion of Batas Pambansa Blg. 129. They were not consulted. They
did not testify. The challenged legislation is entirely the product of the efforts of the legislative
body. Their work was limited, as set forth in the Executive Order, to submitting alternative
plan for reorganization. That is more in the nature of scholarly studies. Ever since 1973, this
Tribunal has had administrative supervision over inferior courts. It has had the opportunity to
inform itself as to the way judicial business is conducted and how it may be improved. Even
prior to the 1973 Constitution, either the then Chairman or members of the Committee on
Justice of the then Senate of the Philippines consulted members of the Court in drafting
proposed legislation affecting the judiciary. It is not inappropriate to cite this excerpt from an
article in the 1975 Supreme Court Review: "In the Twentieth century the Chief Justice of the
United States has played a leading part in judicial reform. A variety of conditions have been
responsible for the development of this role, and foremost among them has been the creation
of explicit institutional structures designed to facilitate reform." Also: "Thus the Chief Justice
cannot avoid exposure to and direct involvement in judicial reform at the federal level and, to
the extent issues of judicial federalism arise, at the state level as well." (Fish, William Howard
Taft and Charles Evan Hughes, 1975 Supreme Court Review 123)
8. ID.; ID.; ID.; GUARANTEE OF JUDICIAL INDEPENDENCE OBSERVED. It is a cardinal
article of faith of our constitutional regime that it is the people who are endowed with rights,
to secure which a government is instituted. Acting as it does through public officials, it has to
grant them either expressly or impliedly certain powers. Those they exercise not for their own
benefit but for the body politic. The Constitution does not speak in the language of ambiguity:
"A public office is a public trust." (Art. XIII, Sec. I) That is more than a moral adjuration. It is
a legal imperative. The law may vest in a public official certain rights. It does so to enable
them to perform his functions and fulfill his responsibilities more efficiently. It is from that
standpoint that the security of tenure provision to assure judicial independence is to be
viewed. It is an added guarantee that justices and judges can administer justice undeterred by
any fear of reprisal or untoward consequence. Their judgments then are even more likely to be

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inspired solely by their knowledge of the law and the dictates of their conscience, free from
the corrupting influence of base or unworthy motives. The independence of which they are
assured is impressed with a significance transcending that of a purely personal right. As thus
viewed, it is not solely for their welfare. The challenged legislation was thus subjected to the
most rigorous scrutiny by this Tribunal, lest by lack of due care and circumspection, it allows
the erosion of that ideal so firmly embedded in the national consciousness.
9. ID.; ID.; ID.; ID.; JUDICIAL INDEPENDENCE PRESERVED DESPITE THE REORGANIZATION
OF INFERIOR COURTS. At emphasized by former Chief Justice Paras in Ocampo v. Secretary
of Justice, 57 O.G. 147(1955) "there is no surer guarantee of judicial independence than the
God-given character and fitness of those appointed to the Bench. The judges may be
guaranteed a fixed tenure of office during good behaviour, but if they are of such stuff as
allows them to be subservient to one administration after another, or to cater to the wishes of
one litigant after another, the independence of the Judiciary will be nothing more than a myth
or any empty ideal. Our judges, we are confident, can be of the type of Lord Coke, regardless
or in spite of the power of Congress we do not say unlimited but as herein exercised to
reorganize inferior courts."cralaw virtua1aw library
10. ID.; ID.; ID.; UPHOLDING THE CONSTITUTIONALITY THEREOF WILL NOT RESULT IN
DELETERIOUS CONSEQUENCES TO THE ADMINISTRATION OF JUSTICE. There is no reason
to assume that the failure of this suit to annul Batas Pambansa Blg. 129 would be attended
with deleterious consequences to the administration of justice. It does not follow that the
abolition In good faith of the existing inferior courts except the Sandiganbayan and the Court
of Tax Appeals and the creation of new ones will result in a judiciary unable or unwilling to
discharge with independence its solemn duty or one recreant to the trust reposed in it. Nor
should there be any fear that less than good faith will attend the exercise of the appointing
power vested in the Executive. It cannot be denied that an independent and efficient Judiciary
is something to the credit of any administration. Well and truly has it been said that the
fundamental principle of separation of powers assumes, and justifiably so, that the three
departments are as one in their determination to pursue the ideals and aspirations and to
fulfill the hopes of the sovereign people as expressed in the Constitution. Justice Malcolm in
Manila Electric Co. v. Pasay Transportation Company, 57 Phil. 600 (1932) said: "Just as the
Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by
any other department of the government, so should it as strictly confine its own sphere of
influence to the powers expressly or by implication conferred on it by the Organic Act." To that
basic postulate underlying our constitutional system, this Court remains committed.
BARREDO, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION ACT OF 1980 (BATAS
PAMBANSA BLG. 129); JUDICIAL REORGANIZATION NOT CONTRARY TO THE INDEPENDENCE
OF THE JUDICIARY PRINCIPLE. It being conceded that the power to create or establish
carries with it the power to abolish, and it is a legal axiom, or at least a pragmatic reality, that
the tenure of the holder of an office must of necessity end when his office no longer exists, We
have no alternative than to hold that petitioners invocation of the independence-of-thejudiciary principle of the Constitution is unavailing in the cases at bar. To insist that what
Batas Pambansa 129 is doing is just a renaming, and not a substantial and actual modification
or alteration of the present judicial structure or system, assuming a close scrutiny might
somehow support such a conclusion, is pure wishful thinking, it being explicitly and

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unequivocally provided in the Section in question that said courts "are deemed abolished" and
further, as if to make it most unmistakably emphatic, that "incumbents thereof shall cease to
hold office." Dura lex, sed lex.
2. ID.; ID.; ID.; JUDICIAL REORGANIZATION, AN URGENT NEED; TWO-FOLD OBJECTIVES OF
THE LAW ALIGNED WITH THE FOUNDATION OF THE PRINCIPLE OF INDEPENDENCE OF THe
JUDICIARY. Judicial reorganization becomes urgent and inevitable not alone because of
structural inadequacies of the system or of the cumbersomeness and technicality-peppered
and dragging procedural rules in force, but also when it becomes evident that a good number
of those occupying positions in the judiciary, make a mockery of justice and take advantage of
their office for selfish personal ends and yet, those in authority cannot expeditiously cope with
the situation under existing laws and rules. It is my personal assessment of the present
situation in our judiciary that its reorganization has to be of necessity two-pronged, for the
most ideal judicial system with the most perfect procedural rules cannot satisfy the people and
the interests of justice unless the men who hold positions therein possess the character,
competence and sense of loyalty that can guarantee their devotion to duty and absolute
impartiality, nay, impregnability to all temptations of graft and corruption, including the usual
importunings and the fearsome albeit improper pressures of the powers that be. I am certain
that Filipino people feel happy that Batas Pambansa 129 encompasses both of these objectives
which indeed are aligned with the foundation of the principle of independence of the
judiciary.chanrobles law library
3. ID.; CONSTITUTION; CHARTER TIMELESS EXCEPT FOR ADOPTION OF MEASURES DURING
VERY UNUSUAL INSTANCES; INTEGRITY OF THE FUNDAMENTAL LAW UNDIMINISHED
THEREBY. The Constitution is not just a cluster of high sounding verbiages spelling purely
idealism and nobility in the recognition of human dignity, protection of individual liberties and
providing security and promotion of the general welfare under a government of laws. The
fundamental law of the land is a living instrument which translates and adapts itself to the
demands of obtaining circumstances. It is written for all seasons, except for very unusual
instances that human ratiocination cannot justify to be contemplated by its language even if
read in its broadest sense and in the most liberal way. Verily, it is paramount and supreme in
peace and in war, but even in peace grave critical situations arise demanding recourse to
extraordinary solutions. Paraphrasing the Spanish adage, "Grandes males, grandes remedios,"
such inordinary problems justify exceptional remedies. And so, history records that in the face
of grave crises and emergencies, the most constitutionally idealistic countries have, at one
time or another, under the pressure of pragmatic considerations, adopted corresponding
realistic measures, which perilously tether along the periphery of their Charters, to the extent
of creating impressions, of course erroneous, that the same had been transgressed, although
in truth their integrity and imperiousness remained undiminished and unimpaired.
4. ID.; JUDICIARY; JUDICIAL REORGANIZATION; BATAS PAMBANSA BLG. 129
CONSTITUTIONALLY PERMISSIBLE FOR THE ATTAINMENT OF THE OBJECTS IT SEEKS TO
PURSUE. If indeed there could be some doubt as to the correctness of this Courts judgment
that Batas Pambansa 129 is not unconstitutional, particularly its Sec. 44, I am convinced that
the critical situation of our judiciary today calls for solutions that may not in the eyes of some
conform strictly with the letter of the Constitution but indubitably justified by its spirit and
intent. The Charter is not just a construction of words to whose literal ironclad meanings we
must feel hidebound, without regard to every Constitutions desirable inherent nature of
adjustability and adaptability to prevailing situations so that the spirit and fundamental intent

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and objectives of the framers may remain alive. Batas Pambansa 129 is one such adaptation
that comes handy for the attainment of the transcendental objectives it seeks to pursue.
While, to be sure, it has the effect of factually easing out some justices and judges before the
end of their respective constitutional tenure sans the usual administrative investigation, the
desirable end is achieved thru means that, in the light of the prevailing conditions, is
constitutionally permissible.
5. ID.; ID.; ID.; BATAS PAMBANSA 129 DOES NOT RENDER MEANINGLESS THE
INDEPENDENCE OF THE JUDICIARY; ABOLITION OF EXISTING COURTS ALLOWED BY THE
CONSTITUTION. Notwithstanding this decision, the independence of the judiciary in the
Philippines is far from being insubstantial, much less meaningless and dead. Batas Pambansa
129 has precisely opened our eyes to how, despite doubts and misgivings, the Constitution
can be so construed as to make it possible for those in authority to answer the clamor of the
people for an upright judiciary and overcome constitutional roadblocks more apparent than
real.chanrobles.com:cralaw:red
6. ID.; ID.; ID.; PRESIDENTIAL APPOINTEES TO THE BENCH WILL BE CAREFULLY
CONSIDERED. By this decision, the Court has in factual effect albeit not in constitutional
conception yielded generally to the Batasang Pambansa, and more specifically to the
President, its own constitutionally conferred power of removal of judges. Section 44 of the
Batasan Act declares that all of them shall be deemed to have ceased to hold office, leaving it
to the President to appoint those whom he may see fit to occupy the new courts. Thus, those
who will not be appointed can be considered as "ceasing to hold their respective offices," or,
as others would say they would be in fact removed. How the President will make his choice is
beyond Our power to control. But even if some may be eased out even without being duly
informed of the reason therefor, much less being given the opportunity to be heard, the past
actuations of the President on all matters of deep public interest should serve as sufficient
assurance that when he ultimately acts, he will faithfully adhere to his solemn oath "to do
justice to every man," hence, he will equip himself first with the fullest reliable information
before he acts.
AQUINO, J., concurring:chanrob1es virtual 1aw library
1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; DECLARATORY RELIEF AND PROHIBITION
NOT THE PROPER REMEDY TO TEST THE CONSTITUTIONALITY OF A LAW; NO JUSTICIABLE
CONTROVERSY IN CASE AT BAR. The petition should have been dismissed outright because
this Court has no jurisdiction to grant declaratory relief and prohibition is not the proper
remedy to test the constitutionality of the law. The petition is premature. No jurisdictional
question is involved. There is no justiciable controversy wherein the constitutionality of the law
is in issue. It is presumed to be constitutional. The lawmaking body before enacting it looked
into the constitutional angle.
2. ID.; ID.; ID.; PARTIES; PETITIONERS WITHOUT PERSONALITY TO ASSAIL THE
CONSTITUTIONALITY OF THE JUDICIARY REORGANIZATION LAW. Seven of the eight
petitioners are practising lawyers. They have no personality to assail the constitutionality of
the law even as taxpayers. The eighth petitioner, Gualberto J. de la Llana, a city judge, has no
cause of action for prohibition. He is not being removed from his position.
3. CONSTITUTIONAL LAW; JUDICIARY; JUDICIAL REORGANIZATION; BATAS PAMBANSA BLG.

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129; ENACTMENT THEREOF IN GOOD FAITH. The Judiciary Reorganization Law was enacted
in utmost good faith and not "to cloak an unconstitutional and evil purpose." In enacting the
said law, the lawmaking body acted within the scope of its constitutional powers and
prerogatives.
GUERRERO, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION ACT OF 1980;
OBJECTIVES. The institutional reforms and changes envisioned by the law are clearly
conducive to the promotion of national interests. The objectives of the legislation, namely: (a)
An institutional restructuring by the creation of an Intermediate Appellate Court, thirteen (13)
Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts; (b) A re-apportionment of jurisdiction geared towards greater efficiency; (c) A
simplification of procedures; and (d) The abolition of the inferior courts created by the
Judiciary Act of 1948 and other statutes, as approved by the Congress of the Philippines are
undoubtedly intended to improve the regime of justice and thereby enhance public good and
order. Indeed, the purpose of the Act as further stated in the Explanatory Note, which is "to
embody reforms in the structure, organization and composition of the Judiciary, with the aim
of improving the administration of justice, of decongesting judicial dockets, and coping with
the more complex problems on the present and foreseeable future" cannot but "promote the
welfare of society, since that is the final cause of law." (Cardozo, the Nature of the Judicial
Process, p. 66)
2. ID.; ID.; ID.; LAW CONSTITUTIONAL FROM THE STANDPOINT OF GENERAL UTILITY AND
FUNCTIONAL VALUE. From the standpoint of the general utility and functional value of the
Judiciary Reorganization Act, there should be no difficulty, doubt or disbelief in its legality and
constitutionality. That there are ills and evils plaguing the judicial system is undeniable. The
notorious and scandalous congestion of court dockets is too well-known to be ignored as are
the causes which create and produce such anomaly. Evident is the need to look for devices
and measures that are more practical, workable and economical.
3. ID.; ID.; ID.; ENACTMENT THEREOF PRESUMED REGULAR AND DONE IN GOOD FAITH.
In the light of the known evils and infirmities of the judicial system, it would be absurd and
unreasonable to claim that the legislators did not act upon them in good faith and honesty of
purpose and with legitimate ends. It is presumed that official duty has been regularly
performed. The presumption of regularity is not confined to the acts of the individual officers
but also applies to the acts of boards, such as administrative board or bodies, and to acts of
legislative bodies. Good faith is always to be presumed in the absence of proof to the contrary,
of which there is none in the case at bar. It could not be otherwise if We are to accord as We
must, full faith and credit to the lawmakers deep sense of public service and the judicious
exercise of their high office as the duly-elected representatives of the people.
4. ID.; ID.; ID.; ID.; RESULTANT ABOLITION OF COURTS; SUPREME COURT CANNOT
INQUIRE INTO THE WISDOM OF THE LAW. In Morfe v. Mutuc, L-20387, Jan. 31, 1968, the
Supreme Court held: "It is not the province of the courts to supervise legislation and keep it
within the bounds of propriety and common sense. That is primarily and exclusively a
legislative concern. The Courts are not supposed to override legitimate policy and . . . never
inquire into the wisdom of the law." Chief Justice Fernando who penned the Morfe decision
writes in The Constitution of the Philippines that while" (i)t is thus settled, to paraphrase Chief

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Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or

competence, not the wisdom of action taken, may be the basis for declaring a statute invalid,"
he adds that it is "useful to recall what was so clearly stated by Laurel that the Judiciary in the
determination of actual cases and controversies must reflect the wisdom and justice of the
people as expressed through their representatives in the executive and legislative
departments of the government." In any case, petitioners have not shown an iota of proof of
bad faith. There is no factual foundation of bad faith on record. I do not consider the
statement in the sponsorship speech for Cabinet Bill No. 42 of Minister of Justice Ricardo J.
Puno that the Bill would be a more efficient vehicle of "eliminating incompetent and unfit
Judges" as indicative of impermissible legislative motive.
5. ID.; ID.; ID.; SECURITY OF TENURE; NATURE AND CONCEPT OF A PUBLIC OFFICE. The
Justices and judges directly affected by the law, being lawyers, should know or are expected
to know the nature and concept of a public office. It is created for the purpose of effecting the
ends for which government has been instituted, which are for the common good, and not the
profit, honor or private interest of any one man, family or class of men. In our form of
government, it is fundamental that public offices are public trust, and that the person to be
appointed should be selected solely with a view to the public welfare. In the last analysis, a
public office is a privilege in the gift of the State.
6. ID.; ID.; ID.; ID.; ID.; NO VESTED INTEREST EXISTS IN AN OFFICE; JUDICIAL
APPOINTMENT TERMINATES WITH THE ABOLITION OF THE COURT. There is no such thing
as a vested interest or an estate in an office, or even an absolute right to hold office.
Excepting constitutional offices which provide for special immunity as regards salary and
tenure, no one can be said to have any vested right in an office or its salary. When an office is
created by the Constitution, it cannot be abolished by the legislature, but when created by the
State under the authority of the Constitution, it may be abolished by statute and the
incumbent deprived of his office. Acceptance of a judicial appointment must be deemed as
adherence to the rule that "when the court is abolished, any unexpired term is abolished also.
The Judge of such a court takes office with that encumbrance and knowledge. The Judges
right to his full term and his full salary are not dependent alone upon his good conduct, but
also upon the contingency that the legislature may for the public good, in ordaining and
establishing the courts, from time to time consider his office unnecessary and abolish it.
7. ID.; ID.; ID.; REMOVAL AND RE-APPOINTMENT OF JUDGES UNDER THE JUDICIARY
REORGANIZATION ACT, A PRESIDENTIAL POWER AND PREROGATIVE. The removal from
office of an incumbent is merely incidental to the valid act of abolition of the office as
demanded by the superior and paramount interest of the people. The bad and the crooked
judges must be removed. The good and the straight, sober judges should be reappointed but
that is the sole power and prerogative of the President who, I am certain, will act according to
the best interest of the nation and in accordance with his solemn oath of office "to preserve
and defend its Constitution, execute its laws, do justice to everyone." There and then the
proper balance between the desire to preserve private interest and the desideratum of
promoting the public good shall have been struck.chanroblesvirtual|awlibrary
8. ID.; ID.; ID.; CONSTRUCTION IN FAVOR OF THE CONSTITUTIONALITY OF THE LAW TO BE
ADOPTED. The Supreme Court has been called the conscience of the Constitution. It may be
the last bulwark of constitutional government. It must, however, be remembered "that
legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a

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degree as courts." (Missouri, K. & T. Co. v. May, 194 U.S. 267, 270) The responsibility of
upholding the Constitution rests not on the courts alone but on the legislatures as well. It
adheres, therefore, to the well-settled principle that "all reasonable doubts should be resolved
in favor of the constitutionality of a statute" for which reason it will not set aside a law as
violative of the Constitution "except in a clear case." (People v. Vera [1937], 65 Phil. 56).
9. ID.; ID.; ID.; SOCIAL JUSTIFICATION AND THE FUNCTIONAL UTILITY OF THE LAW
SUFFICIENT TO UPHOLD ITS CONSTITUTIONALITY. I view the controversy presented as a
conflict of opinions on judicial independence, whether impaired or strengthened by the law; on
reorganization of the courts, whether abolition of office or removal therefrom; and on
delegation of legislative power, whether authorized or unauthorized. Without detracting from
the merits, the force and brilliance of their advocacies based on logic, history and precedents,
I choose to stand on the social justification and the functional utility of the law to uphold its
constitutionality. In the light of contemporaneous events from which the New Republic
emerged and evolved new ideals of national growth and development, particularly in law and
government, a kind or form of judicial activism, perhaps similar to it, is necessary to justify as
the ratio decidendi of Our judgment.
DE CASTRO, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; JUDICIARY; CREATION AND ORGANIZATION OF COURTS, A
CONSTITUTIONAL PREROGATIVE OF THE LEGISLATURE. A creation and organization of
courts inferior to the Supreme Court is a constitutional prerogative of the legislature. This
prerogative is plenary and necessarily implies the power to reorganize said courts, and in the
process, abolish them to give way to new or substantially different ones. To contend otherwise
would be to forget a basic doctrine of constitutional law that no irrepealable laws shall be
passed.chanroblesvirtual|awlibrary
2. ID.; ID.; ID.; POWER TO CREATE STATUTORY COURTS INCLUDES THE POWER TO ABOLISH
THEM; JUDICIAL SECURITY OF TENURE NOT A LEGAL IMPEDIMENT TO THE EXERCISE
THEREOF. The power to create courts and organize them is necessarily the primary
authority from which would thereafter arise the security of tenure of those appointed to
perform the functions of said courts. In the natural order of things, therefore, since the
occasion to speak of security of tenure of judges arises only after the courts have first been
brought into being, the right to security of tenure takes a secondary position to the basic and
primary power of creating the courts to provide for a fair and strong judicial system. If the
legislature, in the exercise of its authority, deems it wise and urgent to provide for a new set
of courts, and in doing so, it feels the abolition of the old courts would conduce more to its
objective of improving the judiciary and raising its standard, the matter involved is one of
policy and wisdom into which the courts, not even the Supreme Court, cannot inquire, much
less interfere with. By this secondary position it has to the primary power of the legislature to
create courts, the security of tenure given to the incumbents should not be a legal impediment
to the exercise of that basic power of creating the statutory courts which, by necessary
implication, includes the power to abolish them in order to create new ones. This primary
legislative power is a continuing one, and the resultant right of security of tenure of those
appointed to said courts could not bring about the exhaustion of that power. Unquestionably,
the legislature can repeal its own laws, and that power can never be exhausted without, as a
consequence, violating a fundamental precept of constitutional and representative government
that no irrepealable laws shall be passed.

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3. ID.; ID.; JUDICIARY REORGANIZATION ACT OF 1980; AN EFFECTIVE AND EFFICIENT

SYSTEM OF ADMINISTRATION OF JUSTICE MORE IMPORTANT THAN THE SECURITY OF
TENURE OF JUDGES. The passage of the Judiciary Reorganization Act of 1980 is no more
than the exercise of the power vested by the Constitution on the legislative body of the
Republic. That power carries with it the duty and responsibility of providing the people with
the most effective and efficient system of administration of justice. This is by far of more
imperative and transcendental importance than the security of tenure of judges which,
admittedly, is one of the factors that would conduce to independence of the judiciary but
first of all, a good, efficient and effective judiciary. A judiciary wanting in these basic qualities
does not deserve the independence that is meant only for a judiciary that can serve best the
interest and welfare of the people which is the most primordial and paramount consideration,
not a judiciary in which the peoples faith has been eroded, a condition which the security of
tenure, in some instances, may even be contributory.
4. ID.; ID.; ID.; ID.; INFRINGEMENT OF THE RIGHT OF SECURITY OF TENURE JUSTIFIED BY
THE EXERCISE OF POLICE POWER. When two interests conflict as what had given rise to
the present controversy the duty of the legislature to provide society with a fair, efficient
and effective judicial system, on one hand, and the right of judges to security of tenure, on
the other, the latter must of necessity yield to the former. One involves public welfare and
interest more directly and on a greater magnitude than the right of security of tenure of the
judges which is, as is easily discernible, more of a personal benefit to just a few, as only the
judge affected could seek judicial redress of what he conceives to be its violation. Herein lies
the propriety of the exercise of "police power" of the State, if this concept which underlies
even the Constitution, has to be invoked as a constitutional justification of the passage of the
Act in question. That is, if a conflict between the primary power of the legislature to create
courts, and mere consequential benefit accorded to judges and justices after the creation of
the courts is indeed perceivable, which the writer falls to see, or, at least, would disappear
upon a reconciliation of the two apparently conflicting interests which, from the above
disquisition, is not hard to find. It is, without doubt, in the essence of the exercise of police
power that a right assessable by individuals may be infringed in the greater interest of the
public good and general welfare. This is demonstrated in how the rights and freedoms
enumerated in the Bill of Rights enjoyable by the entire people, not just be a handful in
comparison, are made subject to the lawful exercise of the police power of the State.
5. ID.; ID.; ID.; RESULTANT ABOLITION OF COURTS DOES NOT AMOUNT TO UNLAWFUL
REMOVAL OF JUDGES. The provision of Article XVII, Section 10 of the Constitution gives to
judicial officials no more than a guarantee that their retirement age as fixed in the
Constitution shall not be alterable at mere legislative pleasure. The equivalent provision in the
1935 Constitution was inserted for the first time because the retirement age before then was
provided merely by statute not by the Constitution. If it comes to their removal or suspension,
what gives them constitutional protection is the aforequoted provision which does not
contemplate abolition of office when done in good faith, for removal implies the existence of
the office, not when it is abolished. As has been held, abolition of office for no reason related
to public welfare or for the good of the service, let alone when done in bad faith, amounts to
an unlawful removal. The abolition of the courts as declared in the Act as a result of a
reorganization of the judiciary, as the title of the law curtly but impressively announces, can
by no means, from any viewpoint, be so branded. And whether by said reorganization, the
present courts would be deemed abolished, as the law expresses such an unmistakable intent,

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the matter is one for the sole and exclusive determination of the legislature. It rests entirely
on its discretion whether by the nature and extent of the changes it has introduced, it has
done enough to consider them abolished. To give the Supreme Court the power to determine
the extent or nature of the changes as to their structure, distribution and jurisdiction, before
the clear intent to abolish them, or to declare them so abolished, is given effect, would be to
allow undue interference in the function of legislation. This would be contrary to the primary
duty of courts precisely to give effect to the legislative intent as expressed in the law or as
may be discovered therefrom.
6. ID.; ID.; ID.; ID.; JUDICIAL INQUIRY INTO THE ABOLITION OF COURTS NOT PROPER.
The abolition of the courts is a matter of legislative intent into which no judicial inquiry is
proper, except perhaps if that intent is so palpably tainted with constitutional repugnancy,
which is not so in the instant case. We have, therefore, no occasion to speak of removal of
judges when the reorganization of the judiciary would result in the abolition of the courts other
than the Supreme Court and the Court of Tax Appeals. Hence, the provision of the
Constitution giving to the Supreme Court power to dismiss a judge by a vote of eight justices
does not come into the vortex of the instant controversy. Its possible violation by the assalied
statute cannot happen, and may, therefore, not constitute an argument against the
constitutionality of the law.chanroblesvirtuallawlibrary:red
7. ID.; ID.; ID.; ARBITRARINESS IN THE IMPLEMENTATION OF THE LAW SUBJECT TO
JUDICIAL REDRESS. Only in the implementation of the law may there possibly be a taint of
constitutional repugnancy, as when a judge of acknowledged honesty, industry and
competence is separated, because an act of arbitrariness would thereby be committed, but the
abolition of the courts as declared by the law it not by itself or per se unconstitutional.
Consequently, the law, the result of serious and concerned study by a highly competent
committee, deserves to be given a chance to prove its worth in the way of improving the
judiciary. If in its implementation any one, if at all, feels aggrieved, he can always seek
judicial redress, if he can make out a case of violation of his right of security of tenure with
uncontrovestible clarity, as when the separation is very arbitrary in the peculiar circumstances
of his case, for an act of arbitrariness, under any constitution, is unpardonable.
8. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; DISMISSAL OF A PREMATURE PETITION.
The petition should be dismissed for being premature. It asks this Court to exercise its power
of judicial inquiry, the power to declare a law unconstitutional when it conflicts with the
fundamental law (People v. Vera, 63 Phil. 36). This power has well-defmed limits, for it can be
exercised only when the following requisites are present, to wit: (1) There must be an actual
case or controversy; (2) The question of constitutionality must be raised by the proper party;
(3) He should do so at the earliest opportunity; and (4) The determination of the
constitutionality of the statute must be necessary to a final determination of the case. The
petition does not present as actual controversy nor was it filed by the proper parties.
9. ID.; ID.; ID.; ID.; PETITIONERS WITHOUT LEGAL PERSONALITY TO QUESTION THE
CONSTITUTIONALITY OF THE JUDICIARY REORGANIZATION LAW. The main ground for
which the constitutionality of the Judiciary Reorganization Act of 1980 is assailed is that it is
violative of the security of tenure of justices and judges. The only persons who could raise the
question of constitutionality of the law, therefore, are the actual incumbents of the courts who
would be separated from the service upon the abolition of the courts affected by the law, on
the theory as advanced by petitioners that their judicial security of tenure would be violated.

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Olongapo City Judge de la Llana, the only judge among the petitioners, has not been
separated from the service. Nor is his separation already a certainty, for he may be appointed
to the court equivalent to his present court, or even promoted to a higher court. Only when it
has become certain that his tenure has been terminated will an actual controversy arise on his
allegation of a fact that has become actual, not merely probable or hypothetical. The present
petition may neither be allowed as a taxpayer suit. A taxpayer may bring an action to raise the
question of constitutionality of a statute only when no one else can more appropriately bring
the suit to defend a right exclusively belonging to him, and, therefore, would localize the
actual injury to his person, and to no other. For a "proper" party to invoke the power of
judicial inquiry, as one of the requisites in the exercise of such power, does not mean one
having no better right, one more personalized, than what he has as a member of the public in
general. With the incumbent judges undoubtedly being the ones under petitioners theory,
who would suffer direct and actual injury, they should exclude mere taxpayers who cannot be
said to suffer as "direct" and "actual" an injury as the judges and justices by the enforcement
of the assailed statute, from the right to bring the suit.
10. ID.; ID.; ID.; JUDICIARY REORGANIZATION LAW OF 1980 NOT UNCONSTITUTIONAL. It
would not be proper to declare the law void at this stage, before it has even been given a
chance to prove its worth, as the legislature itself and all those who helped by their exhaustive
and scholarly study, felt it to be an urgent necessity, and before any of the proper parties who
could assail its constitutionality would know for a fact, certain and actual, not merely probable
or hypothetical, that they have a right violated by what they could possibly contend to be
unconstitutional enforcement of the law, not by a law that is unconstitutional unto itself. The
writer is for giving the law a chance to be put into application so as not to douse great popular
expectations for the count to regain their highest level of efficiency and reputation for probity.
Inevitably, this is to be so since only when the law is fully implemented will all the courts
affected be declared abolished, undoubtedly to avoid an interregnum when the country is
without any court, except the Supreme Court, the Court of Tax Appeals and the Sandigan.
Only then will it be known whether an actual controversy would arise because any of the
incumbents have been left out in the restructured judiciary.chanrobles virtual lawlibrary
11. ID.; ID.; ID.; ID.; INTERPRETATION THAT UPHOLDS THE CONSTITUTIONALITY OF THE
LAW SHOULD PREVAIL. A law should, by all reasonable intendment and feasible means, be
saved from the doom of unconstitutionality, the rule corollary thereto being that if a law is
susceptible to two interpretations, one of which would make it constitutional, that
interpretation should be adopted that will not kill the law.
12. ID.; ID.; ID.; ID.; ADEQUATE REMEDY IN LAW AVAILABLE TO THOSE WHO MAY BE
INJURED THEREBY. While in the implementation of the law, constitutional repugnancy may
not entirely be ruled out, a categorical ruling hereon not being necessary or desirable at the
moment, the law itself is definitely not unconstitutional. Any of the incumbent judges who feel
injured after the law shall have been implemented has adequate remedy in law, with full relief
as would be proper. But surely, the benefits envisioned by the law in the discharge of one of
the basic duties of government to the people the administration of justice should not be
sacrificed, as it would be, if the law is, as sought in the present petition, declared void right
now, on the claim of a few of being allegedly denied a right, at best of doubtful character, for
the claim would seem to rest on an unsupportable theory that they have a vested right to a
public office.

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13. ID.; ID.; ID.; ID.; BATAS PAMBANSA BLG. 129 NOT SELF-EXECUTORY; REORGANIZATION
LAW DISTINGUISHED FROM REPUBLIC ACT 1186. The law in question is not self-executing
in the sense that upon its effectivity, certain judges and justices cease to be so by direct
action of the law. This is what distinguishes the Act in question from R.A. No. ll86 involved in
the case of Ocampo v. Secretary of Justice, 50 O.G. 147 which by its direct action, no act of
implementation being necessary, all the judges whose positions were abolished, automatically
ceased as such. The Act in question, therefore, is not as exposed to the same vulnerability to
constitutional attack as R.A. No. 1186 was. Yet by the operation of the Constitution with its
wise provision on how a law may be declared unconstitutional, R.A. No. 1186 stood the test
for it to be enforced to the fullness of its intent, which was, as in the law under consideration,
identified with public interest and general welfare, through a more efficient and effective
judicial system as the Judiciary Reorgarnization Act of 1980 seeks to establish.
14. ID.; ID.; ID.; ID.; ACHIEVEMENT OF THE PRIMARY PURPOSE OF IMPROVING THE
JUDICIARY TIlE PREVAILING FACTOR IN UPHOLDING THE CONSTITUTIONALITY OF THE LAW.
The question before this Court is a simple matter of choosing between protecting some
judges from possible separation, as the implementation of the law to achieve its primary
purpose of improving the judiciary may have to result in, or serving the interest of the entire
society through an honest, efficient and effective judiciary. For, it is unthinkable that what is
for the good of the people as a whole could have been meant by the Constitution to be
sacrificed for the sake of only a few. The greatest good for the greatest number is an
unwritten rule, more firm and enduring than any of the postulates spread in our written
Constitution.
MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW OF 1980;
LEGISLATIVE POWER TO ABOLISH COURTS CO-EXTENSIVE WITH THE POWER TO CREATE
THEM. It is a fundamental proposition that the legislative power to create courts ordinarily
includes the power to organize and to reorganize them, and that the power to abolish courts is
generally co-extensive with the power to create them. The power to abolish was not intended
to be qualified by the permanence of tenure. (Opinion of Chief Justice Ricardo Paras in
Ocampo v. Secretary of Justice, 51 O.G. 147 [1955], citing McCulley v. State, 53 SW 134
Halsey v. Gaines, 2 Lea 316). The right of Judges to hold office during good behavior until
they reach the age of 70 years, or become incapacitated to discharge the duties of their office,
does not deprive Congress of its power to abolish, organize or reorganize inferior courts.
(Brillo v. Enage, 94 Phil. 732, 735, citing Zandueta v. de la Costa, 66 Phil. 615; 42 Am. Jur.,
Pub. Officer, 904-5). Judges of those courts take office with that encumbrance and knowledge.
2. ID.; ID.; ID.; TENURE OF JUDGES AND TENURE OF COURTS DISTINGUISHED. Section 1,
Article X refers to the "Judiciary" as a fundamental department of Government, Section 7 of
the same Article refers to the tenure of office of "individual" Judges (inclusive of Justices of
inferior Courts); that is to say, tenure of office is a matter concerning the individual Judge.
This "individuality" character of Section 7 is supported by the clause that the Supreme Court
has the power to discipline individual judges of inferior courts.
3. ID.; ID.; LEGISLATIVE EXERCISE OF THE POWER TO REORGANIZE COURTS NOT
HAMPERED BY THE SECURITY OF TENURE GUARANTEE; JUDGES ARE ENTAILED TO THEIR
COURTS BUT COURTS ARE NOT ENTAILED TO THEIR JUDGES. A legislature is not bound to

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give security of tenure to courts. Courts can be abolished. In fact, the entire judicial system
can be changed. If that system can no longer admit of change, woe to the wheels of progress
and the imperatives of growth in the development of the Judiciary. To hold that tenure of
judges is superior to the legislative power to reorganize is to render impotent the exercise of
that power. Under Section 7, Article X, Judges are entailed to their count, from which they
cannot be separated before retirement age except as a disciplinary action for bad behavior.
Under Section 1, Courts are not entailed to their judges, because the power of the legislative
to establish inferior court presupposes the power to abolish those courts. If an inferior court is
abolished, the judge presiding that court will necessarily have to lose his position because the
abolished court is not entailed to him.
4. ID.; ID.; ID.; ID.; CONSTITUTIONAL GUARANTEE OF TENURE OF JUDGES APPLIES ONLY
AS THEIR COURTS EXIST. The constitutional guarantee of tenure of Judges applies only as
their Courts exist. As long as those Courts exist, the Judges cannot be ousted without just
cause; that is the client of the constitutional provision relative to security of tenure of Judges.
Upon declaration of the completion of the reorganization as provided for in the Reorganization
Act, the affected Courts "shall be deemed automatically abolished." There being no Courts,
there are no offices for which tenure of Judges may be claimed. By the abolition of those
offices, the rights to them are necessarily extinguished (Manalang v. Quitoriano, 94 Phil. 903
[(1954)].
5. ID.; ID.; ID.; BATAS PAMBANSA BLG. 129 AN ANSWER TO AN URGENT PUBLIC NEED;
GOOD FAITH IN THE ENACTMENT THEREOF PRESUMED. The challenged law was enacted by
the Batasang Pambansa in response to an urgent and pressing public need and not for the
purpose of affecting adversely the security of tenure of all Judges or legislating them out to
the detriment of judicial independence. It should not be said of the Batasang Pambansa that
its power of abolition of Courts has been used to disguise an unconstitutional and evil purpose
to defeat the security of tenure of Judges. The Judiciary Reorganization Act of 1981 sufficiently
complies with the bona fide rule in the abolition of public office. Besides, every presumption of
good faith in its actuations must be accorded a coordinate and co-equal branch of
government, supreme within the limits of its own sphere, until that presumption is clearly
overcome. There is no showing that the Reorganization Act was motivated for personal or
political reasons as to justify the interference by the Court (Garvey v. Lowell, 109 Mass. 47,
85 N.E. 182, 127 A.S.R. 468; State v. Eduards, 40 Mont. 287; 106 Pat. 695, 19 R.C.L. 236;
Llanto v. Dimaporo, 16 5CRA 599 [[1966]). Public interest and public good, as the legislative
body views it, must be balanced with tenure of Judges, which is an individual right. Reverting
to Section 1 and Section 7 of Article X, the former is the weightier, because the "Judiciary" is
of more importance to the welfare of the country than the tenure of office of an individual
Judge. If a Judge is removed without cause, there can be damage to the public welfare to
some extent, but maintenance of a Court that does not meet the requirement of progressive
Government, can cause incalculable prejudice to the people.
6. ID.; ID.; ID.; REORGANIZATION OF THE JUDICIAL SYSTEM DOES NOT CONFLICT WITH
THE SUPREME COURTS POWER TO DISCIPLINE JUDGES. Where the legislature has willed
that the Courts be abolished, the power to discipline cannot post an obstacle to the abolition.
The power to discipline can come into play only when there is removal from an existing judicial
office, but not when that office is abolished. The reorganization of the judicial system with the
abolition of certain courts is not an exercise of the power to discipline the Judges of the
abolished courts.chanrobles.com.ph : virtual law library

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7. ID.; ID.; ID.; ABOLITION OF COURTS NOT A DEPRIVATION OF DUE PROCESS OF LAW.
The abolition would be no deprivation either of due process of law. A public office cannot be
regarded as the "property" of the incumbent. A pubily office is not a contract (Segovia v. Noel,
47 Phil. 543 [[1925]). A public office is a public trust (Section 1, Article XIII, 1973
Constitution). It is a privilege in the gift of the State (Brown v. Russel, 166 Mast. 14, 43 NE
1005, 32 LRA 253 cited also in Taada & Carreon, Political Law of the Philippines, Vol. 2, p.
537). The officers are the servants of the people and not their rulers (22 R.C.L. 378-379, cited
in Martin, Administrative Law, Law on Public officers and Election Law, p. 112, 1970 ed.).
Besides, it bears stressing that there is no removal from office but abolition of the office itself.
8. ID.; ID.; ID.; BATAS PAMBANSA BLG. 129 ENACTED IN THE PURSUIT OF DEVELOPMENTAL
GOALS WITHIN THE JUDICIARY. The questioned statute is in keeping with major reforms in
other departments of government. "The thrust is on development." It is "the first major
reorganization after four generations." It does not provide for a piecemeal change, which could
be ineffective. It goes to the roots and does not just scratch the surface of our judicial system.
Its main objectives are an improved administration of justice, the "attainment of more
efficiency in the disposal of cases, a reallocation of jurisdiction, and a revision of procedures
which do not send to the proper meting out of justice." These aims are policy matters of
necessity in the pursuit of developmental goals within the judiciary.
9. ID.; ID.; ID.; INNOVATIVE FEATURES CONTAINED IN THE REORGANIZATION LAW.
There are innovative features in the Act that commend themselves: (a) the confusing and
illogical areas of concurrent jurisdiction between trial Courts have been entirely eliminated; (b)
Under Section 39, there is a uniform period for appeal of fifteen (15) days counted from the
notice of the final order, resolution, award, judgment, or decision appealed from; a record on
appeal is no longer required to take an appeal. The entire original record is now to be
transasitted; (c) Under Section 40, in deciding appealed cases, adoption by reference of
findings of fact and conclusions of law as set forth in the decision, order, or resolution of
decisions in appealed cases; (d) Section 42 provides for a monthly longevity pay equivalent to
5% of the monthly basic pay for Justices and Judges of the courts herein created for each five
years of continuous, efficient, and meritorious service rendered in the Judiciary, Provided that,
in no case shall the total salary of each Justice or Judge concerned, after this longevity pay is
added, exceed the salary of the Justice or Judge next in rank. Thus, Justices and Judges who
may not reach the top, where unfortunately there is not enough room for all, may have the
satisfaction of at least approximating the salary scale of those above him depending on his
length of service.
10. ID.; ID.; ID.; SAFEGUARDS TO BE UNDERTAKEN IN THE IMPLEMENTATION OF THE LAW.
While the law itself as written is constitutional, the manner in which it will be administered
should not be tainted with unconstitutionality (Myles Salt Co. v. Board of Commrs., 239 US
478, 60 L. Ed. 392, 36 Sct 204). To obviate the possibility of an unconstitutional exercise of
power the following safeguards are recommended and/or expected to be undertaken: (a) the
President can be expected to indicate a reasonable time frame for the completion of the
reorganization provided for in the Act and the issuance of the corresponding implementing
order; (b) appointments and their effectivity should be simultaneous with, or as close as
possible, to the declaration by the President of the completion of the reorganization under
Section 44 to avoid any detriment to the smooth and continuous functioning of the judicial
machinery; and (c) the services of those not separated should be deemed uninterrupted, as

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recommended by the Committee on Judicial Reorganization.

11. ID.; ID.; ID.; STAFFING PATTERN; NAMES OF JUDGES TO BE EXCLUDED THEREFROM;
EXECUTIVE CHOICE TO BE RESPECTED. Justice Herrera disagrees with the suggestion of
one of the amici curiae that the staffing pattern be made to include the names of Judges. The
staffing pattern for Judges it already clearly and explicitly provided in the law itself which
enumerates the various Judges and Justices in their hierarchical order. Furthermore, to include
she superior positions of Judges would depart from the traditional concept of a staffing
pattern, which refers more to personnel organization and corresponding salaries of inferior
employees. It is also constitutionally objectionable in that it would interfere with the
prerogative of appointment intrinsically executive in nature (Guevara v. Inocentes, 16 SCRA
379 [1966]; Government of the Philippines v. Springer, 50 Phil. 259 [1927]). The President
may not be deprived of, nor be limited in, the full use of his discretion in the appointment of
persons to any public office. Nothing should so trench upon executive choice as to be, in
effect, judicial designation.
12. ID.; ID.; ID.; NEW APPOINTMENTS TO STRENGTHEN THE JUDICIAL SYSTEM. Reliance
can be placed on the good faith of the President that all the deserving, upon considerations of
"efficiency, integrity, length of service and other relevant factors," shall be appointed to a
strengthened and revitalized judicial system in the interest of public service; that
appointments will not be unduly delayed, and that appointees will be evaluated thoroughly to
ensure quality and impartiality in the men and women who will keep vigil over our judicial
ramparts.chanroblesvirtuallawlibrary
ERICTA, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW; LEGISLATIVE
POWER TO CREATE COURTS INCLUDES THE POWER TO ABOLISH THE SAME. The
constitution grants to the Batasang Pambansa the power to create courts inferior to the
Supreme Court (Article X, Section 1). All existing inferior courts were created by law. No law is
irrepealable. The power to create an office includes the power to abolish the same. (Urgelio v.
Osmea, 9 SCRA 317; Maca v. Ochave, 20 SCRA 142)
2. ID.; ID.; ID.; ID.; REMOVAL FROM OFFICE AND ABOLITION OF OFFICE, DISTINGUISHED.
Security of tenure cannot be invoked when there is no removal of a public officer or
employee but an abolition of his office. (Manalang v. Quitoriano, 94 Phil. 903; Cruz v.
Primicias, 23 SCRA 998; Baldoz v. Office of the President, 78 SCRA 334, 362). A distinction
should be made between removal from office and abolition of an office. Removal implies that
the office subsists after ouster, while, in abolition, the office no longer exists thereby
terminating the right of the incumbent to exercise the rights and duties of the office.
(Canonigo v. Ramiro, 31 SCRA 278)
3. ID.; ID.; ID.; RESULTANT ABOLITION OF COURTS PASSES THE TEST OF GOOD FAITH.
The power of the legislative branch of the government to abolish courts inferior to the
Supreme Court has long been established. (Ocampo v. Secretary of Justice, 31 O.G. 147)
What is only needed is that the abolition passes the test of good faith. It need only be shown
that said abolition of the courts is merely incidental to a bona fide reorganization. (Urgelio v.
Osmea, 9 SCRA 317)

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4. ID.; ID.; ID.; PUBLIC WELFARE TO PREVAIL OVER THE INDIVIDUAL INTEREST OF JUDGES.
In the implementation of the law, some Judges and Justices may be adversely affected. But
in a conflict between public interest and the individual interest of some Judges and Justices,
the public weal must prevail. The welfare of the people is the supreme law.
5. ID.; ID.; ID.; APPOINTMENTS TO THE NEW COURTS, A PRESIDENTIAL PREROGATIVE.
The implementation of the law will entail appointments to the new courts. The power of
appointment is the exclusive prerogative of the President. The implementation of the law
should be left exclusively to the wisdom, patriotism and statesmanship of the President.
ABAD SANTOS, J., concurring and dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW OF 1980 (BATAS
PAMBANSA BLG. 129); LAW NOT UNCONSTITUTIONAL. I agree with the learned Chief
Justice of the Philippines that Batas Pambansa Blg. 129 is not unconstitutional.
2. ID.; ID.; ID.; ID.; PRIOR CONSULTATION WITH THE SUPREME COURT SHOULD NOT BE
REQUIRED OF THE PRESIDENT IN THE IMPLEMENTATION OF THE LAW. It has already been
ruled that the statute does not suffer from any constitutional infirmity because the abolition of
certain judicial offices was done in good faith. This being the case, I believe that the Executive
is entitled to exercise its constitutional power to fill the newly created judicial positions without
any obligation to consult with this Court and to accord its views the fullest consideration. To
require consultation will constitute an invasion of executive territory which can be resented
and even repelled. The implicit suggestion that there could be an unconstitutional
implementation of the questioned legislation is not congruent with the basic conclusion that it
is not unconstitutional.
PLANA, J., concurring and dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; JUDICIARY REORGANIZATION LAW; POWER TO CREATE COURTS
INCLUDES THE POWER TO ABOLISH OR REPLACE THEM; BATAS PAMBANSA BLG. 129
ENACTED IN GOOD FAITH. As the lawmaking body has the power to create inferior courts
and define, prescribe and apportion their jurisdiction, so it has the power to abolish or replace
them with other courts at long as the act is done in good faith and not for the purpose of
attaining an unconstitutional end. Good faith has thus become the crucial issue in the case at
bar.
2. ID.; ID.; ID.; PRESIDENT NOT OBLIGED TO CONSULT WITH THE SUPREME COURT IN THE
IMPLEMENTATION OF THE LAW. The President is under no obligation to consult with the
Supreme Court; and the Supreme Court as such is not called upon to give legal advice to the
President. Indeed, as the Supreme Court itself has said, it cannot give advisory opinions
(Bacolod-Murcia Planters Assoc., Inc. v. Bacolod-Murcia Milling Co., 30 SCRA 67; NWSA v.
Court of Industrial Relations, 90 SCRA 629) even to the President.
3. ID.; ID.; ID.; FIXING OF COMPENSATION AND ALLOWANCES FOR MEMBERS OF THE
JUDICIARY DOES NOT CONSTITUTE AN UNDUE DELEGATION UNTO THE PRESIDENT OF
LEGISLATIVE POWER; PRINCIPLE OF SEPARATION OF POWERS UNDER THE 1973
CONSTITUTION. Under the Old Constitution, when the abiding rule was separation of
legislative and executive powers, there was good reason to maintain the doctrine of non-

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delegation of legislative power. Otherwise, the principle of separation of governmental powers

could be negated via unbridled delegation of legislative power. The 1973 Constitution has
however radically changed the constitutional set-up. There is now a commingling or fusion of
executive and legislative powers in the hands of the same group of officials. Cabinet members
play a leading role in the legislative process, and members of the Batasan actively discharge
executive functions. The Prime Minister indeed must come from its ranks. Under the
circumstances, there is really not much sense in rigidly insisting on the principle of nondelegation of legislative power, at least vis-a-vis the Executive Department. In a very real
sense, the present Constitution has significantly eroded the hoary doctrine of non-delegation
of legislative power, although it has retained some provisions of the old Constitution which
were predicated on the principle of non-delegation, this time perhaps not so much to authorize
shifting of power and thereby correspondingly reduce the incidence of "undue" delegation of
legislative power, as to avert the abdication thereof.
TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW OF 1980 (BATAS
PAMBANSA BLG.129); RESULTANT ABOLITION OF COURTS; EXPRESS GUARANTY OF
SECURITY OF TENURE OVERRIDES THE IMPLIED AUTHORITY OF REMOVING JUDGES BY
LEGISLATION. The reasoning that the express guaranty of tenure protecting incumbent
judges during good behaviour unless removed from office after hearing and due process or
upon reaching the compulsory retirement age of seventy years must override the implied
authority of removing by legislation the judges has been further strengthened and placed
beyond doubt by the new provisions of the 1973 Constitution that transferred the
administrative supervision over all courts and their personnel from the Chief Executive through
the then Secretary of Justice to the Supreme Court (Art. X, Sec. 6, 1973 Constitution) and
vested in the Supreme Court exclusively the power to discipline judges of inferior courts, and,
by a vote of at least eight members, order their dismissal, which power was formerly lodged
by the Judiciary Act in the Chief Executive.chanroblesvirtuallawlibrary
2. ID.; ID.; ID.; ID.; ID.; 1973 CONSTITUTION RULES OUT OUSTER OF JUDGES BY
LEGISLATION BY VESTING IN THE SUPREME COURT THE POWER TO REMOVE AND
DISCIPLINE JUDGES. If the framers of the 1973 Constitution wished to dispel the strong
doubts against the removal of incumbent judges through legislative action by abolition of their
courts, then they would have so clearly provided for such form of removal in the 1973
Constitution, but on the contrary as already stated they ruled out such removal or ouster of
judges by legislative action by vesting exclusively in the Supreme Court the power of discipline
and removal of judges of all inferior courts.
3. ID.; ID.; ID.; REORGANIZATION ACT DOES NOT CHANGE THE BASIC STRUCTURE OF
EXISTING COURTS. The questioned Act effects certain changes and procedural reforms with
more specific delineation of jurisdiction but they do not change the basic structure of the
existing courts. The present Municipal Courts, Municipal Circuit Courts and City Courts are
restructured and redesignated as Municipal Trial Courts and Municipal Circuit Trial Courts and
Metropolitan Trial Courts in the challenged Act. The Courts of First Instance, Circuit Criminal
Courts, Juvenile & Domestic Relations Courts and Courts of Agrarian Relations are all
restructured and redesigned to be known by the common name of Regional Trial Courts with
provision for certain branches thereof "to handle exclusively criminal cases, juvenile and
domestic relations cases, agrarian cases, urban land reform cases and/or such other special

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cases as the Supreme Court may determine in the interest of a speedy and efficient
administration of justice" (Sec. 23, B.P. Blg. 129) and the Court of Appeals is restructured and
redesignated as the Intermediate Appellate Court with an increase in the number of Appellate
Justices from the present 43 to 30 but with a reduction of the number of divisions from 13
(composed of 3 Justices each) to 10 (composed of 3 members each) such that it is feared that
there is created a bottleneck at the appellate level in the important task discharged by such
appellate courts as reviewers of facts.
4. ID.; ID.; ID.; ID.; "NEWCOURTS" SUBSTANTIALLY THE "OLD COURTS" WITH ONLY A
CHANGE OF NAME. Justice Teehankee views that the candid admission by the Chief Justice
in his opinion for the Court "that he entertained doubts as to whether the intermediate court
of appeals provided for is a new tribunal" is equally applicable to all the other mentioned
courts provided for in the challenged Act as "new courts." And the best proof of this is the
plain and simple transitory provision in Section 44 thereof that upon the Presidents
declaration of completion of the reorganization (whereby the "old courts" shall "be deemed
automatically abolished and the incumbents thereof shall cease to hold office")," (T)he cases
pending in the old Courts shall be transferred to the appropriate Courts constituted pursuant
to this Act, together with the pertinent functions, records, equipment, property and the
necessary personnel," together with the "applicable appropriations." This could not have been
possible without a specification and enumeration of what specific cases of the "old courts"
would be transferred to the particular "new courts," had these "new courts" not been
manifestly and substantially the "old courts" with a change of name or as described by
Justice Barredo to have been his first view, now discarded, in his separate opinion; "just a
renaming, and not a substantial and actual modification or alteration of the present judicial
structure or system" or "a rearrangement or remodelling of the old structure."cralaw
virtua1aw library
5. ID.; ID.; ID.; ABOLITION OF COURTS AND CONSEQUENT OUSTER OF INCUMBENT JUDGES
FROM OFFICE; GUARANTY OF TENURE OF JUDGES ESSENTIAL FOR A FREE AND
INDEPENDENT JUDICIARY; REORGANIZATION SHOULD ALLOW THE INCUMBENTS TO REMAIN
IN OFFICE UNLESS REMOVED FOR CAUSE. The good faith in the enactment of the
challenged Act must need be granted. What must be reconciled is the legislative power to
abolish courts as implied from the power to establish them with the express constitutional
guaranty of tenure of the judges which is essential for a free and independent judiciary.
Adherents of the Rule of Law are agreed that indispensable for the maintenance of the Rule of
Law is free and independent judiciary, sworn to protect and enforce it without fear or favor
"free, not only from graft, corruption, ineptness and incompetence but even from the tentacles
of interference and insiduous influence of the political powers that be," to quote again from
Justice Barredos separate opinion. Hence, my adherence to the 7-member majority opinion of
former Chief Justice Bengzon in the case of Ocampo v. Secretary of Justice, G.R. No. L-1790,
Jan. 18, 1933, as restated by the Philippine Association of Law Professors headed by former
Chief Justice Roberto Concepcion that "any reorganization should at least allow the
incumbents of the existing courts to remain in office (the appropriate counterpart "new
courts) unless they are removed for cause."cralaw virtua1aw library
6. ID.; ID.; ID.; ID.; ID.; JUDICIAL INDEPENDENCE EXTENDS TO THE ENTIRE COURT
SYSTEM; VIEWS OF AMICI CURIAE THEREON. Former U.P. Law Dean Irene Cortes in her
memorandum as amicus curiae stated "for the judiciary whose independence is not only
eroded but is in grave danger of being completely destroyed, judicial independence is not a

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guarantee intended for the Supreme Court alone, it extends to the entire court system and is
even more vital to the courts at the lowest levels because there are more of them and they
operate closest to the people," and "particularly under the present form of modified
parliamentary government with legislative and executive functions overlapping and in certain
areas merging, the judiciary is left to perform the checking function in the performance of
which its independence assumes an even more vital importance." The extensive memoranda
filed by Dean Cortes and other amici curiae such as former Senator Jose W. Diokno who
strongly urges the Court to strike down the Act "to prevent further destruction of judicial
independence," former Senator Lorenzo Sumulong, President of the Philippine Constitution
Association who advocates for the Courts adoption of the Bengzon majority opinion in the
Ocampo case so as to abide by "the elementary rule in the interpretation of constitutions that
effect should be given to all parts of the Constitution" and that the judges security of tenure
guaranty should not be "rendered meaningless and inoperative" former Solicitor General
Arturo A. Alafriz, president of the Philippine Lawyers Association who submits that the total
abolition of all courts below the Supreme Court (except the Sandiganbayan and the Court of
Tax Appeals) and the removal of the incumbent Justices and Judges violates the independence
of the judiciary, their security of tenure and right to due process guaranteed them by the
Constitution" and Atty. Raul M. Gonzales, president of the National Bar Association of the
Philippines who invokes the Declaration of Delhi at the ICJ Conference in 1939, that "The
principles of unremovability of the Judiciary and their Security of Tenure until death or until a
retiring age fluted by statute is reached, is an important safeguard of the Rule of Law" have
greatly helped in fortifying my views.
7. ID.; ID.; ID.; ID.; ID.; TRANSITORY PROVISIONS OF THE 1973 CONSTITUTION RENDERED
NUGATORY JUDGES SECURITY OF TENURE; RESTORATION OF GUARANTY; AN URGENT NEED
FOR A FREE AND INDEPENDENT JUDICIARY. The judges security of tenure was rendered
nugatory by the Transitory Provisions of the 1973 Constitution which granted the incumbent
President the unlimited power to remove and replace all judges and officials (as against the
limited one-year period for the exercise of such power granted President Quezon in the 1935
Constitution upon establishment of the Philippine Commonwealth). Upon the declaration of
martial law in September, 1972, justices and judges of all courts, except the Supreme Court,
had been required to hand in their resignation. There is listed a total of 33 judges who were
replaced or whose resignations were accepted by the President during the period from
September, 1972 to April, 1976. The power to replace even the judges appointed after the
effectivity on January 17, 1973 Constitution is yet invoked on behalf of the President in the
pending case of Tapucar v. Famador, G.R. No. 53467 filed on March 27, 1980 notwithstanding
the held view that such post-1973 Constitution appointed judges are not subject to the
Replacement Clause of the cited Transitory Provision, . . . . And now comes this total abolition
of 1,663 judicial positions (and thousands of personnel positions) unprecedented in its sweep
and scope. The urgent need is to strengthen the judiciary with the restoration of the security
of tenure of judges, which is essential for a free and independent judiciary as mandated by the
Constitution, not to make more enfeebled an already feeble judiciary, possessed neither of the
power of the sword nor the purse, as decried by former Chief Justice Bengzon in his Ocampo
majority opinion.chanroblesvirtuallawlibrary
8. ID.; ID.; ID.; ID.; ID.; JUDICIAL INDEPENDENCE TO BE PRESERVED ESPECIALLY IN VIEW
OF THE EXISTING STRONG TIES BETWEEN THE EXECUTIVE AND LEGISLATIVE DEPARTMENTS.
In Fortun v. Labang, 104 SCRA 607 (May 27, 1981), it was stressed that with the provision
transferring to the Supreme Court administrative supervision.over the Judiciary, there is a

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greater need "to preserve unimpaired the independence of the judiciary, especially so at
present, where to all intents and purposes, there is a fusion between the executive and the
legislative branches," with the further observation that "many are the ways by which such
independence could be eroded."cralaw virtua1aw library
9. ID.; ID.; ID.; ID.; ID.; MOVE TO RID THE JUDICIARY OF INCOMPETENT AND CORRUPT
JUDGES; DUE PROCESS MUST BE OBSERVED IN THE IMPLEMENTATION OF THE PURGE.
Former Senator Diokno in his memorandum anticipates the argument that "great ills demand
drastic cures" thus; "Drastic, yes but not unfair nor unconstitutional. One does not improve
courts by abolishing them, any more than a doctor cures a patient by killing him. The ills the
judiciary suffers from were caused by impairing its independence; they will not be cured by
totally destroying that independence. To adopt such a course could only breed more perversity
in the administration of justice, just as the abuses of martial rule have bred more subversion."
Finally, as stated by the 1975 Integrated Bar of the Philippines 2nd House of Delegates, "It
would, indeed, be most ironical if Judges who are called upon to give due process cannot
count it on themselves. Observance of procedural due process in the separation of misfits from
the Judiciary is the right way to attain a laudible objective."cralaw virtua1aw library
10. ID.; ID.; ID.; ID.; ID.; ID.; ID.; JUDGES TO BE REMOVED ONLY AFTER A FAIR HEARING.
As stressed by the Chief Justice in the Fortun case, judges are entitled to the cardinal
principles of fairness and due process and the opportunity to be heard and defend themselves
against the accusations made against them and not to be subjected to harassment and
humiliation, and the Court will repudiate the "oppressive exercise of legal authority." More so,
are judges entitled to such due process when what is at stake is their constitutionally
guaranteed security of tenure and non-impairment of the independence of the judiciary and
the proper exercise of the constitutional power exclusively vested in the Supreme Court to
discipline and remove judges after fair hearing.
11. .ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; SUPREME COURT TO EXERCISE ITS POWER OF
DISCIPLINE AND DISMISSAL OF ALL JUDGES OF INFERIOR COURTS. Judges of inferior
courts should not be summarily removed and branded for life in such reorganization on the
basis of confidential adverse reports as to their performance, competence or integrity, save
those who may voluntarily resign from office upon being confronted with such reports against
them. The trouble with such ex-parte reports, without due process or hearing, has been
proven from our past experience where a number of honest and competent judges were
summarily removed while others who were generally believed to be basket cases have
remained in the service. The power of discipline and dismissal of judges of all inferior courts,
from the Court of Appeals down, has been vested by the 1973 Constitution in the Supreme
Court, and if the judiciary is to be strengthened, it should be left to clean its own house upon
complaint and with the cooperation of the aggrieved parties and after due process and
hearing.
12. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; INCUMBENT JUDGES TO BE RETAINED IN THE "NEW
COURTS." The constitutional confrontation and conflict may well be avoided by holding that
since the changes and provisions of the challenged Act do not substantially change the nature
and functions of the "new courts" therein provided as compared to the "abolished old court"
but provide for procedural changes fixed delineation of jurisdiction and increases in the
number of courts for a more effective and efficient disposition of court cases, the incumbent

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judges guaranteed security of tenure require that they be retained in the corresponding "new
courts."
DECISION
FERNANDO, C.J.:
This Court, pursuant to its grave responsibility of passing upon the validity of any executive or
legislative act in an appropriate case, has to resolve the crucial issue of the constitutionality of
Batas Pambansa Blg. 129, entitled "An Act Reorganizing the Judiciary, Appropriating Funds
Therefor and for Other Purposes." The task of judicial review, aptly characterized as exacting
and delicate, is never more so than when a conceded legislative power, that of judicial
reorganization, 1 may possibly collide with the time-honored principle of the independence of
the judiciary 2 as protected and safeguarded by this constitutional provision: "The Members of
the Supreme Court and judges of inferior courts shall hold office during good behavior until
they reach the age of seventy years or become incapacitated to discharge the duties of their
office. The Supreme Court shall have the power to discipline judges of inferior courts and, by a
vote of at least eight Members, order their dismissal." 3 For the assailed legislation mandates
that Justices and judges of inferior courts from the Court of Appeals to municipal circuit courts,
except the occupants of the Sandiganbayan and the Court of Tax Appeals, unless appointed to
the inferior courts established by such Act, would be considered separated from the judiciary.
It is the termination of their incumbency that for petitioners justifies a suit of this character, it
being alleged that thereby the security of tenure provision of the Constitution has been
ignored and disregarded.chanrobles virtual lawlibrary
That is the fundamental issue raised in this proceeding, erroneously entitled Petition for
Declaratory Relief and/or for Prohibition 4 considered by this Court as an action for prohibition,
seeking to enjoin respondent Minister of the Budget, respondent Chairman of the Commission
on Audit, and respondent Minister of Justice from taking any action implementing Batas
Pambansa Blg. 129. Petitioners 5 sought to bolster their claim by imputing lack of good faith in
its enactment and characterizing as an undue delegation of legislative power to the President
his authority to fix the compensation and allowances of the Justices and judges thereafter
appointed and the determination of the date when the reorganization shall be deemed
completed. In the very comprehensive and scholarly Answer of Solicitor General Estelito P.
Mendoza, 6 it was pointed out that there is no valid justification for the attack on the
constitutionality of this statute, it being a legitimate exercise of the power vested in the
Batasang Pambansa to reorganize the judiciary, the allegations of absence of good faith as
well as the attack on the Independence of the judiciary being unwarranted and devoid of any
support in law. A Supplemental Answer was likewise filed on October 8, 1981, followed by a
Reply of petitioners on October 13. After the hearing in the morning and afternoon of October
15, in which not only petitioners and respondents were heard through counsel but also the
amici curiae, 7 and thereafter submission of the minutes of the proceeding on the debate on
Batas Pambansa Blg. 129, this petition was deemed submitted for decision.
The importance of the crucial question raised called for intensive and rigorous study of all the
legal aspects of the case. After such exhaustive deliberation in several sessions, the exchange

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of views being supplemented by memoranda from the members of the Court, it is our opinion
and so hold that Batas Pambansa Blg. 129 is not unconstitutional.
1. The argument as to the lack of standing of petitioners is easily resolved. As far as Judge de
la Llana is concerned, he certainly falls within the principle set forth in Justice Laurels opinion
in People v. Vera. 8 Thus: "The unchallenged rule is that the person who impugns 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 of its enforcement." 9 The other petitioners
as members of the bar and officers of the court cannot be considered as devoid of "any
personal and substantial interest" on the matter. There is relevance to this excerpt from a
separate opinion in Aquino, Jr. v. Commission on Elections: 10 "Then there is the attack on
the standing of petitioners, as vindicating at most what they consider a public right and not
protecting their rights as individuals. This is to conjure the specter of the public right dogma
as an inhibition to parties intent on keeping public officials staying on the path of
constitutionalism. As was so well put by Jaffe: The protection of private rights is an essential
constituent of public interest and, conversely, without a well-ordered state there could be no
enforcement of private rights. Private and public interests are, both in a substantive and
procedural sense, aspects of the totality of the legal order. Moreover, petitioners have
convincingly shown that in their capacity as taxpayers, their standing to sue has been amply
demonstrated. There would be a retreat from the liberal approach followed in Pascual v.
Secretary of Public Works, foreshadowed by the very decision of People v. Vera where the
doctrine was first fully discussed, if we act differently now. I do not think we are prepared to
take that step. Respondents, however, would hark back to the American Supreme Court
doctrine in Mellon v. Frothingham, with their claim that what petitioners possess is an interest
which is shared in common by other people and is comparatively so minute and indeterminate
as to afford any basis and assurance that the judicial process can act on it. That is to speak in
the language of a bygone era, even in the United States. For as Chief Justice Warren clearly
pointed out in the later case of Flast v. Cohen, the barrier thus set up if not breached has
definitely been lowered." 11
2. The imputation of arbitrariness to the legislative body in the enactment of Batas Pambansa
Blg. 129 to demonstrate lack of good faith does manifest violence to the facts. Petitioners
should have exercised greater care in informing themselves as to its antecedents. They have
laid themselves open to the accusation of reckless disregard for the truth. On August 7, 1980,
a Presidential Committee on Judicial Reorganization was organized. 12 This Executive Order
was later amended by Executive Order No. 619-A, dated September 5 of that year. It clearly
specified the task assigned to it: "1. The Committee shall formulate plans on the
reorganization of the Judiciary which shall be submitted within seventy (70) days from August
7, 1980 to provide the President sufficient options for the reorganization of the entire Judiciary
which shall embrace all lower courts, including the Court of Appeals, the Courts of First
Instance, the City and Municipal Courts, and all Special Courts, but excluding the
Sandiganbayan." 13 On October 17, 1980, a Report was submitted by such Committee on
Judicial Reorganization. It began with this paragraph: "The Committee on Judicial
Reorganization has the honor to submit the following Report. It expresses at the outset its
appreciation for the opportunity accorded it to study ways and means for what today is a basic
and urgent need, nothing less than the restructuring of the judicial system. There are
problems, both grave and pressing, that call for remedial measures. The felt necessities of the
time, to borrow a phrase from Holmes, admit of no delay, for if no step be taken and at the
earliest opportunity, it is not too much to say that the peoples faith in the administration of

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justice could be shaken. It is imperative that there be a greater efficiency in the disposition of
cases and that litigants, especially those of modest means much more so, the poorest and
the humblest can vindicate their rights in an expeditious and inexpensive manner. The
rectitude and the fairness in the way the courts operate must be manifest to all members of
the community and particularly to those whose interests are affected by the exercise of their
functions. It is to that task that the Committee addresses itself and hopes that the plans
submitted could be a starting point for an institutional reform in the Philippine judiciary. The
experience of the Supreme Court, which since 1973 has been empowered to supervise inferior
courts, from the Court of Appeals to the municipal courts, has proven that reliance on
improved court management as well as training of judges for more efficient administration
does not suffice. Hence, to repeat, there is need for a major reform in the judicial system. It is
worth noting that it will be the first of its kind since the Judiciary Act became effective on June
16, 1901." 14 It went on to say: "It does not admit of doubt that the last two decades of this
century are likely to be attended with problems of even greater complexity and delicacy. New
social interests are pressing for recognition in the courts. Groups long inarticulate, primarily
those economically underprivileged, have found legal spokesmen and are asserting grievances
previously ignored. Fortunately, the judiciary has not proved inattentive. Its task has thus
become even more formidable. For so much grist is added to the mills of justice. Moreover,
they are likely to be quite novel. The need for an innovative approach is thus apparent. The
national leadership, as is well-known, has been constantly on the search for solutions that will
prove to be both acceptable and satisfactory. Only thus may there be continued national
progress." 15 After which comes: "To be less abstract, the thrust is on development. That has
been repeatedly stressed and rightly so. All efforts are geared to its realization." Nor, unlike
in the past, was it to be "considered as simply the movement towards economic progress and
growth measured in terms of sustained increases in per capita income and Gross National
Product (GNP)." 16 For the New Society, its implication goes further than economic advance,
extending to "the sharing, or more appropriately, the democratization of social and economic
opportunities, the substantiation of the true meaning of social justice." 17 This process of
modernization and change compels the government to extend its field of activity and its scope
of operations. The efforts towards reducing the gap between the wealthy and the poor
elements in the nation call for more regulatory legislation. That way the social justice and
protection to labor mandates of the Constitution could be effectively implemented" 18 There is
likelihood then "that some measures deemed inimical by interests adversely affected would be
challenged in court on grounds of validity. Even if the question does not go that far, suits may
be filed concerning their interpretation and application. . . . There could be pleas for injunction
or restraining orders. Lack of success of such moves would not, even so, result in their prompt
final disposition. Thus delay in the execution of the policies embodied in law could thus be
reasonably expected. That is not conducive to progress in development." 19 For, as mentioned
in such Report, equally of vital concern is the problem of clogged dockets, which "as is well
known, is one of the utmost gravity. Notwithstanding the most determined efforts exerted by
the Supreme Court, through the leadership of both retired Chief Justice Querube Makalintal
and the late Chief Justice Fred Ruiz Castro, from the time supervision of the courts was vested
in it under the 1973 Constitution, the trend towards more and more cases has continued." 20
It is understandable why. With the accelerated economic development, the growth of
population, the increasing urbanization, and other similar factors, the judiciary is called upon
much oftener to resolve controversies. Thus confronted with what appears to be a crisis
situation that calls for a remedy, the Batasang Pambansa had no choice. It had to act, before
the ailment became even worse. Time was of the essence, and yet it did not hesitate to be
duly mindful, as it ought to be, of the extent of its coverage before enacting Batas Pambansa

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Blg. 129.
3. There is no denying, therefore, the need for "institutional reforms," characterized in the
Report as "both pressing and urgent." 21 It is worth noting, likewise, as therein pointed out,
that a major reorganization of such scope, if it were to take place, would be the most
thorough after four generations. 22 The reference was to the basic Judiciary Act enacted in
June of 1901, 23 amended in a significant way, only twice previous to the Commonwealth.
There was, of course, the creation of the Court of Appeals in 1935, originally composed "of a
Presiding Judge and ten appellate Judges, who shall be appointed by the President of the
Philippines, with the consent of the Commission on Appointments of the National Assembly."
24 It could "sit en banc, but it may sit in two divisions, one of six and another of five Judges,
to transact business, and the two divisions may sit at the same time." 25 Two years after the
establishment of independence of the Republic of the Philippines, the Judiciary Act of 1948 26
was passed. It continued the existing system of regular inferior courts, namely, the Court of
Appeals, Courts of First Instance, 27 the Municipal Courts, at present the City Courts, and the
Justice of the Peace Courts, now the Municipal Circuit Courts and Municipal Courts. The
membership of the Court of Appeals has been continuously increased. 28 Under a 1978
Presidential Decree, there would be forty-five members, a Presiding Justice and forty-four
Associate Justices, with fifteen divisions. 29 Special courts were likewise created. The first was
the Court of Tax Appeals in 1954, 30 next came the Court of Agrarian Relations in 1955, 31
and then in the same year a Court of the Juvenile and Domestic Relations for Manila in 1955,
32 subsequently followed by the creation of two other such courts for Iloilo and Quezon City in
1966. 33 In 1967, Circuit Criminal Courts were established, with the Judges having the same
qualifications, rank, compensation, and privileges as judges of Courts of First Instance. 34
4. After the submission of such Report, Cabinet Bill No. 42, which later became the basis of
Batas Pambansa Blg. 129, was introduced. After setting forth the background as above
narrated, its Explanatory Note continues: "Pursuant to the Presidents instructions, this
proposed legislation has been drafted in accordance with the guidelines of that report with
particular attention to certain objectives of the reorganization, to wit, the attainment of more
efficiency in disposal of cases, a reallocation of jurisdiction, and a revision of procedures which
do not tend to the proper meting out of justice. In consultation with, and upon a consensus of,
the governmental and parliamentary leadership, however, it was felt that some options set
forth in the Report be not availed of. Instead of the proposal to confine the jurisdiction of the
intermediate appellate court merely to appellate adjudication, the preference has been opted
to increase rather than diminish its jurisdiction in order to enable it to effectively assist the
Supreme Court. This preference has been translated into one of the innovations in the
proposed Bill." 35 In accordance with the parliamentary procedure, the Bill was sponsored by
the Chairman of the Committee on Justice, Human Rights and Good Government to which it
was referred. Thereafter, Committee Report No. 225 was submitted by such Committee to the
Batasang Pambansa recommending the approval with some amendments. In the sponsorship
speech of Minister Ricardo C. Puno, there was reference to the Presidential Committee on
Judicial Reorganization. Thus: "On October 17, 1980, the Presidential Committee on Judicial
Reorganization submitted its report to the President which contained the Proposed Guidelines
for Judicial Reorganization. Cabinet Bill No. 42 was drafted substantially in accordance with
the options presented by these guidelines. Some options set forth in the aforesaid report were
not availed of upon consultation with and upon consensus of the government and
parliamentary leadership. Moreover, some amendments to the bill were adopted by the
Committee on Justice, Human Rights and Good Government, to which the bill was referred,

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following the public hearings on the bill held in December of 1980. The hearings consisted of
dialogues with the distinguished members of the bench and the bar who had submitted written
proposals, suggestions, and position papers on the bill upon the invitation of the Committee
on Justice, Human Rights and Good Government." 36 The sponsor stressed that the
enactment of such Cabinet Bill would result in the attainment "of more efficiency in the
disposal of cases [and] the improvement in the quality of justice dispensed by the courts"
expected to follow from the dockets being less clogged, with the structural changes introduced
in the bill, together with the reallocation of jurisdiction and the revision of the rules of
procedure, [being] designated to suit the court system to the exigencies of the present day
Philippine society, and hopefully, of the foreseeable future." 37 It may be observed that the
volume containing the minutes of the proceedings of the Batasang Pambansa show that 590
pages were devoted to its discussion. It is quite obvious that it took considerable time and
effort as well as exhaustive study before the act was signed by the President on August 14,
1981. With such a background, it becomes quite manifest how lacking in factual basis is the
allegation that its enactment is tainted by the vice of arbitrariness. What appears undoubted
and undeniable is the good faith that characterized its enactment from its inception to the
affixing of the Presidential signature.
5. Nothing is better settled in our law than that the abolition of an office within the
competence of a legitimate body if done in good faith suffers from no infirmity. The ponencia
of Justice J.B.L. Reyes in Cruz v. Primicias, Jr. 38 reiterated such a doctrine: "We find this
point urged by respondents, to be without merit. No removal or separation of petitioners from
the service is here involved, but the validity of the abolition of their offices. This is a legal
issue that is for the Courts to decide. It is well-known rule also that valid abolition of offices is
neither removal nor separation of the incumbents. . . . And, of course, if the abolition is void,
the incumbent is deemed never to have ceased to hold office. The preliminary question laid at
rest, we pass to the merits of the case. As well-settled as the rule that the abolition of an
office does not amount to an illegal removal of its incumbent is the principle that, in order to
be valid, the abolition must be made in good faith." 39 The above excerpt was quoted with
approval in Bendanillo, Sr. v. Provincial Governor, 40 two earlier cases enunciating a similar
doctrine having preceded it. 41 As with the offices in the other branches of the government,
so it is with the judiciary. The test remains whether the abolition is in good faith. As that
element is conspicuously present in the enactment of Batas Pambansa Blg. 129, then the lack
of merit of this petition becomes even more apparent. The concurring opinion of Justice Laurel
in Zandueta v. De la Costa 42 cannot be any clearer. In this quo warranto proceeding,
petitioner claimed that he, and not respondent, was entitled to the office of judge of the Fifth
Branch of the Court of First Instance of Manila. The Judicial Reorganization Act of 1936, 43 a
year after the inauguration of the Commonwealth, amended the Administrative Code to
organize courts of original jurisdiction likewise called, as was the case before, Courts of First
Instance. Prior to such statute, petitioner was the incumbent of one such court. Thereafter, he
received an ad interim appointment, this time to the Fourth Judicial District, under the new
legislation. Unfortunately for him, the Commission on Appointments of the then National
Assembly disapproved the same, with respondent being appointed in his place. He contested
the validity of the Act insofar as it resulted in his being forced to vacate his position. This
Court did not rule squarely on the matter. His petition was dismissed on the ground of
estoppel. Nonetheless, the separate concurrence in the result of Justice Laurel, to repeat,
reaffirms in no uncertain terms the standard of good faith as the test of the validity of an act
abolishing an inferior court, and this too with due recognition of the security of tenure
guarantee. Thus: "I am of the opinion that Commonwealth Act No. 145 in so far as it

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reorganizes, among other judicial districts, the Ninth Judicial District, and establishes an
entirely new district comprising Manila and the provinces of Rizal and Palawan, is valid and
constitutional. This conclusion flows from the fundamental proposition that the legislature may
abolish courts inferior to the Supreme Court and therefore may reorganize them territorially or
otherwise thereby necessitating new appointments and commissions. Section 2, Article VIII of
the Constitution vests in the National Assembly the power to define, prescribe and apportion
the jurisdiction of the various courts, subject to certain limitations in the case of the Supreme
Court. It is admitted that Section 9 of the same Article of the Constitution provides for the
security of tenure of all the judges. The principles embodied in these two sections of the same
Article of the Constitution must be coordinated and harmonized. A mere enunciation of a
principle will not decide actual cases and controversies of every sort. (Justice Holmes in
Lochner v. New York, 198 U.S., 45; 49 Law. ed., 937)" 44 Justice Laurel continued: "I am not
insensible to the argument that the National Assembly may abuse its power and move
deliberately to defeat the constitutional provision guaranteeing security of tenure to all judges.
But, is this the case? One need not share the view of Story, Miller and Tucker on the one
hand, or the opinion of Cooley, Watson and Baldwin on the other, to realize that the
application of a legal or constitutional principle is necessarily factual and circumstantial and
that fixity of principle is the rigidity of the dead and the unprogressive. I do say, and
emphatically, however, that cases may arise where the violation of the constitutional provision
regarding security of tenure is palpable and plain, and that legislative power of reorganization
may be sought to cloak an unconstitutional and evil purpose. When a case of that kind arises,
it will be the time to make the hammer fall and heavily. But not until then. I am satisfied that,
as to the particular point here discussed, the purpose was the fulfillment of what was
considered a great public need by the legislative department and that Commonwealth Act No.
145 was not enacted purposely to affect adversely the tenure of judges or of any particular
judge. Under these circumstances, I am for sustaining the power of the legislative department
under the Constitution. To be sure, there was greater necessity for reorganization consequent
upon the establishment of the new government than at the time Acts Nos. 2347 and 4007
were approved by the defunct Philippine Legislature, and although in the case of these two
Acts there was an express provision providing for the vacation by the judges of their offices
whereas in the case of Commonwealth Act No. 145 doubt is engendered by its silence, this
doubt should be resolved in favor of the valid exercise of the legislative power." 45
6. A few more words on the question of abolition. In the abovecited opinion of Justice Laurel in
Zandueta, reference was made to Act No. 2347 46 on the reorganization of the Courts of First
Instance and to Act No. 4007 47 on the reorganization of all branches of the government,
including the courts of first instance. In both of them, the then Courts of First Instance were
replaced by new courts with the same appellation. As Justice Laurel pointed out, there was no
question as to the fact of abolition. He was equally categorical as to Commonwealth Act No.
145, where also the system of the courts of first instance was provided for expressly. It was
pointed out by Justice Laurel that the mere creation of an entirely new district of the same
court is valid and constitutional, such conclusion flowing "from the fundamental proposition
that the legislature may abolish courts inferior to the Supreme Court and therefore may
reorganize them territorially or otherwise thereby necessitating new appointments and
commissions." 48 The challenged statute creates an intermediate appellate court, 49 regional
trial courts, 50 metropolitan trial courts of the national capital region, 51 and other
metropolitan trial courts, 52 municipal trial courts in cities, 53 as well as in municipalities, 54
and municipal circuit trial courts. 55 There is even less reason then to doubt the fact that
existing inferior courts were abolished. For the Batasang Pambansa, the establishment of such

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new inferior courts was the appropriate response to the grave and urgent problems that
pressed for solution. Certainly, there could be differences of opinion as to the appropriate
remedy. The choice, however, was for the Batasan to make, not for this Court, which deals
only with the question of power. It bears mentioning that in Brillo v. Enage 56 this Court, in a
unanimous opinion penned by the late Justice Diokno, citing Zandueta v. De la Costa, ruled:
"La segunda cuestion que el recurrido plantea es que la Carta de Tacloban ha abolido el
puesto. Si efectivamente ha sido abolido el cargo, entonces ha quedado extinguido el derecho
de recurrente a acuparlo y a cobrar el salario correspondiente. McCulley v. State, 46 LRA, 567.
El derecho de un juez de desempenarlo hasta los 70 aos de edad o se incapacite no priva al
Congreso de su facultad de abolir, fusionar o reorganizar juzgados no constitucionales." 57
Nonetheless, such well-established principle was not held applicable to the situation there
obtaining, the Charter of Tacloban City creating a city court in place of the former justice of
the peace of court. Thus: "Pero en el caso de autos el Juzgado de Tacloban no ha sido abolido.
Solo se le ha cambiado el nombre con el cambio de forma del gobierno local." 58 The present
case is anything but that. Petitioners did not and could not prove that the challenged statute
was not within the bounds of legislative authority.chanroblesvirtuallawlibrary
7. This opinion then could very well stop at this point. The implementation of Batas Pambansa
Blg. 129, concededly a task incumbent on the Executive, may give rise, however, to questions
affecting a judiciary that should be kept independent. The all embracing scope of the assailed
legislation as far as all inferior courts from the Court of Appeals to municipal courts are
concerned, with the exception solely of the Sandiganbayan and the Court of Tax Appeals, 59
gave rise, and understandably so, to misgivings as to its effect on such cherished ideal. The
first paragraph of the section on the transitory provision reads: "The provisions of this Act
shall be immediately carried out in accordance with an Executive Order to be issued by the
President. The Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the
Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the
Municipal Courts, and the Municipal Circuit Courts shall continue to function as presently
constituted and organized, until the completion of the reorganization provided in this Act as
declared by the President. Upon such declaration, the said courts shall be deemed
automatically abolished and the incumbents thereof shall cease to hold office." 60 There is all
the more reason then why this Court has no choice but to inquire further into the allegation by
petitioners that the security of tenure provision, an assurance of a judiciary free from
extraneous influences, is thereby reduced to a barren form of words. The amended
Constitution adheres even more clearly to the long-established tradition of a strong executive
that antedated the 1935 Charter. As noted in the work of former Vice-Governor Hayden, a
noted political scientist, President Claro M. Recto of the 1934 Constitutional Convention
stressed such a concept in his closing address. The 1935 Constitution, he stated, provided for
"an Executive power which, subject to the fiscalization of the Assembly, and of public opinion,
will not only know how to govern, but will actually govern, with a firm and steady hand,
unembarrassed by vexatious interferences by other departments, by unholy alliances with this
and that social group." 61 The above excerpt was cited with approval by Justice Laurel in
Planas v. Gil. 62 The 1981 Amendments embody the same philosophy, this notwithstanding
that once again the principle of separation of powers, to quote from the same jurist as
ponente in Angara v. Electoral Commission, 63 "obtains not through express provision but by
actual division." 64 The President, under Article VII, "shall be the head of state and chief
executive of the Republic of the Philippines." 65 Moreover, all the powers he possessed under
the 1935 Constitution are vested in him anew "unless the Batasang Pambansa provides
otherwise." 66 Article VII of the 1935 Constitution speaks categorically: "The Executive power

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shall be vested in a President of the Philippines." 67 As originally framed, the 1973

Constitution created the position of President as the "symbolic head of state." 68 In addition,
there was a provision for a Prime Minister as the head of government to exercise the executive
power with the assistance of the Cabinet. 69 Clearly, a modified parliamentary system was
established. In the light of the 1981 amendments though, this Court in Free Telephone
Workers Union v. Minister of Labor 70 could state: "The adoption of certain aspects of a
parliamentary system in the amended Constitution does not alter its essentially presidential
character." 71 The retention, however, of the position of the Prime Minister with the Cabinet, a
majority of the members of which shall come from the regional representatives of the
Batasang Pambansa and the creation of an Executive Committee composed of the Prime
Minister as Chairman and not more than fourteen other members at least half of whom shall
be members of the Batasang Pambansa, clearly indicate the evolving nature of the system of
government that is now operative. 72 What is equally apparent is that the strongest ties bind
the executive and legislative departments. It is likewise undeniable that the Batasang
Pambansa retains its full authority to enact whatever legislation may be necessary to carry out
national policy as usually formulated in a caucus of the majority party. It is understandable
then why in Fortun v. Labang, 73 it was stressed that with the provision transferring to the
Supreme Court administrative supervision over the Judiciary, there is a greater need "to
preserve unimpaired the independence of the judiciary, especially so at present, where to all
intents and purposes, there is a fusion between the executive and the legislative branches."
74
8. To be more specific, petitioners contend that the abolition of the existing inferior courts
collides with the security of tenure enjoyed by incumbent Justices and judges Under Article X,
Section 7 of the Constitution. There was a similar provision in the 1935 Constitution. It did
not, however, go as far as conferring on this Tribunal the power to supervise administratively
inferior courts. 75 Moreover, this Court is empowered "to discipline judges of inferior courts
and, by a vote of at least eight members, order their dismissal." 76 Thus it possesses the
competence to remove judges. Under the Judiciary Act, it was the President who was vested
with such power. 77 Removal is, of course, to be distinguished from termination by virtue of
the abolition of the office. There can be no tenure to a non-existent office. After the abolition,
there is in law no occupant. In case of removal, there is an office with an occupant who would
thereby lose his position. It is in that sense that from the standpoint of strict law, the question
of any impairment of security of tenure does not arise. Nonetheless, for the incumbents of
inferior courts abolished, the effect is one of separation. As to its effect, no distinction exists
between removal and the abolition of the office. Realistically, it is devoid of significance. He
ceases to be a member of the judiciary. In the implementation of the assailed legislation,
therefore, it would be in accordance with accepted principles of constitutional construction that
as far as incumbent justices and judges are concerned, this Court be consulted and that its
view be accorded the fullest consideration. No fear need be entertained that there is a failure
to accord respect to the basic principle that this Court does not render advisory opinions. No
question of law is involved. If such were the case, certainly this Court could not have its say
prior to the action taken by either of the two departments. Even then, it could do so but only
by way of deciding a case where the matter has been put in issue. Neither is there any
intrusion into who shall be appointed to the vacant positions created by the reorganization.
That remains in the hands of the Executive to whom it properly belongs. There is no departure
therefore from the tried and tested ways of judicial power. Rather what is sought to be
achieved by this liberal interpretation is to preclude any plausibility to the charge that in the
exercise of the conceded power of reorganizing the inferior courts, the power of removal of the

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present incumbents vested in this Tribunal is ignored or disregarded. The challenged Act would
thus be free from any unconstitutional taint, even one not readily discernible except to those
predisposed to view it with distrust. Moreover, such a construction would be in accordance
with the basic principle that in the choice of alternatives between one which would save and
another which would invalidate a statute, the former is to be preferred. 78 There is an obvious
way to do so. The principle that the Constitution enters into and forms part of every act to
avoid any unconstitutional taint must be applied. Nuez v. Sandiganbayan, 79 promulgated
last January, has this relevant excerpt: "It is true that other Sections of the Decree could have
been so worded as to avoid any constitutional objection. As of now, however, no ruling is
called for. The view is given expression in the concurring and dissenting opinion of Justice
Makasiar that in such a case to save the Decree from the dire fate of invalidity, they must be
construed in such a way as to preclude any possible erosion on the powers vested in this Court
by the Constitution. That is a proposition too plain to be contested. It commends itself for
approval." 80 Nor would such a step be unprecedented. The Presidential Decree constituting
Municipal Courts into Municipal Circuit Courts, specifically provides: "The Supreme Court shall
carry out the provisions of this Decree through implementing orders, on a province-toprovince basis." 81 It is true there is no such provision in this Act, but the spirit that informs it
should not be ignored in the Executive Order contemplated under its Section 44. 82 Thus
Batas Pambansa Blg. 129 could stand the most rigorous test of constitutionality. 83
9. Nor is there anything novel in the concept that this Court is called upon to reconcile or
harmonize constitutional provisions. To be specific, the Batasang Pambansa is expressly
vested with the authority to reorganize inferior courts and in the process to abolish existing
ones. As noted in the preceding paragraph, the termination of office of their occupants, as a
necessary consequence of such abolition, is hardly distinguishable from the practical
standpoint from removal, a power that is now vested in this Tribunal. It is of the essence of
constitutionalism to assure that neither agency is precluded from acting within the boundaries
of its conceded competence. That is why it has long been well-settled under the constitutional
system we have adopted that this Court cannot, whenever appropriate, avoid the task of
reconciliation. As Justice Laurel put it so well in the previously cited Angara decision, while in
the main, "the Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government, the
overlapping and interlacing of functions and duties between the several departments,
however, sometimes makes it hard to say just where the one leaves off and the other begins."
84 It is well to recall another classic utterance from the same jurist, even more emphatic in its
affirmation of such a view, moreover buttressed by one of those insights for which Holmes was
so famous: "The classical separation of government powers, whether viewed in the light of the
political philosophy of Aristotle, Locke, or Montesquieu, or of the postulations of Mabini,
Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in
interdependence than in independence and separation of powers, for as observed by Justice
Holmes in a case of Philippine origin, we cannot lay down with mathematical precision and
divide the branches into watertight compartments not only because the great ordinances of
the Constitution do not establish and divide fields of black and white but also because even
the more specific of them are found to terminate in a penumbra shading gradually from one
extreme to the other." 85 This too from Justice Tuazon, likewise expressing with force and
clarity why the need for reconciliation or balancing is well-nigh unavoidable under the
fundamental principle of separation of powers: "The constitutional structure is a complicated
system, and overlappings of governmental functions are recognized, unavoidable, and
inherent necessities of governmental coordination." 86 In the same way that the academe has

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noted the existence in constitutional litigation of right versus right, there are instances, and
this is one of them, where, without this attempt at harmonizing the provisions in question,
there could be a case of power against power. That we should avoid.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph
10. There are other objections raised but they pose no difficulty. Petitioners would
characterize as an undue delegation of legislative power to the President the grant of authority
to fix the compensation and the allowances of the Justices and judges thereafter appointed. A
more careful reading of the challenged Batas Pambansa Blg. 129 ought to have cautioned
them against raising such an issue. The language of the statute is quite clear. The questioned
provision reads as follows: "Intermediate Appellate Justices, Regional Trial Judges, and
Municipal Circuit Trial Judges shall receive such compensation and allowances as may be
authorized by the President along the guidelines set forth in letter of Implementation No. 93
pursuant to Presidential Decree No. 985, as amended by Presidential Decree No. 1597." 87
The existence of a standard is thus clear. The basic postulate that underlies the doctrine of
non-delegation is that it is the legislative body which is entrusted with the competence to
make laws and to alter and repeal them, the test being the completeness of the statute in all
its terms and provisions when enacted. As pointed out in Edu v. Ericta: 88 "To avoid the taint
of unlawful delegation, there must be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays down fundamental policy. Otherwise,
the charge of complete abdication may be hard to repel. A standard thus defines legislative
policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It
indicates the circumstances under which the legislative command is to be effected. It is the
criterion by which legislative purpose may be carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines promulgate
supplemental rules and regulations. The standard may be either express or implied. If the
former, the non-delegation objection is easily met. The standard though does not have to be
spelled out specifically. It could be implied from the policy and purpose of the act considered
as a whole." 89 The undeniably strong links that bind the executive and legislative
departments under the amended Constitution assure that the framing of policies as well as
their implementation can be accomplished with unity, promptitude, and efficiency. There is
accuracy, therefore, to this observation in the Free Telephone Workers Union decision: "There
is accordingly more receptivity to laws leaving to administrative and executive agencies the
adoption of such means as may be necessary to effectuate a valid legislative purpose. It is
worth noting that a highly-respected legal scholar, Professor Jaffe, as early as 1947, could
speak of delegation as the dynamo of modern government." 90 He warned against a
"restrictive approach" which could be "a deterrent factor to much-needed legislation." 91
Further on this point from the same opinion: "The spectre of the non-delegation concept need
not haunt, therefore, party caucuses, cabinet sessions or legislative chambers." 92 Another
objection based on the absence in the statute of what petitioners refer to as a "definite time
frame limitation" is equally bereft of merit. They ignore the categorical language of this
provision: "The Supreme Court shall submit to the President, within thirty (30) days from the
date of the effectivity of this act, a staffing pattern for all courts constituted pursuant to this
Act which shall be the basis of the implementing order to be issued by the President in
accordance with the immediately succeeding section." 93 The first sentence of the next
Section is even more categorical: "The provisions of this Act shall be immediately carried out
in accordance with an Executive Order to be issued by the President." 94 Certainly, petitioners
cannot be heard to argue that the President is insensible to his constitutional duty to take care
that the laws be faithfully executed. 95 In the meanwhile, the existing inferior courts affected

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continue functioning as before, "until the completion of the reorganization provided in this Act
as declared by the President. Upon such declaration, the said courts shall be deemed
automatically abolished and the incumbents thereof shall cease to hold office." 96 There is no
ambiguity. The incumbents of the courts thus automatically abolished "shall cease to hold
office." No fear need be entertained by incumbents whose length of service, quality of
performance, and clean record justify their being named anew, 97 in legal contemplation,
without any interruption in the continuity of their service. 98 It is equally reasonable to
assume that from the ranks of lawyers, either in the government service, private practice, or
law professors will come the new appointees. In the event that in certain cases, a little more
time is necessary in the appraisal of whether or not certain incumbents deserve
reappointment, it is not from their standpoint undesirable. Rather, it would be a reaffirmation
of the good faith that will characterize its implementation by the Executive. There is
pertinence of this observation of Justice Holmes that even acceptance to the generalization
that courts ordinarily should not supply omissions in a law, a generalization qualified as earlier
shown by the principle that to save a statute that could be done, "there is no canon against
using common sense in consuming laws as saying what they obviously mean." 99 Where then
is the unconstitutional flaw?
11. In the morning of the hearing of this petition on September 8, 1981, petitioners sought to
have the writer of this opinion and Justices Ramon C. Aquino and Ameurfina Melencio-Herrera
disqualified because the first-named was the Chairman and the other two, members of the
Committee on Judicial Reorganization. At the hearing, the motion was denied. It was made
clear then and there that not one of the three members of the Court had any hand in the
framing or in the discussion of Batas Pambansa Blg. 129. They were not consulted. They did
not testify. The challenged legislation is entirely the product of the efforts of the legislative
body. 100 Their work was limited, as set forth in the Executive Order, to submitting
alternative plans for reorganization. That is more in the nature of scholarly studies. That they
undertook. There could be no possible objection to such activity. Even since 1973, this
Tribunal has had administrative supervision over inferior courts. It has had the opportunity to
inform itself as to the way judicial business is conducted and how it may be improved. Even
prior to the 1973 Constitution, it is the recollection of the writer of this opinion that either the
then Chairman or members of the Committee on Justice of the then Senate of the Philippines
101 consulted members of the Court in drafting proposed legislation affecting the judiciary. It
is not inappropriate to cite this excerpt from an article in the 1975 Supreme Court Review: "In
the twentieth century the Chief Justice of the United States has played a leading part in
judicial reform. A variety of conditions have been responsible for the development of this role,
and foremost among them has been the creation of explicit institutional structures designed to
facilitate reform." 102 Also: "Thus the Chief Justice cannot avoid exposure to and direct
involvement in judicial reform at the federal level and, to the extent issues of judicial
federalism arise, at the state level as well." 103
12. It is a cardinal article of faith of our constitutional regime that it is the people who are
endowed with rights, to secure which a government is instituted. Acting as it does through
public officials, it has to grant them either expressly or impliedly certain powers. Those they
exercise not for their own benefit but for the body politic. The Constitution does not speak in
the language of ambiguity: "A public office is a public trust." 104 That is more than a moral
adjuration. It is a legal imperative. The law may vest in a public official certain rights. It does
so to enable them to perform his functions and fulfill his responsibilities more efficiently. It is
from that standpoint that the security of tenure provision to assure judicial independence is to

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be viewed. It is an added guarantee that justices and judges can administer justice undeterred
by any fear of reprisal or untoward consequence. Their judgments then are even more likely to
be inspired solely by their knowledge of the law and the dictates of their conscience, free from
the corrupting influence of base or unworthy motives. The independence of which they are
assured is impressed with a significance transcending that of a purely personal right. As thus
viewed, it is not solely for their welfare. The challenged legislation was thus subjected to the
most rigorous scrutiny by this Tribunal, lest by lack of due care and circumspection, it allows
the erosion of that ideal so firmly embedded in the national consciousness. There is this
further thought to consider. Independence in thought and action necessarily is rooted in ones
mind and heart. As emphasized by former Chief Justice Paras in Ocampo v. Secretary of
Justice, 105 "there is no surer guarantee of judicial independence than the God-given
character and fitness of those appointed to the Bench. The judges may be guaranteed a fixed
tenure of office during good behavior, but if they are of such stuff as allows them to be
subservient to one administration after another, or to cater to the wishes of one litigant after
another, the independence of the judiciary will be nothing more than a myth or an empty
ideal. Our judges, we are confident, can be of the type of Lord Coke, regardless or in spite of
the power of Congress we do not say unlimited but as herein exercised to reorganize
inferior courts." 106 That is to recall one of the greatest Common Law jurists, who at the cost
of his office made clear that he would not just blindly obey the Kings order but "will do what
becomes [him] as a judge." So it was pointed out in the first leading case stressing the
independence of the judiciary, Borromeo v. Mariano. 107 The ponencia of Justice Malcolm
identified good judges with "men who have a mastery of the principles of law, who discharge
their duties in accordance with law, who are permitted to perform the duties of the office
undeterred by outside influence, and who are independent and self-respecting human units in
a judicial system equal and coordinate to the other two departments of government." 108
There is no reason to assume that the failure of this suit to annul Batas Pambansa Blg. 129
would be attended with deleterious consequences to the administration of justice. It does not
follow that the abolition in good faith of the existing inferior courts except the Sandiganbayan
and the Court of Tax Appeals and the creation of new ones will result in a judiciary unable or
unwilling to discharge with independence its solemn duty or one recreant to the trust reposed
in it. Nor should there be any fear that less than good faith will attend the exercise of the
appointing power vested in the Executive. It cannot be denied that an independent and
efficient judiciary is something to the credit of any administration. Well and truly has it been
said that the fundamental principle of separation of powers assumes, and justifiably so, that
the three departments are as one in their determination to pursue the ideals and aspirations
and to fulfill the hopes of the sovereign people as expressed in the Constitution. There is
wisdom as well as validity to this pronouncement of Justice Malcolm in Manila Electric Co. v.
Pasay Transportation Company, 109 a decision promulgated almost half a century ago: "Just
as the Supreme Court, as the guardian of constitutional rights, should not sanction
usurpations by any other department of the government, so should it as strictly confine its
own sphere of influence to the powers expressly or by implication conferred on it by the
Organic Act." 110 To that basic postulate underlying our constitutional system, this Court
remains committed.
WHEREFORE, the unconstitutionality of Batas Pambansa Blg. 129 not having been shown, this
petition is dismissed. No costs.chanroblesvirtuallawlibrary
Makasiar and Escolin, JJ., concur.

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Concepcion, Jr., J., concurs in the result, the abolition being in good faith.
Fernandez, J., concurs provided that in the task of implementation by the Executive as far as
the present Justices and judges who may be separated from their service, it would be in
accordance with the tenets of constitutionalism if this Court be consulted and that its view be
respected.
Separate Opinions
BARREDO, J., concurring:chanrob1es virtual 1aw library
I join the majority of my brethren in voting that the Judiciary Reorganization Act of 1980,
Batas Pambansa Blg. 129, is not unconstitutional as a whole nor in any of its part.
The issue of unconstitutionality raised by petitioners relates particularly to Section 44 of the
Act which reads as follows:jgc:chanrobles.com.ph
"SEC. 44. Transitory provisions. The provisions of this Act shall be immediately carried out
in accordance with an Executive Order to be issued by the President. The Court of Appeals, the
Courts of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations
Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Circuit Courts shall
continue to function as presently constituted and organized, until the completion of the
reorganization provided in this Act as declared by the President. Upon such declaration, the
said courts shall be deemed automatically abolished and the incumbents thereof shall cease to
hold office. The cases pending in the old Courts shall be transferred to the appropriate Courts
constituted pursuant to this Act, together with the pertinent functions, records, equipment,
property and the necessary personnel.
"The applicable appropriations shall likewise be transferred to the appropriate courts
constituted pursuant to this Act, to be augmented as may be necessary from the funds for
organizational changes as provided in Batas Pambansa Blg. 80. Said funding shall thereafter
be included in the annual General Appropriations Act."cralaw virtua1aw library
It is contended by petitioners that the provision in the above section which mandates that
"upon the declaration (by the President that the reorganization contemplated in the Act has
been completed), the said courts (meaning, the Court of Appeals and all other lower courts,
except the Sandiganbayan and the Court of Tax Appeals) shall be deemed abolished and the
incumbents thereof shall cease to hold office" trenches on all the constitutional safeguards and
guarantees of the independence of the judiciary, such as the security of tenure of its members
(Section 7, Article X of the Philippine Constitution of 1973), the prerogative of the Supreme
Court to administratively supervise all courts and the personnel thereof (Section 6, Id.) and
principally, the power of the Supreme Court "to discipline judges of inferior courts and, by a
vote of at least eight Members, order their dismissal." (Section 7, Id.)
On the other hand, respondents maintain that thru the above-quoted Section 44, the Batasan
did nothing more than to exercise the authority conferred upon it by Section 1 of the same
Article of the Constitution which provides that" (T)he Judicial power shall be vested in one
Supreme Court and in such inferior courts as may be established by law." In other words,

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since all inferior courts are, constitutionally speaking, mere creatures of the law (of the
legislature), it follows that it is within the legislatures power to abolish or reorganize them
even if in so doing, it might result in the cessation from office of the incumbents thereof
before the expiration of their respective constitutionally-fixed tenures. Respondents emphasize
that the legislative power in this respect is broad and indeed plenary.
Viewing the problem before Us from the above perspectives, it would appear that our task is
either (1) to reconcile, on the one hand, the parliaments power of abolition and reorganization
with, on the other, the security of tenure of members of the judiciary and the Supreme Courts
authority to discipline and remove judges or (2) to declare that either the power of the
Supreme Court or of the Batasan is more paramount than that of the other. I believe,
however, that such a manner of looking at the issue that confronts Us only confuses and
compounds the task We are called upon to perform. For how can there be a satisfactory and
rational reconciliation of the pretended right of a judge to continue as such, when the position
occupied by him no longer exists? To suggest, as some do, that the solution is for the court he
is sitting in not to be deemed abolished or that he should in some way be allowed to continue
to function as judge until his constitutional tenure expires is obviously impractical, if only
because we would then have the absurd spectacle of a judiciary with old and new courts
functioning under distinct set-ups, such as a district court continuing as such in a region where
the other judges are regional judges or of judges exercising powers not purely judicial which is
offensive to the Constitution. The other suggestion that the incumbent of the abolished court
should be deemed appointed to the corresponding new court is even worse, since it would
deprive the appointing authority, the President, of the power to make his own choices and
would, furthermore, amount to an appointment by legislation, which is a constitutional
anachronism. More on this point later.chanroblesvirtuallawlibrary
Inasmuch as pursuant to the analysis of the majority of the Members of this Court, in fact and
in law, the structure of judicial system created by Batas Pambansa 129 is substantially
different from that under the Judiciary Act of 1948, as amended, hence the courts now
existing are actually being abolished, why do We have to indulge in any reconciliation or feel
bound to determine whose power, that of the Batasang Pambansa or that of this Court, should
be considered more imperious? It being conceded that the power to create or establish carries
with it the power to abolish, and it is a legal axiom, or at least a pragmatic reality, that the
tenure of the holder of an office must of necessity end when his office no longer exists, as I
see it, We have no alternative than to hold that petitioners invocation of the independence-ofthe-judiciary principle of the Constitution is unavailing in the cases at bar. It is as simple as
that. I might hasten to add, in this connection, that to insist that what Batas Pambansa 129 is
doing is just a renaming, and not a substantial and actual modification or alteration of the
present judicial structure or system, assuming a close scrutiny might somehow support such a
conclusion, is pure wishful thinking, it being explicitly and unequivocally provided in the
section in question that said courts "are deemed abolished" and further, as if to make it most
unmistakably emphatic, that "the incumbents thereof shall cease to hold office." Dura lex, sed
lex. As a matter of fact, I cannot conceive of a more emphatic way of manifesting and
conveying the determined legislative intent about it.
Now, why am I yielding to the above reasoning and conclusion? Why dont I insist on
championing the cause of the independence of the judiciary by maintaining that the
constitutional safeguards thereof I have already enumerated earlier must be respected in any
reorganization ordained by the parliament? My answer is simple. Practically all the Members of

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the Court concede that what is contemplated is not only general reorganization but abolition
in other words, not only a rearrangement or remodelling of the old structure but a total
demolition thereof to be followed by the building of a new and different one. I am practically
alone in contemplating a different view. True, even if I should appear as shouting in the
wilderness, I would still make myself a hero in the eyes of many justices and judges, members
of the bar and concerned discerning citizens, all lovers of the judicial independence, but
understandably, I should not be, as I am not, disposed to play such a role virtually at the
expense not only of my distinguished colleagues but of the Batasang Pambansa that framed
the law and, most of all, the President who signed and, therefore, sanctioned the Act as it is,
unless I am absolutely sure that my position is formidable, unassailable and beyond all
possible contrary ratiocination, which I am not certain of, as I shall demonstrate anon.
To start with, the jurisprudence, here and abroad, touching on the question now before Us
cannot be said to be clear and consistent, much less unshakable and indubitably definite either
way. None of the local cases 1 relied upon and discussed by the parties and by the Members
of the Court during the deliberations, such as Borromeo, 2 Ocampo, 3 Zandueta, 4 Brillo, 5
etc. can, to my mind, really serve as reliable pole stars that could lead me to certainty of
correctness.
Of course, my instinct and passion for an independent judiciary are uncompromising and
beyond diminution. Indeed, my initial reactions, publicly known, about Batas Pambansa 129
explaining academically its apparent tendency to invade the areas of authority of the Supreme
Court, not to speak of its dangerously impairing the independence of the judiciary, must have,
I imagine, created the impression that I would vote to declare the law unconstitutional. But,
during the deliberations of the Court, the combined wisdom of my learned colleagues was
something I could not discount or just brush aside. Pondering and thinking deeper about all
relevant factors, I have come to the conviction that at least on this day and hour there are
justifiable grounds to uphold the Act, if only to try how it will operate so that thereby the
people may see that We are one with the President and the Batasan in taking what appear to
be immediate steps needed to relieve the people from a fast spreading cancer in the judiciary
of our country.
Besides, the Philippines has somehow not yet returned to complete normalcy. The improved
national discipline, so evident during the earlier days of martial law, has declined at a quite
discernible degree. Different sectors of society are demanding urgent reforms in their
respective fields. And about the most vehement and persistent, loud and clear, among their
gripes, which as a matter of fact is common to all of them, is that about the deterioration in
the quality of performance of the judges manning our courts and the slow and dragging pace
of pending judicial proceedings. Strictly speaking, this is, to be sure, something that may not
necessarily be related to lack of independence of the judiciary. It has more to do with the
ineptness and/or corruption among and corruptibility of the men sitting in the courts in some
parts of the country. And what is worse, while in the communities concerned, the malady is
known to factually exist and is actually graver and widespread, very few, if any, individuals or
even associations and organized groups, truly incensed and anxious to be of help, have the
courage and possess the requisite legal evidence to come out and file the corresponding
charges with the Supreme Court. And I am not yet referring to similar situations that are not
quite openly known but nevertheless just as deleterious. On the other hand, if all these
intolerable instances should actually be formally brought to the Supreme Court, it would be
humanly impossible for the Court to dispose of them with desirable dispatch, what with the

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thousands of other cases it has to attend to and the rather cumbersome strict requirements of
procedural due process it has to observe in each and every such administrative case, all of
which are time consuming. Verily, under the foregoing circumstances, it may be said that
there is justification for the patience of the people about the possibility of early eradication of
this disease or evil in our judiciary pictured above to be nearing the breaking point.
Withal, we must bear in mind that judicial reorganization becomes urgent and inevitable not
alone because of structural inadequacies of the system or of the cumbersomeness and
technicality-peppered and dragging procedural rules in force, but also when it becomes
evident that a good number of those occupying positions in the judiciary, make a mockery of
justice and take advantage of their office for selfish personal ends and yet, as already
explained, those in authority cannot expeditiously cope with the situation under existing laws
and rules. It is my personal assessment of the present situation in our judiciary that its
reorganization has to be of necessity two-pronged, as I have just indicated, for the most ideal
judicial system with the most perfect procedural rules cannot satisfy the people and the
interests of justice unless the men who hold positions therein possess the character,
competence and sense of loyalty that can guarantee their devotion to duty and absolute
impartiality, nay, impregnability to all temptations of graft and corruption, including the usual
importunings and the fearsome albeit improper pressures of the powers that be. I am certain
that the Filipino people feel happy that Batas Pambansa 129 encompasses both of these
objectives, which indeed are aligned with the foundation of the principle of independence of
the judiciary.chanrobles law library
The above premises considered, I have decided to tackle our problem from the viewpoint of
the unusual situation in which our judiciary is presently perilously situated. Needless to say, to
all of us, the Members of the Court, the constitutional guarantees of security of tenure and
removal-only-by the Supreme Court, among others, against impairment of the independence
of the judiciary, which is one of the bedrocks and, therefore, of the essence in any "democracy
under a regime of justice, peace, liberty and equality," (Preamble of the 1973 Constitution),
are priceless and should be defended, most of all by the Supreme Court, with all the wisdom
and courage God has individually endowed to each of Us. Withal, we are all conscious of the
fact that those safeguards have never been intended to place the person of the judge in a
singular position of privilege and untouchability, but rather, that they are essentially part and
parcel of what is required of an independent judiciary where judges can decide cases and do
justice to everyone before them ruat caelum. However, We find Ourselves face to face with a
situation in our judiciary which is of emergency proportions and to insist on rationalizing how
those guarantees should be enforced under such circumstance seem to be difficult, aside from
being controversial. And so, in a real sense, We have to make a choice between adhering to
the strictly legalistic reasoning pursued by petitioners, on the one hand, and the broader and
more practical approach, which as I have said is within the spirit at least of the Constitution.
My concept of the Constitution is that it is not just a cluster of high sounding verbiages
spelling purely idealism and nobility in the recognition of human dignity, protection of
individual liberties and providing security and promotion of the general welfare under a
government of laws. With all emphasis and vehemence, I say that the fundamental law of the
land is a living instrument which translates and adapts itself to the demands of obtaining
circumstances. It is written for all seasons, except for very unusual instances that human
ratiocination cannot justify to be contemplated by its language even if read in its broadest
sense and in the most liberal way. Verily, it is paramount and supreme in peace and in war,

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but even in peace grave critical situations arise demanding recourse to extraordinary
solutions. Paraphrasing the Spanish adage, "Grandes males, grandes remedios," such in
ordinary problems justify exceptional remedies. And so, history records that in the face of
grave crises and emergencies, the most constitutionally idealistic countries have, at one time
or another, under the pressure of pragmatic considerations, adopted corresponding realistic
measures, which perilously tether along the periphery of their Charters, to the extent of
creating impressions, of course erroneous, that the same had been transgressed, although in
truth their integrity and imperiousness remained undiminished and unimpaired.
The Philippines has but recently had its own experience of such constitutional approach. When
martial law was proclaimed here in 1972, there were those who vociferously shouted not only
that the President had acted arbitrarily and without the required factual bases contemplated in
the Commander-in-Chief clause of the 1935 Constitution, but more, that he had gone beyond
the traditional and universally recognized intent of said clause by utilizing his martial law
powers not only to maintain peace and tranquility and preserve and defend the integrity and
security of the state but to establish a New Society. The critics contended that martial law is
only for national security, not for the imposition of national discipline under a New Society.
Due to its relevancy to Our present discussion, it is well for everyone to bear in mind that in
this jurisdiction, this concept of martial law has already been upheld several times by this
Court. I, for one, accepted such a construction because I firmly believe that to impose martial
law for the sole end of suppressing an insurrection or rebellion without coincidentally taking
corresponding measures to eradicate the root causes of the uprising is utter folly, for the
country would still continue to lay open to its recurrence.
I have made the foregoing discourse, for it is fundamentally in the light of this Courts
doctrines about the imposition of martial law as I have stated that I prefer to base this
concurrence. To put it differently, if indeed there could be some doubt as to the correctness of
this Courts judgment that Batas Pambansa 129 is not unconstitutional, particularly its Section
44, I am convinced that the critical situation of our judiciary today calls for solutions that may
not in the eyes of some conform strictly with the letter of the Constitution but indubitably
justified by its spirit and intent. As I have earlier indicated, the Charter is not just a
construction, of words to whose literal ironclad meanings we must feel hidebound, without
regard to every Constitutions desirable inherent nature of adjustability and adaptability to
prevailing situations so that the spirit and fundamental intent and objectives of the framers
may remain alive. Batas Pambansa 129 is one such adaptation that comes handy for the
attainment of the transcendental objectives it seeks to pursue. While, to be sure, it has the
effect of factually easing out some justices and judges before the end of their respective
constitutional tenure sans the usual administrative investigation, the desirable end is achieved
thru means that, in the light of the prevailing conditions, is constitutionally
permissible.chanrobles law library : red
Before closing, it may not be amiss for me to point out that Batas Pambansa 129, aside from
what has been discussed about its effect on the guarantees of judicial independence, also
preempts, in some of its provisions, the primary rule-making power of the Supreme Court in
respect to procedure, practice and evidence. With the pardon of my colleagues, I would just
like to say that the Court should not decry this development too much. After all, the
legislature is expressly empowered by the Charter to do so, (Section 5(5), Article X of the
Constitution of 1973) so much so, that I doubt if the Court has any authority to alter or modify

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any rule the Batasang Pambansa enunciates. Truth to tell, as Chairman of the Committee on
the Revision of the Rules of Court, for one reason or another, principally the lack of a clear
consensus as to what some of my colleagues consider very radical proposals voiced by me or
my committee, We have regrettably procrastinated long enough in making our procedural
rules more practical and more conducive to speedier disposal and termination of controversies
by dealing more with substantial justice.
So also have We, it must be confessed, failed to come up to expectations of the framers of the
Constitution in our ways of disposing of administrative complaints against erring and
misconducting judges. Of course, We can excuse Ourselves with the explanation that not only
are We overloaded with work beyond human capability of its being performed expeditiously,
but that the strict requisites of due process which are time consuming have precluded Us from
being more expeditious and speedy.
I feel I must say all of these, because if the above-discussed circumstances have not
combined to create a very critical situation in our judiciary that is making the people lose its
faith and confidence in the administration of justice by the existing courts, perhaps the Court
could look with more sympathy at the stand of petitioners. I want all and sundry to know,
however, that notwithstanding this decision, the independence of the judiciary in the
Philippines is far from being insubstantial, much less meaningless and dead. Batas Pambansa
129 has precisely opened our eyes to how, despite doubts and misgivings, the Constitution
can be so construed as to make it possible for those in authority to answer the clamor of the
people for an upright judiciary and overcome constitutional roadblocks more apparent than
real.
To those justices, judges, members of the bar and concerned citizens whose eyes may be
dimming with tears of disappointment and disenchantment because of the stand I have
chosen to adopt in these cases, may I try to assuage them by joining their fervent prayers
that some other day, hopefully in the near future, Divine Providence may dictate to another
constitutional convention to write the guarantees of judicial independence with ink of deeper
hue and words that are definite, clear, unambiguous and unequivocal, in drawing the line of
demarcation between the Parliament and the Judiciary in the manner that in His Infinite
wisdom would most promote genuine and impartial justice for our people, free, not only from
graft, corruption, ineptness and incompetence but even from the tentacles of interference and
insiduous influence of the political powers that be. Presently, I am constrained from going
along with any other view than that the Constitution allows abolition of existing courts even if
the effect has to be the elimination of any incumbent judge and the consequent cutting of his
constitutional tenure of office.chanroblesvirtuallawlibrary
I cannot close this concurrence without referring to the apprehensions in some quarters about
the choice that will ultimately be made of those who will be eased out of the judiciary in the
course of the implementation of Batas Pambansa 129. By this decision, the Court has in
factual effect albeit not in constitutional conception yielded generally to the Batasang
Pambansa, and more specifically to the President, its own constitutionally conferred power of
removal of judges. Section 44 of the Batasans Act declares that all of them shall be deemed
to have ceased to hold office, leaving it to the President to appoint those whom he may see fit
to occupy the new courts. Thus, those who will not be appointed can be considered as
"ceasing to hold their respective offices," or, as others would say they would be in fact
removed. How the President will make his choices is beyond Our power to control. But even if

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some may be eased out even without being duly informed of the reason therefor, much less
being given the opportunity to be heard, the past actuations of the President on all matters of
deep public interest should serve as sufficient assurance that when he ultimately acts, he will
faithfully adhere to his solemn oath "to do justice to every man," hence, he will equip himself
first with the fullest reliable information before he acts. This is not only my individual faith
founded on my personal acquaintances with the character and sterling qualities of President
Ferdinand E. Marcos. I dare say this is the faith of the nation in a man who has led it
successfully through crises and emergencies, with justice to all, with malice towards none. I
am certain, the President will deal with each and every individual to be affected by this
reorganization with the best light that God will give him every moment he acts in each
individual case as it comes for his decision.
AQUINO, J., concurring:chanrob1es virtual 1aw library
I concur in the result. The petitioners filed this petition for declaratory relief and prohibition "to
declare the Judiciary Reorganization Act of 1980 (Batas Pambansa Blg. 129)
unconstitutional."cralaw virtua1aw library
The petition should have been dismissed outright because this Court has no jurisdiction to
grant declaratory relief and prohibition is not the proper remedy to test the constitutionality of
the law. The petition is premature. No jurisdictional question is involved.
There is no justiciable controversy wherein the constitutionality of the said law is in issue. It is
presumed to be constitutional. The lawmaking body before enacting it looked into the
constitutional angle.
Seven of the eight petitioners are practising lawyers. They have no personality to assail the
constitutionality of the said law even as taxpayers.
The eighth petitioner, Gualberto J. de la Llana, a city judge (who in 1977 filed a petition for
declaratory relief assailing Presidential Decree No. 1229, which called for a referendum, De la
Llana v. Comelec, 80 SCRA 525), has no cause of action for prohibition. He is not being
removed from his position.
The Judiciary Reorganization Law was enacted in utmost good faith and not "to cloak an
unconstitutional and evil purpose." As ably expounded by the Chief Justice, in enacting the
said law, the lawmaking body acted within the scope of its constitutional powers and
prerogatives.
GUERRERO, J., concurring:chanrob1es virtual 1aw library
I concur with my distinguished and learned colleagues in upholding the constitutionality of the
Judiciary Reorganization Act of 1980. For the record, however, I would like to state my
personal convictions and observations on this case, a veritable landmark case, for whatever
they may be worth.chanrobles lawlibrary : rednad
The legal basis of the Courts opinion rendered by our esteemed Chief Justice having been
exhaustively discussed and decisively justified by him, a highly-respected expert and authority
on constitutional law, it would be an exercise in duplication to reiterate the same cases and

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precedents. I am then constrained to approach the problem quite differently, not through the
classic methods of philosophy, history and tradition, but following what the well-known jurist,
Dean Pound, said that "the most significant advance in the modern science of law is the
change from the analytical to the functional attitude." 1 And in pursuing this direction, I must
also reckon with and rely on the ruling that "another guide to the meaning of a statute is
found in the evil which it is designed to remedy, and for this the court properly looks at
contemporaneous events, the situation as it existed, and as it was pressed upon the attention
of the legislative body." 2
I have no doubt in my mind that the institutional reforms and changes envisioned by the law
are clearly conducive to the promotion of national interests. The objectives of the legislation,
namely: (a) An institutional restructuring by the creation of an Intermediate Appellate Court,
thirteen (13) Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts; (b) A re-apportionment of jurisdiction geared towards greater
efficiency; (c) a Simplification of procedures; and (d) The abolition of the inferior courts
created by the Judiciary Act of 1948 and other statutes, as approved by the Congress of the
Philippines 3 are undoubtedly intended to improve the regime of justice and thereby enhance
public good and order. Indeed, the purpose of the Act as further stated in the Explanatory
Note, which is "to embody reforms in the structure, organization and composition of the
Judiciary, with the aim of improving the administration of justice, of decongesting judicial
dockets, and coping with the more complex problems on the present and forseeable future"
cannot but "promote the welfare of society, since that is the final cause of law." 4
Hence, from the standpoint of the general utility and functional value of the Judiciary
Reorganization Act, there should be no difficulty, doubt or disbelief in its legality and
constitutionality. That there are ills and evils plaguing the judicial system is undeniable. The
notorious and scandalous congestion of court dockets is too well-known to be ignored as are
the causes which create and produce such anomaly. Evident is the need to look for devices
and measures that are more practical, workable and economical. 5
From the figures alone (301,497 pending cases in 1976; 351,943 in 1977; 404,686 in 1978;
426,911 in 1979; 441,332 in 1980; and 450,063 as of February 3, 1982) 6 the congested
character of court dockets rising year after year is staggering and enormous, looming like a
legal monster.
But greater than the need to dispense justice speedily and promptly is the necessity to have
Justices and Judges who are fair and impartial, honest and incorruptible, competent and
efficient. The general clamor that the prestige of the Judiciary today has deteriorated and
degenerated to the lowest ebb in public estimation is not without factual basis. Records in the
Supreme Court attest to the unfitness and incompetence, corruption and immorality of many
dispensers of justice. According to the compiled data, the total number of Justices and Judges
against whom administrative charges have been filed for various offenses, misconduct,
venalities and other irregularities reaches 322. Of this total, 8 are Justices of the Court of
Appeals, 119 CFI Judges, 2 Criminal Circuit Court Judges, 8 Car Judges, 1 Juvenile and
Domestic Relations Court Judge, 38 City Judges, and 146 Municipal Judges.
The Supreme Court had found 102 of them guilty and punished them with either suspension,
admonition, reprimand or fine. The number includes 1 CA Justice, 35 CFI Judges, 1 CCC
Judge, 3 CAR Judges, 1 JDRC Judge, 9 City Judges and 53 Municipal

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Judges.chanroblesvirtuallawlibrary
Seventeen (17) Judges have been ordered dismissed and separated from the service. And
these are 3 CFI, 1 CAR, 1 City Judge and 12 Municipal Judges.
Going over these administrative proceedings, it took an average of two-year period from the
filing of the charge to the dismissal of the Respondent. In one case, the proceedings were
terminated after seven years. How long the pending administrative cases will be disposed of,
only time will tell as an increasing number of administrative cases are being filed by victims of
judicial misconduct, abuse and arbitrariness.
Excepting those who have been punished and dismissed from the service, there are many who
have been castigated and censured in final judgments of the Supreme Court upon appeal or
review of the decisions, orders and other acts of the respondent courts, Justices and Judges.
To cite a few cases, Our decisions have categorically pronounced respondents actuations,
thus: "deplorable, giving no credit to the Judiciary" 7; "everything was irregular and violative
of all pertinent and applicable rules. The whole proceedings looked no more than a prearranged compromise between the accused and the judge to flaunt the law and every norm of
propriety and procedure" 8; "there was a deliberate failure of respondent Judge to respect
what is so clearly provided in the Rules of Court" 9; "It is unfortunate that respondent Judge
failed to acquaint himself with, or misinterpreted, those controlling provisions and doctrines"
10; "The failure of the respondent Municipal Judge to yield obedience to authoritative
decisions of the Supreme Court and of respondent Court of First Instance Judge and his
deplorable insistence on procedural technicalities was called down in L-49828, July 25, 1981.
For peremptorily dismissing the third party complaint on the ground that the motion to dismiss
was well-taken and respondent Judge did not elaborate, the Court remarked: "May his tribe
vanish." 11 In one case, We noted "There is here something unusual, but far from palliating
the gravity of the error incurred, it merely exacerbated it. . . . it did render the due process
requirement nugatory, for instead of a fair and impartial trial, there was an idle form, a
useless ceremony." 12
It is dishonorable enough to be publicly and officially rebuked but to allow these Judges and
their ilk to remain and continue to preside in their courtrooms is a disgrace to the Judiciary. It
is to be deplored that the Supreme Court has not found time to exercise its power and
authority in the premises, for no charges or proceedings have been instituted against them.
We have a list of these crooked Judges whose actuations have been found to be patently
wrong and manifestly indefensible. There ought to be no objection or compunction in weeding
them out from the service. If they are not booted out now, it will take from here to eternity to
clean this Augean stable.
Candidly, one reason for writing this concurring opinion is to call attention to these evils,
abuses and wrongs which are surreptitiously but surely destroying the trust and faith of the
people in the integrity of the entire Judiciary. Some members of the Court felt that these
revelations would be like washing dirty linen in public. But these facts are of public and official
records, nay court cases, and sooner or later, Truth will come out.
In the light of these known evils and infirmities of the judicial system, it would be absurd and
unreasonable to claim that the legislators did not act upon them in good faith and honesty of
purpose and with legitimate ends. It is presumed that official duty has been regularly

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performed. 13 The presumption of regularity is not confined to the acts of the individual
officers but also applies to the acts of boards, such as administrative board or bodies. and to
acts of legislative bodies. 14 Good faith is always to be presumed in the absence of proof to
the contrary, of which there is none in the case at bar. It could not be otherwise if We are to
accord as We must, full faith and credit to the lawmakers deep sense of public service and the
judicious exercise of their high office as the duly-elected representatives of the
people.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
It is conceded that the abolition of an office is legal if attendant with good faith. 15 The
question of good faith then is the crux of the conflict at bar. Good faith in the enactment of the
law does not refer to the wisdom of the measure, the propriety of the Act, or to its
expediency. The questions raised by petitioners and amicus curiae for their cause, viz: Why
abolish all the courts? Why legislate out the judges? Why not amend the Rules of Court only?
Is abolition of all courts the proper remedy to weed out corrupt and misfits in our Judiciary?
may not be inquired into by Us. "It is not the province of the courts to supervise legislation
and keep it within the bounds of propriety and common sense. That is primarily and
exclusively a legislative concern." 16 The Courts "are not supposed to override legitimate
policy and . . . never inquire into the wisdom of the law." 17 Chief Justice Fernando who
penned the Morfe decision, writes that while" (i)t is thus settled, to paraphrase Chief Justice
Concepcion in Gonzales v. Commission on Elections, that only congressional power or
competence, not the wisdom of the action taken, may be the basis for declaring a statute
invalid," 18 he adds that it is "useful to recall what was so clearly stated by Laurel that the
Judiciary in the determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive and
legislative departments of the government." 19 in any case, petitioners have not shown an
iota of proof of bad faith. There is no factual foundation of bad faith on record. And I do not
consider the statement in the sponsorship speech for Cabinet Bill No. 42 of Minister of Justice
Ricardo J. Puno that the Bill would be a more efficient vehicle of "eliminating incompetent and
unfit Judges" as indicative of impermissible legislative motive. 20
It may be true that while the remedy or solution formulated by the legislation will eradicate
hopefully or at least minimize the evils and ills that infect and pester the judicial body, it will
result in the actual removal of the Justices of the Court of Appeals and Judges of the lower
courts. It is also true that whether it is termed abolition of office or removal from office, the
end-result is the same termination of the services of these incumbents. Indeed, the law
may be harsh, but that is the law. Dura lex sed lex.
The Justices and Judges directly affected by the law, being lawyers, should know or are
expected to know the nature and concept of a public office. It is created for the purpose of
effecting the ends for which government has been instituted, which are for the common good,
and not the profit, honor or private interest of any one man, family or class of men. In our
form of government, it is fundamental that public offices are public trust, and that the person
to be appointed should be selected solely with a view to the public welfare. 21 In the last
analysis, a public office is a privilege in the gift of the State. 22
There is no such thing as a vested interest or an estate in an office, or even an absolute right
to hold office. Excepting constitutional offices which provide for special immunity as regards
salary and tenure, no one can be said to have any vested right in an office or its salary. When
an office is created by the Constitution, it cannot be abolished by the legislature, but when

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created by the State under the authority of the Constitution, it may be abolished by statute
and the incumbent deprived of his office. 23 Acceptance of a judicial appointment must be
deemed as adherence to the rule that "when the court is abolished, any unexpired term is
abolished also. The Judge of such a court takes office with that encumbrance and knowledge."
24 "The Judges right to his full term and his full salary are not dependent alone upon his good
conduct, but also upon the contingency that the legislature may for the public good, in
ordaining and establishing the courts, from time to time consider his office unnecessary and
abolish it."25cralaw:red
The removal from office of the incumbent then is merely incidental to the valid act of abolition
of the office as demanded by the superior and paramount interest of the people. The bad and
the crooked Judges must be removed. The good and the straight, sober Judges should be
reappointed but that is the sole power and prerogative of the President who, I am certain, will
act according to the best interest of the nation and in accordance with his solemn oath of
office "to preserve and defend its Constitution, execute its laws, do justice to everyone . . ."
There and then the proper balance between the desire to preserve private interest and the
desideratum of promoting the public good shall have been struck. 26
The Supreme Court has been called the conscience of the Constitution. It may be the last
bulwark of constitutional government. 27 It must, however, be remembered that legislatures
are ultimate guardians of the liberties and welfare of the people in quite as great a degree as
courts." 28 The responsibility of upholding the Constitution rests not on the courts alone but
on the legislatures as well. It adheres, therefore, to the well-settled principle that "all
reasonable doubts should be resolved in favor of the constitutionality of a statute" for which
reason it will not set aside a law as violative of the Constitution "except in a clear case." 29
Finally, I view the controversy presented to Us as a conflict of opinions on judicial
independence, whether impaired or strengthened by the law; on reorganization of the courts,
whether abolition of office or removal therefrom; and on delegation of legislative power,
whether authorized or unauthorized. Without detracting from the merits, the force and
brilliance of their advocacies based on logic, history and precedents, I choose to stand on the
social justification and the functional utility of the law to uphold its constitutionality. In the
light of the contemporaneous events from which the New Republic emerged and evolved new
ideals of national growth and development, particularly in law and government, a kind or form
of judicial activism, perhaps similar to it, is necessary to justify as the ratio decidendi of Our
judgment.chanroblesvirtuallawlibrary
This is the time and the moment to perform a constitutional duty to affix my imprimatur and
affirmance to the law, hopefully an act of proper judicial statesmanship.
ABAD SANTOS, J., concurring and dissenting:chanrob1es virtual 1aw library
I agree with the learned Chief Justice of the Philippines that Batas Pambansa Blg. 129 is not
unconstitutional. Unlike Oscar Wilde, I choose not to yield to temptation by embellishing my
concurrence lest I be accused of bringing coal to Newcastle. Accordingly, I will simply vote to
dismiss the petition.
However, I cannot agree with the Chief Justice when he says:jgc:chanrobles.com.ph

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". . . In the implementation of the assailed legislation, therefore, it would be in accordance

with accepted principles of constitutional construction that as far as incumbent justices and
judges are concerned, this Court be consulted and that its view be accorded the fullest
consideration. There would be no plausibility then to the allegation that there is an
unconstitutional taint to the challenged Act. Moreover, such a construction would be in
accordance with the basic principle that in the choice of alternatives between one which would
save and another which would invalidate a statute, the former is to be preferred."cralaw
virtua1aw library
It has already been ruled that the statute does not suffer from any constitutional infirmity
because the abolition of certain judicial offices was done in good faith. This being the case, I
believe that the Executive is entitled to exercise its constitutional power to fill the newly
created judicial positions without any obligation to consult with this Court and to accord its
views the fullest consideration. To require consultation will constitute an invasion of executive
territory which can be resented and even repelled. The implicit suggestion that there could be
an unconstitutional implementation of the questioned legislation is not congruent with the
basic conclusion that it is not unconstitutional.
DE CASTRO, J., concurring:chanrob1es virtual 1aw library
I concur in the declaration that the law is not unconstitutional.
May I, however, submit this separate opinion more to avoid being misunderstood by my
brethren in the judiciary as not feeling for them as much concern as I should for their security
of tenure which is raised as the main argument against the constitutionality of the law, than
by way of giving added force or support to the main opinion so well-written by Our learned
Chief Justice in his usual scholarly fashion. I, therefore, limit myself to a discussion that the
assailed statute is not unconstitutional without having to suggest how it may be implemented
in order that it could stand the most rigid test of constitutionality, for in that area, what is
involved is purely an executive act of the President in whose wisdom, patriotism and sense of
justice We should trust in how he would fulfill his sworn duties to see that the laws are
faithfully executed and to do justice to every man.
Moreover, while I also concur in the dismissal of the petition, I do so on the additional ground
that petitioners have not fulfilled all the requisites for the exercise by this Court of its power of
judicial inquiry the power to declare a law unconstitutional.
I
The creation and organization of courts inferior to the Supreme Court is a constitutional
prerogative of the legislature. This prerogative is plenary and necessarily implies the power to
reorganize said courts, and in the process, abolish them to give way to new or substantially
different ones. To contend otherwise would be to forget a basic doctrine of constitutional law
that no irrepealable laws shall be passed. 1
The power to create courts and organize them is necessarily the primary authority from which
would thereafter arise the security of tenure of those appointed to perform the functions of
said courts. In the natural order of things, therefore, since the occasion to speak of security of

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tenure of judges arises only after the courts have first been brought into being, the right to
security of tenure takes a secondary position to the basic and primary power of creating the
courts to provide for a fair and strong judicial system. If the legislature, in the exercise of its
authority, deems it wise and urgent to provide for a new set of courts, and in doing so, it feels
the abolition of the old courts would conduce more to its objective of improving the judiciary
and raising its standard, the matter involved is one of policy and wisdom into which the
courts, not even the Supreme Court, cannot inquire, much less interfere with. By this
secondary position it has to the primary power of the legislature to create courts, the security
of tenure given to the incumbents should not be a legal impediment to the exercise of that
basic power of creating the statutory courts which, by necessary implication, includes the
power to abolish them in order to create new ones. This primary legislative power is a
continuing one, and the resultant right of security of tenure of those appointed to said courts
could not bring about the exhaustion of that power. Unquestionably, the legislature can repeal
its own laws, and that power can never be exhausted without, as a consequence, violating a
fundamental precept of constitutional and representative government that no irrepealable laws
shall be passed.
If the creation of courts is a legislative prerogative their abolition is, therefore, a matter of
legislative intent. It involves the exercise of legislative power, an act of legislation which
generally concerns policy in the formation of which the courts have no say. Initially, when the
legislature creates the courts, it suffers from no limitation arising from the necessity of
respecting the security of tenure of judges who are not yet there. This inherent character of
fullness and plenitude of the power to create and abolish courts does not change when that
same power is once more exercised thereafter, as the need therefor is felt. Which only goes to
show that when done in good faith and motivated solely by the good and the well-being of the
people, the exercise of the power is not meant to be restricted, curtailed, much less exhausted
by the so-called judicial security of tenure.
The passage of the Judiciary Reorganization Act of 1980 is no more than the exercise of the
power vested by the Constitution on the legislative body of the Republic as described above.
That power carries with it the duty and responsibility of providing the people with the most
effective and efficient system of administration of justice. This is by far of more imperative and
transcendental importance than the security of tenure of judges which, admittedly, is one of
the factors that would conduce to independence of the judiciary but first of all, a good,
efficient and effective judiciary. A judiciary wanting in these basic qualities does not deserve
the independence that is meant only for a judiciary that can serve best the interest and
welfare of the people which in the most primordial and paramount consideration, not a
judiciary in which the peoples faith has been eroded, a condition which the security of tenure,
in some instances, may even be contributory.chanrobles law library
In enacting the Judiciary Reorganization Act of 1980, the legislature is presumed to have been
motivated by no other objective than to provide the people the kind of judicial machinery that
would best serve their interest and welfare, in its belief that the present machinery is falling
short of that measure of public service. It should, likewise, be presumed that it has been led
to this low estimate of the utility and effectiveness of the present set-up of the judiciary after
informing itself, with the facilities at its command, such as the power of legislative
investigation, of the actual condition of the courts, particularly as to whether they continue to
enjoy the trust, faith and confidence of the public, and what the cause or causes are of their
erosion, if not loss, as is the keenly perceptible feeling of the people in general. Responsibility

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for this more or less extensive slowdown of the delivery of judicial service can be laid on no
other than neither of the two components of a court the procedural laws or rules that
govern the workings of the courts, or the persons executing or applying them or both.
When two interests conflict as what had given rise to the present controversy the duty of
the legislature to provide society with a fair, efficient and effective judicial system, on one
hand, and the right of judges to security of tenure, on the other, the latter must of necessity
yield to the former. One involves public welfare and interest more directly and on a greater
magnitude than the right of security of tenure of the judges which is, as is easily discernible,
more of a personal benefit to just a few, as indeed only the judge affected could seek judicial
redress of what he conceives to be its violation.
Herein lies the propriety of the exercise of "police power" of the State, if this concept which
underlies even the Constitution, has to be invoked as a constitutional justification of the
passage of the Act in question. That is, if a conflict between the primary power of the
legislature to create courts, and mere consequential benefit accorded to judges and justices
after the creation of the courts is indeed perceivable, which the writer fails to see, or, at least,
would disappear upon a reconciliation of the two apparently conflicting interests which, from
the above disquisition, is not hard to find. It is, without doubt, in the essence of the exercise
of police power that a right assertable by individuals may be infringed in the greater interest
of the public good and general welfare. This is demonstrated in how the rights and freedoms
enumerated in the Bill of Rights enjoyable by the entire people, not just by a handful in
comparison, are made subject to the lawful exercise of the police power of the State.
Viewed, therefore, from the abovementioned perspective, the general revamp of the judiciary
involving both its components the court as an office or institution, and the judges and
justices that man them should not find any legal obstacle in the security of tenure of
judges. This security, after all, is no more than as provided for all other officials and
employees in the civil service of the government in Section 3, Article XII-B of the Constitution
which provides:jgc:chanrobles.com.ph
"No officer or employees in the civil service shall be suspended or dismissed except for cause
as provided by law."cralaw virtua1aw library
The provision of Article XVII, Section 10 of the Constitution gives to judicial officials no more
than a guarantee that their retirement age as fixed in the Constitution shall not be alterable at
mere legislative pleasure. The equivalent provision in the 1935 Constitution was inserted for
the first time because the retirement age before then was provided merely by statute not by
the Constitution. If it comes to their removal or suspension, what gives them constitutional
protection is the aforequoted provision which does not contemplate abolition of office when
done in good faith, for removal implies the existence of the office, not when it is abolished.
Admittedly, as has been held, abolition of office for no reason related to public welfare or for
the good of the service, let alone when done in bad faith, amounts to an unlawful removal. 2
The abolition of the courts as declared in the Act as a result of a reorganization of the
judiciary, as the Title of the law curtly but impressively announces, can by no means, from
any viewpoint, be so branded. And whether by said reorganization, the present courts would
be deemed abolished, as the law expresses such an unmistakable intent, the matter is one for
the sole and exclusive determination of the legislature. It rests entirely on its discretion
whether by the nature and extent of the changes it has introduced, it has done enough to

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consider them abolished. To give the Supreme Court the power to determine the extent or
nature of the changes as to their structure, distribution and jurisdiction, before the clear intent
to abolish them, or to declare them so abolished, is given effect, would be to allow undue
interference in the function of legislation. This would be contrary to the primary duty of courts
precisely to give effect to the legislative intent as expressed in the law or as may be
discovered therefrom.chanrobles.com:cralaw:red
From the above observation, it would be futile to insist that the present courts would not
effectively be abolished by the Act in question. It might be to arrogate power for Us to say
that the changes the law brings to the present judicial system, do not suffice for this Court to
give effect to the clear intent of the legislative body. Where would the agrarian courts, the
circuit criminal courts, the JDRCs be in the judicial structure as envisioned by the law? Are
they not abolished by merger with the regional trial courts, which by such merger, and by the
other changes introduced by the law, would make said courts different from the present
Courts of First Instance which, as a consequence, may then be considered abolished?
Integrated as the present courts are supposed to be, changes somewhere in the judicial
machinery would necessarily affect the entire system.
The fact that the Supreme Court may specially assign courts to function as the special courts
just mentioned, does not mean that the changes wrought are only superficial or "cosmetic" as
this term has been used so often in the oral argument. Without the new law, these courts will
remain fixed and permanent where they are at present. Yet in the course of time, the need for
their independent existence may disappear, or that by changed conditions, where they are
needed at present at a certain place, the need for them may be somewhere else in later years,
if maximum benefit at the least expense is to be achieved, as always should be a most
desirable goal and objective of government.
Demonstrably then, the abolition of the courts is a matter of legislative intent into which no
judicial inquiry, is proper, except perhaps if that intent is so palpably tainted with
constitutional repugnancy, which is not so in the instant case. We have, therefore, no
occasion, as earlier intimated, to speak of removal of judges when the reorganization of the
judiciary would result in the abolition of the courts other than the Supreme Court and the
Court of Tax Appeals. Hence, the provision of the Constitution giving to the Supreme Court
power to dismiss a judge by a vote of eight justices does not come into the vortex of the
instant controversy. Its possible violation by the assailed statute cannot happen, and may,
therefore, not constitute an argument against the constitutionality of the law.
Former Justice Barrera, in a speech before the Philippine Bar Association, 3 impliedly indorsed
the judicial revamp when he enumerated the qualities of a good judge that the appointing
power should consider in making new appointments to the judiciary upon its reorganization
pursuant to the questioned Act. The words of the eminent jurist may well reflect the favorable
reaction of the public in general to what the Act aims to achieve in the name of good and clean
government. The present judicial incumbents, who have not in any way, by their acts and
behavior while in office, tarnished the good image that the judiciary should have, therefore,
have no cause for apprehension that what they are entitled to under the Constitution by way
of security of tenure will be denied them, considering the publicly known aim and purpose of
the massive judicial revamp, specially as cherished with deep concern by the President who
initiated the move when he created the Judiciary Reorganization Committee to recommend
needed and appropriate judicial reforms.

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If the only obstacle to a verdict in favor of constitutionality of the law is its possible effect of
impairing the security of tenure of the incumbents, We may have the following facts to
consider:chanrob1es virtual 1aw library
1. Under the 1973 Constitution all incumbent judges and justices may continue in office until
replaced or reappointed by the President. As to those judicial officials, no security of tenure, in
the traditional concept, attaches to their incumbency which is, in a real sense, only a holdover tenure. How the President has exercised this immense power with admirable restraint
should serve as the strongest guarantee of how justice and fairness will be his sole guide in
implementing the law.
2. As to the rest of the incumbents, they are all appointees of Our present President, and he
should feel concerned more than anyone else to protect whatever rights they may rightfully
claim to maintain their official standing and integrity. They need have no fear of being ignored
for no reason at all, much less for mere spirit of vindictiveness or lack of nobility of heart.
From the foregoing, it would become apparent that only in the implementation of the law may
there possibly be a taint of constitutional repugnancy, as when a judge of acknowledged
honesty, industry and competence is separated, because an act of arbitrariness would thereby
be committed, but the abolition of the courts as decreed by the law is not by itself or per se
unconstitutional.
Consequently, the law, the result of serious and concerned study by a highly competent
committee, deserves to be given a chance to prove its worth in the way of improving the
judiciary. If in its implementation, any one, if at all, feels aggrieved, he can always seek
judicial redress, if he can make out a case of violation of his right of security of tenure with
uncontrovertible clarity, as when the separation is very arbitrary in the peculiar circumstances
of his case, for an act of arbitrariness, under any constitution, is unpardonable.
II
This petition should also be dismissed for being premature, as is the stand of Justice Aquino.
The petition asks this Court to exercise its power of judicial inquiry, the power to declare a law
unconstitutional when it conflicts with the fundamental law (People v. Vera, 65 Phil. 56). This
power has well-defined limits, for it can be exercised only when the following requisites are
present, to wit: (1) There must be an actual case or controversy; (2) The question of
constitutionality must be raised by the proper party; (3) He should do so at the earliest
opportunity; and (4) The determination of the constitutionality of the statute must be
necessary to a final determination of the case.
I am of the opinion that the petition does not present an actual controversy nor was it filed by
the proper parties.cralawnad
The main ground for which the constitutionality of the Judiciary Reorganization Act of 1980 is
assailed is that it is violative of the security of tenure of justices and judges. The only persons
who could raise the question of constitutionality of the law are, therefore, the actual
incumbents of the courts who would be separated from the service upon the abolition of the

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courts affected by the law, on the theory as advanced by petitioners that their judicial security
of tenure would be violated. Olongapo City Judge de la Llana, the only judge among the
petitioners, has not been separated from the service. Nor is his separation already a certainty,
for he may be appointed to the court equivalent to his present court, or even promoted to a
higher court. Only when it has become certain that his tenure has been terminated will an
actual controversy arise on his allegation of a fact that has become actual, not merely
probable or hypothetical.
The present petition may neither be allowed as a taxpayer suit. A taxpayer may bring an
action to raise the question of constitutionality of a statute only when no one else can more
appropriately bring the suit to defend a right exclusively belonging to him, and, therefore,
would localize the actual injury to his person, and to no other. For a "proper party" to invoke
the power of judicial inquiry, as one of the requisites in the exercise of such power, does not
mean one having no better right, one more personalized, than what he has as a member of
the public in general. With the incumbent judges undoubtedly being the ones under
petitioners theory, who would suffer direct and actual injury, they should exclude mere
taxpayers who cannot be said to suffer as "direct" and "actual" an injury as the judges and
justices by the enforcement of the assailed statute, from the right to bring the suit.
The validity of the foregoing observation becomes more evident when We consider that only
after the fate of the present incumbents is known, whether they have been actually separated
or not, would the present courts be declared abolished. For the law clearly continues their
existence until all the new courts have been filled up with new appointments, or at least such
number as would be equal to the number of actual incumbents, and they are the very courts
to which they may lay claim to the right to continue therein, so that the status of each and
everyone of them has thereby been made certain. Only then, upon the actual abolition of the
courts, may there possibly be a violation of the security of tenure; as contended, that would
give rise to an "actual controversy" in which the "proper party" can be no other than the
judges who feel aggrieved by their non-appointment to the new courts.
It would, therefore, not be proper to declare the law void at this stage, before it has even
been given a chance to prove its worth, as the legislature itself and all those who helped by
their exhaustive and scholarly study, felt it to be an urgent necessity, and before any of the
proper parties who could assail its constitutionality would know for a fact, certain and actual,
not merely probable or hypothetical, that they have a right violated by what they could
possibly contend to be an unconstitutional enforcement of the law, not by a law that is
unconstitutional unto itself.
I am, therefore, for giving the law a chance to be put into application so as not to douse great
popular expectations for the courts to regain their highest level of efficiency had reputation for
probity. Inevitably, this is to be so since only when the law is fully implemented will all the
courts affected be declared abolished, undoubtedly to avoid an interregnum when the country
is without any court, except the Supreme Court, the Court of Tax Appeals and the Sandigan.
Only then will it be known whether an actual controversy would arise because any of the
incumbents have been left out in the restructured judiciary.
There would then be also a proper party to assail the constitutionality of the law, conformably
to the conditions requisite for the exercise of the power of judicial inquiry which by their
stringent character, together with the constitutional prescription of a comparatively higher

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vote to declare a law unconstitutional, reveal a salutary principle of government that a law
should, by all reasonable intendment and feasible means, be saved from the doom of
unconstitutionality, the rule corollary thereto being that if a law is susceptible to two
interpretations, one of which would make it constitutional that interpretation should be
adopted that will not kill the law.
It is to adhere to the above principles that the submission is made herein, that while in the
implementation of the law, constitutional repugnancy may not entirely be ruled out, a
categorical ruling hereon not being necessary or desirable at the moment, the law itself is
definitely not unconstitutional. 4 Any of the incumbent judges who feel injured after the law
shall have been implemented has adequate remedy in law, with full relief as would be proper.
But surely, the benefits envisioned by the law in the discharge of one of the basic duties of
government to the people the administration of justice should not be sacrificed, as it
would be, if the law is, as sought in the present petition, declared void right now, on the claim
of a few being allegedly denied a right, at best of doubtful character, for the claim would seem
to rest on an unsupportable theory that they have a vested right to a public office.
Just one more point. The law in question is not self-executing in the sense that upon its
effectivity, certain judges and justices cease to be so by direct action of the law. This is what
distinguishes the Act in question from R.A. No. 1186 involved in the Ocampo case, 5 which by
its direct action, no act of implementation being necessary, all the judges whose positions
were abolished, automatically ceased as such. The Act in question, therefore, is not as
exposed to the same vulnerability to constitutional attack as R.A. No. 1186 was. Yet by the
operation of the Constitution with its wise provision on how a law may be declared
unconstitutional, R.A. No. 1186 stood the test for it to be enforced to the fullness of its intent,
which was, as in the law under consideration, identified with public interest and general
welfare, through a more efficient and effective judicial system as the Judiciary Reorganization
Act of 1980 seeks to establish.
Hence, the constitutionality of the law should not be assailed, and the law itself, striken down,
on the ground that some judges or justices may be removed or separated in violation of their
security of tenure. The law does not directly operate with that effect. It is in how the law
would be implemented that this feared eventuality may or may not occur. We would then be
killing the law on a mere speculation if We do so at this stage. This would be an injudicious act
done in reckless disregard of the safeguards built around a law to defend it when its
constitutionality is attacked; first, the presumption that a law is constitutional; second, when a
law is susceptible to two interpretations one that would make it constitutional, the other,
unconstitutional, the former should be adopted; and third, the Constitution itself which ordains
that a law may not be declared unconstitutional except on the vote of at least ten (10)
members of the Supreme Court, more than what is required for an ordinary decision of the
Court en banc. This is not to mention the stringent requisites for the exercise of the power of
judicial inquiry as already adverted to, all designed to save the law from the dire fate of
unconstitutionality.chanrobles virtual lawlibrary
To the writer, the question before this Court is a simple matter of choosing between protecting
some judges from possible separation, as the implementation of the law to achieve its primary
purpose of improving the judiciary may have to result in, or serving the interest of the entire
society through an honest, efficient and effective judiciary. For, it is unthinkable that what is
for the good of the people as a whole could have been meant by the Constitution to be

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sacrificed for the sake of only a few. The greatest good for the greatest number is an
unwritten rule, more firm and enduring than any of the postulates spread in our written
Constitution. This, I might say, is the main theme of this separate opinion, otherwise
expressed in the well-known and a time-honored maxim: "Salus populi est suprema
lex."cralaw virtua1aw library
MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library
There is unqualified adherence on my part to the dismissal of the Petition filed in this case. If I
am writing this separate concurrence, it is merely to state certain views I entertain in regards
to the constitutionality of Batas Pambansa Blg. 129.
The controversy in this case involves two constitutional provisions. Article X, Section 1, of the
Organic law provides that the legislative has the power to establish inferior Courts by law.
Section 7 of the same Article reads:jgc:chanrobles.com.ph
"SEC. 7. The Members of the Supreme Court and judges of inferior courts shall hold office
during good behavior until they reach the age of seventy years or become incapacitated to
discharge the duties of their office. The Supreme Court shall have the power to discipline
judges of inferior courts and, by a vote of at least eight Members, order their dismissal."cralaw
virtua1aw library
There should be no conflict between the two provisions. Both should be harmonized.
1. a) It is a fundamental proposition that the legislative power to create Courts ordinarily
includes the power to organize and to reorganize them, and that the power to abolish Courts is
generally coextensive with the power to create them. The power to abolish was not intended
to be qualified by the permanence of tenure (Opinion of Chief Justice Ricardo Paras in Ocampo
v. Secretary of Justice, 51 O.G. 147 [1955], citing McCulley v. State, 53 SW 134; Halsey v.
Gaines, 2 Lea 316). The right of Judges to hold office during good behavior until they reach
the age of 70 years, or become incapacitated to discharge the duties of their office, does not
deprive Congress of its power to abolish, organize or reorganize inferior Courts (Brillo v.
Enage, 94 Phil. 732, 735, citing Zandueta v. de la Costa, 66 Phil. 615; 42 Am. Jur., Pub.
Officer, 904-5). Judges of those Courts take office with that encumbrance and knowledge.
"The legislative power to create a court carries with it the power to abolish it. When the court
is abolished any unexpired term is abolished also. The judge of such court takes office with
that encumbrance and knowledge. Perkins v. Corbin, 45 Ala. 103, 6 Am. Rep. 698, State, ex
rel. Thomas v. Gunter, 170 Ala. 165, 54 So 283, Et. Al."cralaw virtua1aw library
The importance and the imperative of maintaining the independence of the Judiciary is
undisputed. At the same time, the power of Congress under the Constitution cannot be
abridged. For, in the last analysis, it is not the security of tenure per se that is the only
safeguard to the independence of the Judiciary. It is the character and the mettle of the
Judges who sit on the Bench. Has not the impression been created in the public mind that
there are those who have abused the prerogatives of their judicial position knowing that they
are untouchables by virtue of the permanence of their tenure?
b) A distinction should be made between tenure of Judges and tenure of Courts. Section 1

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heretofore mentioned refers to the "Judiciary" as a fundamental department of Government.

Section 7 quoted above refers to the tenure of office of "individual" Judges (inclusive of
Justices of inferior Courts); that is to say, tenure of office is a matter concerning the individual
Judge. This "individuality" character of Section 7 is supported by the clause that the Supreme
Court has the power to discipline individual judges of inferior Courts.
A legislature is not bound to give security of tenure to Courts. Courts can be abolished. In fact,
the entire judicial system can be changed. If that system can no longer admit of change, woe
to the wheels of progress and the imperatives of growth in the development of the Judiciary.
To hold that tenure of Judges is superior to the legislative power to reorganize is to render
impotent the exercise of that power.
It may even be stated that, under Section 7, supra, Judges are entailed to their Courts, from
which they cannot be separated before retirement age except as a disciplinary action for bad
behavior. Under Section 1, Courts are not entailed to their Judges, because the power of the
legislative to establish inferior Courts presupposes the power to abolish those Courts. If an
inferior Court is abolished, the Judge presiding that Court will necessarily have to lose his
position because the abolished Court is not entailed to him.
c) The constitutional guarantee of tenure of Judges applies only as their Courts exist. As long
as those Courts exist, the Judges cannot be ousted without just cause; that is the extent of
the constitutional provision relative to security of tenure of Judges. Upon declaration of the
completion of the reorganization as provided for in the Reorganization Act, the affected Courts
"shall be deemed automatically abolished." There being no Courts, there are no offices for
which tenure of Judges may be claimed. By the abolition of those offices, the rights to them
are necessarily extinguished (Manalang v. Quitoriano, 94 Phil. 903 [1954]).
2. I am satisfied that the challenged law was enacted by the Batasang Pambansa in response
to an urgent and pressing public need and not for the purpose of affecting adversely the
security of tenure of all Judges or legislating them out to the detriment of judicial
independence. It should not be said of the Batasang Pambansa that its power of abolition of
Courts has been used to disguise an unconstitutional and evil purpose to defeat the security of
tenure of Judges. The Judiciary Reorganization Act of 1981 sufficiently complies with the bona
fide rule in the abolition of public office, as clearly explained in the main opinion. Besides,
every presumption of good faith in its actuations must be accorded a coordinate and coequal
branch of government, supreme within the limits of its own sphere, until that presumption is
clearly overcome. There is no showing that the Reorganization Act was motivated for personal
or political reasons as to justify the interference by the Court (Garvey v. Lowell, 199 Mass 47,
85 N.E. 182, 127 A.S.R. 468; State v. Eduards, 40 Mont. 287; 106 Pac. 695, 19 R.C.L. 236;
Llanto v. Dimaporo, 16 SCRA 599 [1966]). Public interest and public good, as the legislative
body views it, must be balanced with tenure of Judges, which is an individual right. Reverting
to Section 1 and Section 7, supra, the former is the weightier, because the "Judiciary" is of
more importance to the welfare of the country than the tenure of office of an individual Judge.
If a Judge is removed without cause, there can be damage to the public welfare to some
extent, but maintenance of a Court that does not meet the requirements of progressive
Government, can cause incalculable prejudice to the people.
3. Nor does a conflict exist with the power of discipline vested in the Supreme Court by the
present Constitution reading: the Supreme Court shall have the power "to discipline Judges of

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inferior Courts, and, by a vote of at least 8 members, order their dismissal." Absent the Court,
it would be futile to speak of the Supreme Courts power to discipline. Thus, where the
legislature has willed that the Courts be abolished, the power to discipline cannot pose an
obstacle to the abolition. The power to discipline can come into play only when there is
removal from an existing judicial office, but not when that office is abolished. The
reorganization of the judicial system with the abolition of certain Courts is not an exercise of
the power to discipline the Judges of the abolished Courts.
It is of significance to note that the power of dismissal vested in the Supreme Court by the
1973 Constitution is delimited by its power to discipline. Absent any need for discipline and the
power to dismiss does not exist. Being circumscribed in scope, it may well be asked: does the
grant of the power of discipline and dismissal in the Supreme Court deprive the executive of
the power of removal? Is it not more in keeping with the allocation of powers in our
government to state that the Supreme Court shares its power to dismiss with the executive
power of removal? For is not the power of removal basically executive in nature, as an incident
to the power of appointment, which is the prerogative of the Chief Executive alone? As in the
case of appointments, Section 5(6), Article X of the Constitution provides that the Supreme
Court shall appoint its officials and employees. However, is not this power shared with the
power of appointment of the executive who appoints some of the Court officials? These
questions could lend themselves to an in-depth study in the proper case.
4. The abolition would be no deprivation either of due process of law. A public office cannot be
regarded as the "property" of the incumbent. A public office is not a contract (Segovia v. Noel,
47 Phil. 543 [1925]). A public office is a public trust (Section 1, Article XIII, 1973
Constitution). It is a privilege in the gift of the State (Brown v. Russel, 166 Mass. 14, 43 NE
1005, 32 LRA 253 cited also in Taada & Carreon, Political Law of the Philippines, Vol. 2, p.
537). The officers are the servants of the people and not their rulers (22 R.C.L. 378-379, cited
in Martin, Administrative Law, Law on Public Officers and Election Law, p. 112, 1970 ed.).
Besides, it bears stressing that there is no removal from office but abolition of the office itself.
5. The questioned statute is in keeping with major reforms in other departments of
government. "The thrust is on development." It is "the first major reorganization after four
generations." It does not provide for a piecemeal change, which could be ineffective. It goes
to the roots and does not just scratch the surface of our judicial system. Its main objectives
are an improved administration of justice, the "attainment of more efficiency in the disposal of
cases, a reallocation of jurisdiction, and a revision of procedures which do not tend to the
proper meting out of justice." These aims are policy matters of necessity in the pursuit of
developmental goals within the Judiciary.
6. The Reorganization Act reorganizes the entire judicial system excluding the Supreme Court,
which is the only constitutional Court, and the Sandiganbayan. It envisages institutional
reforms in the Philippine judiciary. It does not simply change the names of the Courts. The
facts herein are dissimilar from those in Brillo v. Enage (94 Phil. 732 [1954]) where the
position of Justice of the Peace, although ostensibly abolished, was merely changed to
Municipal Judge after the municipality of Tacloban was converted into a city with its own
charter.
Significant among the institutional changes and procedural reforms are:chanrob1es virtual
1aw library

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The Intermediate Appellate Court

This Court is now constituted into ten (10) divisions instead of fifteen (15), five members
composing each division, and a majority vote of three members being needed for a decision.
This obviates the cumbersome procedure, in case of dissent, of assigning two other members
to compose a "division of five." It also allows flexibility in that any three members of a
division, arriving at unanimity, can promulgate a decision.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
Now provided for is specialization into four (4) Civil Cases Divisions, two (2) Criminal Cases
Divisions and four (4) Special Cases Divisions. The specialization is expected to contribute to
the expeditious disposal of cases.
The Court has been given original jurisdiction to issue Writs of mandamus,
prohibition, certiorari,habeas corpus, quo warranto and auxiliary writs or processes whether or
not in aid of its appellate jurisdiction. This would undoubtedly ease the burden of the Supreme
Court where numerous such cases are filed daily.
It has exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or
award of quasi-judicial agencies, instrumentalities, boards or commissions, except those
falling within the exclusive appellate jurisdiction of the Supreme Court in accordance with the
Constitution.
The Intermediate Appellate Court would now have the power to try cases and conduct
hearings, receive evidence and perform any and all acts necessary to resolve factual issues
raised in cases falling within its original and appellate jurisdiction, including the power to grant
and conduct new trials or further proceedings (Sec. 9). This does away with the delays
attendant to the remand of cases to the lower trial Courts.
Regional Trial Courts
There are now thirteen (13) Judicial Regions, the same as the present administrative and
Batasang Pambansa Regions, instead of sixteen (16) Judicial Districts.
A Judge is appointed to a region, which is his official station. This ensures mobility since a
Judge may be assigned anywhere within the Region without applying the constitutional
limitation of six months. Additionally, it can remedy temporary inequalities of caseloads in trial
Courts.
Specialized Courts are integrated into the Regional Trial Courts. Thus, Regional Trial Courts
would try all cases within its jurisdiction unless special cases are assigned to them, in which
case, they remain as Branches of Regional Trial Courts. Special procedures and technical rules
governing special Courts will continue to remain applicable in Branches assigned those special
cases.
Metropolitan Trial Courts
There is one Metropolitan Trial Court with several Branches for large urban areas. The

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appointment of Judges would be to a Metropolitan Trial Court, although a Judge may be

assigned by the Supreme Court to any Branch of the Metropolitan Trial Court as demanded by
the exigencies of the service.
The Supreme Court may designate certain Branches of said Courts to exercise special
jurisdiction over certain cases, unlike the present set-up where special jurisdiction applies only
to cases of traffic violations.
Municipal Trial Courts/Municipal Circuit Trial Courts
Municipal Trial Courts may now be designated by the Supreme Court to exercise special
jurisdiction over certain cases, thereby resulting in overall flexibility. They can also be
circuitized with those in cities not forming part of metropolitan areas.
One notable change between the old and the new set-up is that Judges of these Courts will
now be Presidential appointees unlike presently where the incumbent Judges are merely
designated by the Supreme Court in an Administrative Order to sit in existing Municipal Courts
and Municipal Circuit Courts.
7. There are innovative features in the Act that commend themselves:chanrob1es virtual 1aw
library
a) The confusing and illogical areas of concurrent jurisdiction between the trial Courts have
been entirely eliminated.
b) Under Section 39, there is a uniform period for appeal of fifteen (15) days counted from the
notice of the final order, resolution, award, judgment, or decision appealed from.
A record on appeal is no longer required to take an appeal. The entire original record is now to
be transmitted.
c) Under Section 40, in deciding appealed cases, adoption by reference of findings of fact and
conclusions of law as set forth in the decision, order, or resolution appealed from, is also
provided for. This will expedite the rendition of decisions in appealed cases.
d) Section 42 provides for "a monthly longevity pay equivalent to 5% of the monthly basic pay
for Justices and Judges of the courts herein created for each five years of continuous, efficient,
and meritorious service rendered in the Judiciary, Provided that, in no case shall the total
salary of each Justice or Judge concerned, after this longevity pay is added, exceed the salary
of the Justice or Judge next in rank." Thus, Justices and Judges who may not reach the top,
where unfortunately there is not enough room for all, may have the satisfaction of at least
approximating the salary scale of those above him depending on his length of service.
8. But while the law itself as written is constitutional, the manner in which it will be
administered should not be tainted with unconstitutionality (Myles Salt Co. v. Board of
Commrs., 292 US 478, 60 L. Ed. 392, 36 Sct 204). To obviate the possibility of an
unconstitutional exercise of power the following safeguards are recommended and/or expected
to be undertaken:chanrob1es virtual 1aw library

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a) The President can be expected to indicate a reasonable time frame for the completion of the
reorganization provided for in the Act and the issuance of the corresponding implementing
Order.
b) Appointments and their effectivity should be simultaneous with, or as close as possible, to
the declaration by the President of the completion of the reorganization under Section 44 to
avoid any detriment to the smooth and continuous functioning of the judicial
machinery.chanroblesvirtuallawlibrary
c) The services of those not separated should be deemed uninterrupted, as recommended by
the Committee on Judicial Reorganization (Article XI of its Report).
9. For the speedy implementation of the law, the Supreme Court can be expected to submit to
the President within thirty (30) days from the date of finality of its Decision the staffing
pattern for all Courts required by Section 43.
I am constrained to disagree with the suggestion of one of the amici curiae that the staffing
pattern be made to include the names of Judges. The staffing pattern for Judges is already
clearly and explicitly provided in the law itself which enumerates the various Judges and
Justices in their hierarchical order. Furthermore, to include the superior positions of Judges
would depart from the traditional concept of a staffing pattern, which refers more to personnel
organization and corresponding salaries of inferior employees. It is also constitutionally
objectionable in that it would interfere with the prerogative of appointment intrinsically
executive in nature (Guevara v. Inocentes, 16 SCRA 379 [1966]; Government of the
Philippines v. Springer, 50 Phil. 259 [1927]). The President may not be deprived of, nor be
limited in, the full use of his discretion in the appointment of persons to any public office.
Nothing should so trench upon executive choice as to be, in effect, judicial designation.
10. A word of explanation. If I had resolved not to inhibit myself in this case upon motion filed
by petitioners, it was because the Committee on Judicial Reorganization, of which I was
privileged to be a member, confined its work to the recommendation of options and guidelines
in the task of reorganization. The Committee had no part whatsoever in the drafting of the bill
nor in the public hearings conducted. In fact, some of its recommendations like the
circuitization or regionalization of the Intermediate Appellate Court, the appellation of
members of the Judiciary, the confinement of the jurisdiction of the Intermediate Appellate
Court merely to appellate jurisdiction, the adoption of the system found in the United Kingdom
and in Commonwealth countries of having a Court of general jurisdiction with trial and
appellate divisions, were not availed of in the final Act.
11. Lastly, but by no means the least, I entertain no doubt that reliance can be placed on the
good faith of the President that all the deserving, upon considerations of "efficiency, integrity,
length of service and other relevant factors," shall be appointed to a strengthened and
revitalized judicial system in the interest of public service; that appointments will not be
unduly delayed: and that appointees will be evaluated thoroughly to ensure quality and
impartiality in the men and women who will keep vigil over our judicial ramparts.
ERICTA, J., concurring:chanrob1es virtual 1aw library
I concur in the view that Judiciary reorganization law is not unconstitutional. It does not

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violate the principle of security of tenure of Judges.

The constitution grants to the Batasang Pambansa the power to create courts inferior to the
Supreme Court (Article X, Section 1). All existing inferior courts were created by law. No law is
irrepealable. The power to create an office includes the power to abolish the same. (Urgelio v.
Osmea, 9 SCRA 317; Maza v. Ochave, 20 SCRA 142).chanrobles.com.ph : virtual law library
Security of tenure cannot be invoked when there is no removal of a public officer or employee
but an abolition of his office. (Manalang v. Quitoriano, 94 Phil. 903; Cruz v. Primicias, 23 SCRA
998; Baldoz v. Office of the President, 78 SCRA 354, 362) A distinction should be made
between removal from office and abolition of an office. Removal implies that the office subsists
after ouster, while, in abolition, the office no longer exists thereby terminating the right of the
incumbent to exercise the rights and duties of the office. (Canonigo v. Ramiro, 31 SCRA 278)
The power of the legislative branch of the government to abolish courts inferior to the
Supreme Court has long been established. (Ocampo v. Secretary of Justice, 51 O.G. 147)
What is only needed is that the abolition passes the test of good faith. It need only be shown
that said abolition of the courts is merely incidental to a bona fide reorganization. (Urgelio v.
Osmea, supra)
It is unthinkable to impute bad faith to the Presidential Committee on Judicial Reorganization
composed of four (4) distinguished members of the Supreme Court, the Minister of Justice and
the Deputy Minister of Justice, and to the members of the Batasang Pambansa whose
combined efforts after a careful study and deliberation resulted to the enactment of a bill now
signed into law as Batasang Pambansa Blg. 129. In his sponsorship speech, Justice Ricardo C.
Puno declared the objectives of the Judiciary Reorganization Law to be the following: (1) the
attainment of more efficiency in the disposal of cases; (2) the improvement in the quality of
decisions by the courts that will result from the easing of court dockets; and (3) structural
changes to meet the exigencies of present day Philippine Society and of the foreseeable
future.
Admittedly, in the implementation of the law, some Judges and Justices may be adversely
affected. But in a conflict between public interest and the individual interest of some Judges
and Justices, the public weal must prevail. The welfare of the people is the supreme law.
The implementation of the law will entail appointments to the new courts. The power of
appointment is the exclusive prerogative of the President. The implementation of the law
should be left exclusively to the wisdom, patriotism and statesmanship of the
President.chanrobles lawlibrary : rednad
PLANA, J., concurring and dissenting:chanrob1es virtual 1aw library
As the lawmaking body has the power to create inferior courts and define, prescribe and
apportion their jurisdiction, so it has the power to abolish or replace them with other courts as
long as the act is done in good faith and not for the purpose of attaining an unconstitutional
end. Good faith has thus become the crucial issue in the case at bar.
Upon an examination of the legislative history of Batas Pambansa 129, as has been done in
the main opinion, it is manifest that actual, not merely presumed good faith attended its

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enactment. On this basis, I concur in the opinion penned by the learned Chief Justice, qualified
only by the following observations:chanrob1es virtual 1aw library
1. Executive consultation with the Supreme Court. I believe the President is under no
obligation to consult with the Supreme Court; and the Supreme Court as such is not called
upon to give legal advice to the President. Indeed, as the Supreme Court itself has said, it
cannot give advisory opinions (Bacolod-Murcia Planters Asso., Inc. v. Bacolod-Murcia Milling
Co., 30 SCRA 67; NWSA v. Court of Industrial Relations, 90 SCRA 629) even to the President.
In the drafting of the present Constitution, there was an attempt to vest the Supreme Court
with the function of giving advisory opinions. The framers of the Constitution, however, did not
see fit to adopt the proposal.
If the President should consult the Supreme Court on the implementation of Batas Pambansa
129 and the Supreme Court should give its advice (leaving aside the question of procedure), I
believe the President would be free to follow or disregard the advice; but, in either case, there
would be no guarantee that the implementing action would be upheld in one case or stricken
down in the other.
2. Undue delegation of legislative powers.
The petitioners have also assailed the constitutionality of Batas Pambansa 129 on the ground
that a provision thereof (regarding fixing of compensation and allowances for members of the
Judiciary) constitutes an undue delegation unto the President of legislative power.
As pointed out in the main opinion, the legislature has provided ample standards or guidelines
for the implementation of the delegated power, which makes the delegation inoffensive. I
would like to add however some observations on the doctrine of undue delegation of
legislative power.
Under the old Constitution, when the abiding rule was separation of legislative and executive
powers, there was good reason to maintain the doctrine of non-delegation of legislative power.
Otherwise, the principle of separation of governmental powers could be negated via unbridled
delegation of legislative power. The 1973 Constitution has however radically changed the
constitutional set-up. There is now a commingling or fusion of executive and legislative powers
in the hands of the same group of officials. Cabinet members play a leading role in the
legislative process, and members of the Batasan actively discharge executive functions. The
Prime Minister indeed must come from its ranks. Under the circumstances, there is really not
much sense in rigidly upholding the principle of non-delegation of legislative power, at least
vis-a-vis the Executive Department. In a very real sense, the present Constitution has
significantly eroded the hoary doctrine of non-delegation of legislative power, although it has
retained some provisions of the old Constitution which were predicated on the principle of nondelegation, this time perhaps not so much to authorize shifting of power and thereby
correspondingly reduce the incidence of "undue" delegation of legislative power, as to avert
the abdication thereof.
"In times of war or other national emergency, the Batasang Pambansa may by law authorize
the President for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless sooner

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withdrawn by resolution of the Batasang Pambansa, such powers shall cease upon its next
adjournment." (Art. VIII, Sec. 15.)
"The Batasang Pambansa may by law authorize the President to fix within specified limits, and
subject to such limitations and restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts." [Ibid., Sec. 17(2).]
TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library
Undoubtedly, no more crucial and transcendental issue of such magnitude has confronted the
Philippine judiciary than in the present case. The challenged Act, Batas Pambansa Blg. 129 by
its title would reorganize all existing courts (except the nine-member Sandiganbayan 1 and
the three-member Court of Tax Appeals) and upon declaration by the President of the
completion of the reorganization would unprecedentedly deem all the said courts
"automatically abolished" en masse and "the incumbents thereof shall cease to hold office." 2
The total abolition involves a total of 1,663 judicial positions with 1,180 incumbent judges
(and 483 vacancies) as of January 26, 1982 and the Act would effect an increase of 230
judicial positions raising the total of judicial positions to be filled by new appointments to
1,893. Notwithstanding the great deference due to enactments of the Batasan, I regretably
find myself unable to join the ranks of my esteemed colleagues in the majority who uphold the
constitutionality of the Act and have voted to dismiss the petition, for the following main
considerations and reasons:
1. I go by the ruling of the numerical majority of seven Justices (namely, Pablo, Cesar
Bengzon, Montemayor, Jugo, Bautista, Roberto Concepcion and J.B.L. Reyes, JJ.,) in the
leading 1955 case of Ocampo 3 who fell short by one vote to reach the constitutionally
required 2/3 majority (at the time 8 out of an 11-member Supreme Court) to declare
unconstitutional and invalid Section 3 of Republic Act 1186 abolishing the positions of 18
judges-at-large and 15 cadastral judges and removing or legislating out the incumbent judges
from office as against the contrary vote of a minority of 4 Justices (namely, then Chief Justice
Paras and Padilla, Alex Reyes and Labrador, JJ.,) with the paradoxical situation that the last
three named Justices voted for the validity of the Act as a remedial measure that abolished
said positions without permanent station which subjected them to a rigodon de jueces without
the consent of the Supreme Court, which they considered as "repulsive to an independent
judiciary" and violative of an express prohibitory provision of the 1935 Constitution while
Justice Alex Reyes conceded that otherwise he would go with the majority that "Congress may
not, as a general rule, abolish a judicial post without allowing the incumbent to finish his term
of office."cralaw virtua1aw library
2. As then Associate, later Chief Justice Cesar Bengzon remarked in his separate opinion "
(T)he [adverse] outcome of this litigation [sanctioning the ouster from office of the ten
petitioners who were presiding different Courts of First Instance, some as judges-at-large,
others as cadastral judges, upon the enactment on June 19, 1954 of R.A. 1186 abolishing the
positions of judges-at-large and cadastral judges] is apt to revive the speculation whether
wittingly or unwittingly the Constitution has further weakened the usually weak judicial
department because of its innovative requirement of a 2/3 majority vote of the Supreme
Court to declare a statute unconstitutional, and never in our history has such a number of
judges of first instance [totalling 33 positions] been ousted through judicial reorganization."

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His rationale that the express constitutional guaranty of security of tenure of judges "during
good behavior until they reach the age of seventy years or become incapacitated to discharge
the duties of their office" 4 must prevail over the implied constitutional authority to abolish
courts and to oust the judges despite their constitutionally-secured tenure bears repeating,
thus:jgc:chanrobles.com.ph
"A careful analysis will perceive that whereas petitioners invoke an express guaranty or
positive definition of their term of office, the respondents rely on implied authority to abolish
courts and the positions of the respective judges. Accurately stated, respondents defense
rests on a second inference deduced from such implied power, because they reason out
thusly: Congress has express power to establish courts; therefore it has implicit power to
abolish courts and the positions of judges of such abolished courts (first inference); and
therefore (second inference) Congress likewise has power to eject the judges holding such
positions.
"Resultant juridical situation: The implied authority invoked by respondents collides with the
express guaranty of tenure protecting the petitioners. Which shall prevail? Obviously the
express guaranty must override the implied authority.Implications can never be permitted to
contradict the expressed intent or to defeat its purpose.. . .
x

"But the collision may be-should be-avoided, and both sections given validity, if one be
considered a proviso or exception to the other. In other words, under the Constitution the
Congress may abolish existing courts, provided it does not thereby remove the incumbent
judges; such abolition to take effect upon termination of their incumbency. The fundamental
provisions on the matter are thereby coordinated and harmonized as Justice Laurel suggested
in his concurring opinion in Zandueta v. De la Costa. To bring about the reconciliations is the
great work of jurists. (Cardozo, Paradoxes of Legal Science, p. 6)" 5
3. This reasoning that the express guaranty of tenure protecting incumbent judges during
good behavior unless removed from office after hearing and due process or upon reaching the
compulsory retirement age of seventy years must override the implied authority of removing
by legislation the judges has been further strengthened and placed beyond doubt by the new
provisions of the 1973 Constitution that transferred the administrative supervision over all
courts and their personnel from the Chief Executive through the then Secretary of Justice to
the Supreme Court 6 and vested in the Supreme Court exclusively "the power to discipline
judges of inferior courts and, by a vote of at least eight members, order their dismissa l," 7
which power was formerly lodged by the Judiciary Act in the Chief Executive.
As former Chief Justice Bengzon stressed in his opinion in Ocampo, the 1934 Constitutional
Convention "frowned on removal of judges of first instance through abolition of their offices or
reorganization," citing Professor Jose Aruegos observation that the security of judges tenure
provision was intended to "help secure the independence of the judiciary" in that "during good
behaviour, they may not be legislated out of office by the lawmaking body nor removed by the
Chief Executive for any reason and under the guise of any pretense whatsoever; they may
stay in office until they reach the age of seventy years, or become incapacitated to discharge
the duties of their office. (Aruego, the Framing of the Philippine Constitution, Vol. II, pp. 718-

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719)" He further cited Aruegos report that a proposed amendment to the effect that the
prohibition against transfers of judges to another district without the approval of the Supreme
Court 8 "should not be applicable to a reorganization of tribunals of justice or of districts, but
the amendment was defeated easily without debate" 9 and logically concluded that" (N)ow,
therefore, having vetoed the transfer of judges thru a reorganization, the Convention evidently
could not have permitted the removal of judges thru reorganization." chanroblesvirtuallawlibrary
Now, if the framers of the 1973 Constitution wished to dispel the strong doubts, to say the
least in the light of the 7 to 4 vote in the Ocampo case against removal of incumbent judges
through legislative action by abolition of their courts, then they would have so clearly provided
for such form of removal in the 1973 Constitution, but on the contrary as already stated they
ruled out such removal or ouster of judges by legislative action by vesting exclusively in the
Supreme Court the power of discipline and removal of judges of all inferior courts.
4. This being so, the fundamental point emphasized by former Chief Justice Bengzon that
abolition of the 33 judicial positions in the Ocampo case was "merely an indirect manner of
removing the petitioners-judges" while the "positions [that] were eliminated . . . were in fact
substituted or replaced by other positions of judges" applies with greater force in the case at
bar which involves an unprecendented total "abolition," thus:" (C)all it reorganization, or
legislation or removal or abolition, this law disregards the constitutional assurance that these
judges, once appointed, shall hold office during good behaviour . . . unless incapacitated and
until retirement].
"The abolition of their offices was merely an indirect manner of removing these petitioners.
Remember that on June 19, 1954, there were 107 judges of first instance, district judges,
judges-at-large and cadastral judges (Rep. Act 296). After the passage of Republic Act No.
1186 there were 114 positions of judges of first instance. There was no reduction-there was
increase-in the number of judges, nor in the number of courts. The positions of Judges-atLarge and Cadastral Judges were eliminated; but they were in fact substituted or replaced by
other positions of judges; or if you please, there was a mere change of designation from
Cadastral Judge or Judge-at-Large to district judge. Hence it should be ruled that as their
positions had not been abolished de facto, but actually retained with another name, these
petitioners are entitled to remain in the service. (Brillo v. Enage, G.R. No. L-7115, March 30,
1954.) For it is not permissible to effect the removal of one judge thru the expediency of
abolishing his-office even as the office with same power is created with another name. (Brillo
v. Enage, Malone v. Williams, 118 Tenn. 391, Gibbes Case 4 A.L.R., p. 211) in this view of the
picture, we believe, Congress could have, and should have-as suggested by Secretary Tuazon
during the hearings in Congress-directed in said Republic Act No. 1186 that the present
judges-at-large and cadastral judges shall become district judges presiding such districts as
may be fixed by the President with the consent of the Commission on Appointments; or by
the Secretary of Justice, as originally proposed by Senator Laurel in connection with the same
bill. Something similar was done before, and it would not be objectionable as an encroachment
on the Presidents prerogative of appointment, because such judges had already been
appointed to the judiciary before the passage of the act, and the provision may be construed
in the light of mere change of official designation plus increase in salary."cralaw virtua1aw
library
5. Concededly, the questioned Act effects certain changes and procedural reforms with more

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specific delineation of jurisdiction as mentioned particularly in the majority opinion, but they
do not change the basic structure of the existing courts. The present Municipal Courts,
Municipal Circuit Courts and City Courts are restructured and redesignated as Municipal Trial
Courts and Municipal Circuit Trial Courts and Metropolitan Trial Courts in the challenged Act.
The Courts of First Instance, Circuit Criminal Courts, Juvenile and Domestic Relations Courts
and Courts of Agrarian Relations are all restructured and redesignated to be known by the
common name of Regional Trial Courts with provision for certain branches thereof "to handle
exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land
reform cases .. and/or such other special cases as the Supreme Court may determine in the
interest of a speedy and efficient administration of justice" 10 and the Court of Appeals is
restructured and redesignated as the Intermediate Appellate Court with an increase in the
number of Appellate Justices from the present 45 to 50 but with a reduction of the number of
divisions from 15 (composed of 3 Justices each) to 10 (composed of 5 members each) such
that it is feared that there is created a bottleneck at the appellate level in the important task
discharged by such appellate courts as reviewers of facts.chanrobles virtual lawlibrary
In my view, the "candid admission" by the Chief Justice in his opinion for the Court "that he
entertained doubts as to whether the intermediate court of appeals provided for is a new
tribunal" 10a is equally applicable to all the other abovementioned courts provided for in the
challenged Act as "new courts." And the best proof of this is the plain and simple transitory
provision in Section 44 thereof that upon the Presidents declaration of completion of the
reorganization (whereby the "old courts" shall "be deemed automatically abolished and the
incumbents thereof shall cease to hold office")." (T)he cases pending in the old Courts shall be
transferred to the appropriate Courts constituted pursuant to this Act, together with the
pertinent functions, records, equipment, property and the necessary personnel," together with
the "applicable appropriations." This could not have been possible without a specification and
enumeration of what specific cases of the "old courts" would be transferred to the particular
"new courts," had these "new courts" not been manifestly and substantially the "old courts"
with a change of name-or as described by Justice Barredo to have been his first view, now
discarded, in his separate opinion: "just a renaming, and not a substantial and actual
modification or alteration of the present judicial structure or system" or "a rearrangement or
remodeling of the old structure." 11
6. I do not subscribe to the test of good faith or bad faith in the abolition of the courts and
consequent ouster of the incumbent judges from office as expounded by the late eminent
Justice Jose P. Laurel in his separate concurring opinion in the pre-war case of Zandueta 12
wherein the Court dismissed the petition for quo warranto on the ground of petitioner
Zanduetas estoppel and abandonment of office. 13 Realistically viewed from the basis of the
established legal presumptions of validity and constitutionality of statutes (unless set aside by
a 2/3 majority of 10 members of the Supreme Court) and of good faith in their enactment,
one is hard put to conjure a case where the Court could speculate on the good or bad motives
behind the enactment of the Act without appearing to be imprudent and improper and declare
that "the legislative power of reorganization (is) sought to cloak an unconstitutional and evil
purpose." The good faith in the enactment of the challenged Act must needs be granted. What
must be reconciled is the legislative power to abolish courts as implied from the power to
establish them with the express constitutional guaranty of tenure of the judges which is
essential for a free and independent judiciary. Adherents of the Rule of Law are agreed that
indispensable for the maintenance of the Rule of Law is a free and independent judiciary,
sworn to protect and enforce it without fear or favor "free, not only from graft, corruption,

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ineptness and incompetence but even from the tentacles of interference and insiduous
influence of the political powers that be," to quote again from Justice Barredos separate
concurring opinion. 14 Hence, my adherence to the 7-member majority opinion of former
Chief Justice Bengzon in the Ocampo case, supra, as restated by the Philippine Association of
Law Professors headed by former Chief Justice Roberto Concepcion that "any reorganization
should at least allow the incumbents of the existing courts to remain in office [the appropriate
counterpart new courts] unless they are removed for cause."cralaw virtua1aw library
7. The "judges broader and stronger guarantees of tenure than ordinary civil servants" as
stressed by former Chief Justice Bengzon in his majority opinion in Ocampo is based on the
judiciarys status as a co-equal and coordinate branch of government, whereas the long line of
Philippine cases upholding the legislative power to abolish offices refers to officers or
employees in the executive branch of government and "the underlying consideration must be
borne in mind that Manalang [the aggrieved petitioner] belonged to the Executive Department
and because the President approved the law, no question or encroachment by one branch on
the other could be apprehended or alleged." 15 This is not a matter of personal privilege for
the incumbent judges but as aptly stated by former U.P. Law Dean Irene Cortez in her
memorandum as amicus curiae, "for the judiciary whose independence is not only eroded but
is in grave danger of being completely destroyed." Dean Cortez aptly stressed that "judicial
independence is not a guarantee intended for the Supreme Court alone, it extends to the
entire court system and is even more vital to the courts at the lowest levels because there are
more of them and they operate closest to the people, "and" (P)articularly under the present
form of modified parliamentary government with legislative and executive functions
overlapping and in certain areas merging, the judiciary is left to perform the checking function
in the performance of which its independence assumes an even more vital
importance." chanroblesvirtuallawlibrary
The extensive memoranda filed by Dean Cortez and other amici curiae, such as former
Senator Jose W. Diokno who strongly urges the Court to strike down the Act "to prevent
further destruction of judicial independence," former Senator Lorenzo Sumulong, president of
the Philippine Constitution Association who advocates for the Courts adoption of the Bengzon
majority opinion in the Ocampo case so as to abide by "the elementary rule in the
interpretation of constitutions that effect should be given to all parts of the Constitution" and
that the judges security of tenure guaranty should not be "rendered meaningless and
inoperative" former Solicitor General Arturo A. Alafriz, president of the Philippine Lawyers
Association who submit that the total abolition of all courts below the Supreme Court (except
the Sandiganbayan and the Court of Tax Appeals) and the removal of the incumbent Justices
and Judges "violates the independence of the judiciary, their security of tenure and right to
due process guaranteed them by the Constitution" and Atty. Raul M. Gonzales, president of
the National Bar Association of the Philippines who invokes the Declaration of Delhi at the ICJ
Conference in 1959, that "The principles of unremovability of the Judiciary and their Security
of Tenure until death or until a retiring age fixed by statute is reached, is an important
safeguard of the Rule of Law" have greatly helped in fortifying my views.
8. I had submitted in my memo of September 4, 1980 to the Presidential Committee on
Judicial Reorganization that" (W)hatever reorganization plans the committee may recommend
to meet the worldwide problem of congested court dockets, and to improve judicial services in
the public interest, it should be borne in mind that the members of the judiciary as the
weakest branch of government, yet called upon to safeguard the peoples rights and protect

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them from oppression, official and otherwise, are entitled to security of tenure as guaranteed
by the Constitution. Even though the lower courts may be reshuffled or abolished in the
process, the mandate and spirit of the Constitution guaranteeing their security of tenure and
maintaining the independence of the judiciary should be respected, and they should be
retained in the new courts."cralaw virtua1aw library
In the same vein, Dean Cortez warned of the dire consequences of giving the questioned
provisions of the Act the "absolutist sense which they appear to have at first blush" thus:" (T)o
accept legislative power to abolish courts asserted under Batas Pambansa Blg. 129 which
sweeps through practically the entire judiciary would be to open the door to future court
abolitions in the guise of reorganization. At this stage of our political development, the process
of embarking upon a modified parliamentary system may well usher in a situation where
despite guarantees of judicial tenure, each ruling party in the legislature or any alliance that
can command a majority vote may periodically undertake complete reorganization and remove
judges, thus making of the judiciary a veritable straw in the political wind," and"
(F)uthermore, what can result in the modified parliamentary system from the close working
relationship between executive and legislature is made manifest in Batas Pambansa Blg. 129.
If the sweeping revamp provided were to be carried out the President would appoint all of the
justices and judges of the courts affected and the whole membership in the judiciary from the
highest to the lowest courts would be his appointees. It is relevant to point out that it is
precisely a situation like this that the Constitution seeks to avoid when it provides staggered
terms for the chairman and members of the constitutional commissions which like the
judiciary are guaranteed independence."cralaw virtua1aw library
9. The judges security of tenure was rendered nugatory by the Transitory Provisions of the
1973 Constitution which granted the incumbent President the unlimited power to remove and
replace all judges and officials 16 (as against the limited one-year period for the exercise of
such power granted President Quezon in the 1935 Constitution upon establishment of the
Philippine Commonwealth). Upon the declaration of martial law in September, 1972, justices
and judges of all courts, except the Supreme Court, had been required to hand in their
resignations. There is listed a total of 53 judges who were replaced or whose resignations
were accepted by the President during the period from September, 1972 to April, 1976. The
power to replace even the judges appointed after the effectivity on January 17, 1973 of the
1973 Constitution is yet invoked on behalf of the President in the pending case of Tapucar v.
Famador 17 notwithstanding the generally held view that such post-1973 Constitution
appointed judges are not subject to the Replacement Clause of the cited Transitory Provision.
(In this case, petitioner judge appointed on January 30, 1976 as judge of the Court of First
Instance of Agusan del Norte and Butuan City, Branch I, invoked his constitutional security of
tenure and questioned the appointment extended on February 26, 1980 to respondent to
replace him, although he had not been removed or otherwise dismissed from his position nor
had he resigned thereform. The Court per its March 27, 1980 resolution ordered both to
refrain from discharging the functions of the questioned office.) And now comes this total
abolition of 1,663 judicial positions (and thousands of personnel positions) unprecedented in
its sweep and scope. The urgent need is to strengthen the judiciary with the restoration of the
security of tenure of judges, which is essential for a free and independent judiciary as
mandated by the Constitution, not to make more enfeebled an already feeble judiciary,
possessed neither of the power of the sword nor the purse, as decried by former Chief Justice
Bengzon in his Ocampo majority opinion:jgc:chanrobles.com.ph

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"Shall we have judges of the type of Lord Coke? Or judges, who, in his place, would have
answered Ill do what his majesty pleases, judges who, afraid of ouster thru a judiciary
reshuffle, would rather serve the interest of the party in power or of the political boss, than
the interests of justice?
"As it is, the Judicial Department is feeble enough. Shall we render it feebler with judges
precariously occupying their official seats? Judges performing their duties under the sword of
Damocles of future judicial reorganizations?"
10. The Chief Justice, in his opinion for the Court, equally stressed that "what is equally
apparent is that the strongest ties bind the executive and legislative departments. It is
likewise undeniable that the Batasang Pambansa retains its full authority to enact whatever
legislation may be necessary to carry out national policy as usually formulated in a caucus of
the majority party. It is understandable then why in Fortun v. Labang 18 it was stressed that
with the provision transferring to the Supreme Court administrative supervision over the
Judiciary, there is a greater need to preserve unimpaired the independence of the judiciary,
especially so at present, where to all intents and purposes, there is a fusion between the
executive and the legislative branches," 19 with the further observation that "many are the
ways by which such independence could be eroded." In the cited case of Judge Fortun
(likewise penned by the Chief Justice for the Court), the Court issued a writ of prohibition
andcertiorari ordering the dismissal of the criminal complaint filed with respondent fiscal
Labang by "disgruntled members of the bar with a record of losing cases" in the judges court
and imposed the penalty of censure on each and everyone of the private respondents-lawyers
for the "unseemly haste" with which they filed the criminal complaint, abetted by "the
appearance of sheer vindictiveness or oppressive exercise of state authority." The Court
marked the "violation of the cardinal principles of fairness and due process that underlie the
Rule of Law. Petitioner-Judge was not heard; he was denied the opportunity to defend himself
against the accusation. There was, on the part of private respondents then, a failure to abide
by a Resolution of the Integrated Bar stressing that precisely integration could shield the
judiciary which traditionally cannot defend itself except within its own forum, from the assaults
that politics and self-interest may level at it, and assist it to maintain its integrity, impartiality
and independence," and that such subjection of a judge to public "harassment and humiliation
. . . can diminish public confidence in the courts." chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
11. This brings us to the allegedly underlying need for B.P. Blg. 129 discussed in the course of
committee hearings of Cabinet Bill No. 42 and the deliberation on second reading in the
Batasang Pambansa to rid the judiciary of incompetent and corrupt judges and to restore
confidence in the integrity of the courts. The purge has been the constant subject of headlines
and editorials, with the Ministry of Justices Integrity Council reportedly screening and
conducting "integrity tests" as to new applicants and the incumbent judges 20 and seeking
"confidential information on corrupt and incompetent judges to help the government purge the
judiciary." 21 Prime Minister Cesar Virata was quoted as saying that" there will be a purge of
the corrupt and the misfits when the Judiciary Reorganization Act is signed into law by
President Marcos and implemented in coordination with the Supreme Court." 22 The public
respondents answer sidesteps the issue of such purge contravening the rudiments of a fair
hearing and due process and submits that "no term of office is sacrosanct when demanded
before the altar of the public good." The metropolitan papers reported the "anxiety gripping
the judiciary as the Ministry of Justice has reportedly been asked to collate information on the

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performance of the judges and on the qualifications of those slated to take over the positions
of the incompetent, the inefficient or those involved in irregularities. As stated in an editorial,
Somehow, the uncertainty that now hovers over the judiciary has unduly subjected the judges
to mental torture since they do not know when or whether the axe will fall on them. Worse,
the sword of Damocles hanging over their heads could provoke them into seeking the help of
people claiming to have influence with the powers that be." 23
But Dean Cortez in her memorandum states that "However, nowhere on public record is there
hard evidence on this. The only figures given in the course of the committee hearings were to
the effect that out of some 1,700 members of the judiciary, between 10 to 15 were of the
undesirable category, i.e. misfit, incompetent or corrupt. (Barredo, J., before the Committee
on Justice, Human Rights and Good Government, December 4, 1980)," and that" (I)f this be
the case, the unprecedented, sweeping and wholesale abolition of judicial offices becomes an
arbitrary act, the effect of which is to assert the power to remove all the incumbents guilty or
innocent without due process of law." Nor would it be of any avail to beg the question and
assert that due process is not available in mass abolitions of courts.
Justice Barredo, however, without citing any hard evidence, refers in his separate concurrence
to twin objectives of getting rid of "structural inadequacies of the system or of the
cumbersomeness and technicality-peppered and dragging procedural rules in force" and of "a
good number of those occupying positions in the judiciary (who) make a mockery of justice
and take advantage of their office for personal ends." He adds that "it is my personal
assessment of the present situation in our judiciary that its reorganization has to be of
necessity two-pronged, as l have just indicated, for the most ideal judicial system with the
most perfect procedural rules cannot satisfy the people and the interests of justice unless the
men who hold positions therein possess the character, competence and sense of loyalty that
can guarantee their devotion to duty and absolute impartiality, nay, impregnability to all
temptations of graft and corruption, including the usual importunings and the fearsome albeit
improper pressures of the powers that be," 24 and invokes the adage of "grandes males,
grandes remedios" to now uphold the validity of the Act. Cdphil
Former Senator Diokno in his memorandum anticipates the argument that "great ills demand
drastic cures" thus: "Drastic, yes but not unfair nor unconstitutional. One does not improve
courts by abolishing them, any more than a doctor cures a patient by killing him. The ills the
judiciary suffers from were caused by impairing its independence; they will not be cured by
totally destroying that independence. To adopt such a course could only breed more perversity
in the administration of justice, just as the abuses of martial rule have bred more
subversion."cralaw virtua1aw library
12. Finally, as stated by the 1975 Integrated Bar of the Philippines 2nd House of Delegates, "It
would, indeed, be most ironical if Judges who are called upon to give due process cannot
count it on themselves. Observance of procedural due process in the separation of misfits from
the Judiciary is the right way to attain a laudable objective."cralaw virtua1aw library
As stressed by the Chief Justice in the Fortun case, judges are entitled to the cardinal
principles of fairness and due process and the opportunity to be heard and defend themselves
against the accusations made against them and not to be subjected to harassment and
humiliation, and the Court will repudiate the "oppressive exercise of legal authority." More so,
are judges entitled to such due process when what is at stake is their constitutionally

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guaranteed security of tenure and non-impairment of the independence of the judiciary and
the proper exercise of the constitutional power exclusively vested in the Supreme Court to
discipline and remove judges after fair hearing.
In sum, I see no reason to change the stand submitted by me to the Presidential Committee
on Judicial Reorganization that
Judges of inferior courts should not be summarily removed and branded for life in such
reorganization on the basis of confidential adverse reports as to their performance,
competence or integrity, save those who may voluntarily resign from office upon being
confronted with such reports against them. The trouble with such ex-parte reports, without
due process or hearing, has been proven from our past experience where a number of honest
and competent judges were summarily removed while others who were generally believed to
be basket cases have remained in the service; and
The power of discipline and dismissal of judges of all inferior courts, from the Court of Appeals
down, has been vested by the 1973 Constitution in the Supreme Court, and if the judiciary is
to be strengthened, it should be left to clean its own house upon complaint and with the
cooperation of the aggrieved parties and after due process and
hearing.chanroblesvirtuallawlibrary
The constitutional confrontation and conflict may well be avoided by holding that since the
changes and provisions of the challenged Act do not substantially change the nature and
functions of the "new courts" therein provided as compared to the "abolished old courts" but
provide for procedural changes, fixed delineation of jurisdiction and increases in the number of
courts for a more effective and efficient disposition of court cases, the incumbent judges
guaranteed security of tenure require that they be retained in the corresponding "new
courts."cralaw virtua1aw library
Endnotes:

1. Article X, Section 1, first sentence of the Constitution reads: "The judicial power shall be
vested in one Supreme Court and in such inferior courts as may be established by law."cralaw
virtua1aw library
2. Cf. Borromeo v. Mariano, 41 Phil. 322 (1921) and People v. Vera, 65 Phil. 56 (1937).
3. Article X, Section 7 of the Constitution.
4. It may be mentioned in passing that petitioners ignored the fact that an action for
declaratory relief should be filed in a Court of First Instance and apparently are unaware that
there is no such proceeding known in constitutional law to declare an act unconstitutional. So
it has been authoritatively ruled even prior to the 1935 Constitution, and much more so after
its effectivity and that of the present Constitution. That is the concept of judicial review as
known in the Philippines, a principle that goes back to the epochal decision of Chief Justice
Marshall in Marbury v. Madison, 1 Cranch 137 (1803). This court, then, as do lower courts,
has the duty and the power to declare an act unconstitutional but only as an incident to its

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function of deciding cases. Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); People v.
Vera, 65 Phil. 56 (1937).
5. Gualberto J. de la Llana is the Presiding Judge of Branch II of the City Court of Olongapo.
The other petitioners are all members of the Philippine bar.
6. He was assisted by Assistant Solicitor General Reynato S. Puno.
7. The amici curiae who argued were Senator Lorenzo Sumulong, President, Philippine
Constitution Association; Dean Irene Cortes, former Dean, U.P. College of Law; Atty. Bellaflor
Angara Castillo, President, U.P. Women Lawyers Circle; Atty. Paz Veto Planas, President,
Women Lawyers Association; Atty. Raul Roco, Executive Vice-President, Integrated Bar of the
Philippines; Atty. Enrique Syguia, President, Philippine Bar Association; Atty. Rafael G. Suntay,
for the Trial Lawyers Association; and Senator Jose W. Diokno submitted memoranda. Atty.
Raul Gonzales entered his appearance for petitioner and argued by way of rebuttal. Atty.
Ambrosio Padilla likewise submitted a memorandum, which the Court allowed to stay in the
records.
8. 65 Phil. 56 (1937).
9. Ibid, 89.
10. L-40004, January 31, 1975, 62 SCRA 275.
11. Ibid., 308.
12. Executive Order No. 611. The writer of this opinion was designated as Chairman, and
Minister Ricardo C. Puno as Co-Chairman. Two members of the Court, Justices Ramon C.
Aquino and Ameurfina A. Melencio-Herrera, as well as a former member, retired Justice Felix
Q. Antonio, were named to such body. Deputy Minister of Justice Jesus Borromeo completed
the membership.
13. Executive Order No. 619-A.
14. Report of the Committee on Judicial Reorganization, 5-6.
15. Ibid, 7.
16. Ibid, citing the Presidents foreword to The Philippine Development Plan, 2.
17. Ibid.
18. Ibid, 8. The last sentence of this portion of the Report reads: "That is to achieve the
democratization and humanization of justice in what has been felicitously referred to by the
First Lady as a compassionate society."
19. Ibid, 8-9.
20. Ibid, 9-10.

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21. Ibid, 10.

22. Ibid.
23. Act No. 136. Cf. Act No. 2347 and 4007.
24. Commonwealth Act No. 3.
25. Ibid, Sec. 3, Under Commonwealth Act No. 259, the membership of the Court of Appeals
was increased to fifteen, with one Presiding Justice and fourteen Associate Justices. Three
divisions were created, five members in each division. The Act was approved on April 7, 1938.
In 1945 after the liberation of the Philippines, it was abolished by Executive Order No. 37 of
President Sergio Osmea exercising his emergency power under Commonwealth Act No. 671.
It was established anew under Republic 52, which took effect on October 4, 1946.
26. Republic Act No. 296.
27. Section 53 of this Act provided: "In addition to the District Judges mentioned in Section
forty-nine hereof, there shall also be appointed eighteen Judges-at-large and fifteen Cadastral
Judges who shall not be assigned permanently to any judicial district; and who shall render
duty in such district or province as may from time to time, be designated by the Department
Head." This Section was repealed by Republic Act No. 1186 (1954).
28. Cf. Republic Act No. 520 (1968) and Presidential Decree No. 289 (1973).
29. Presidential Decree No. 1482.
30. Republic Act No. 1125 (1954).
31. Republic Act No. 1267. It was amended by Presidential Decree No. 946 (1976).
32. Republic Act No. 1404. Subsequently, two more branches were added under Presidential
Decree No. 1439 (1978).
33. Republic Act Nos. 4834 and 4836. In 1978, there was a Presidential Decree providing for
Juvenile and Domestic Relations Courts in thirteen provinces and twenty-seven other cities.
34. Republic Act No. 5179.
35. Explanatory Note, 5-6.
36. Sponsorship Speech of Minister Puno, Volume Four, Third Regular Session, 1980-81, 2013.
37. Ibid.
38. L-28573, June 13, 1968, 23 SCRA 998.
39. Ibid, 1003. Prior to such decision, the following cases had reaffirmed such a principle

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Manalang v. Quitoriano, 94 Phil. 903 (1954); Rodriguez v. Montinola, 94 Phil. 964 (1954);
Gacho v. Osmea Jr., 103 Phil. 837 (1958); Briones v. Osmea Jr., 105 Phil 588 (1958);
Cuneta v. Court of Appeals, 111 Phil. 249 (1961); Facundo v. Hon. Pabalan, 114 Phil. 307
(1962), Alipio v. Rodriguez, 119 Phil. 59 (1963); Llanto v. Dimaporo, 123 Phil. 413 (1966);
Ocampo v. Duque, 123 Phil. 842 (1966); Guillergan v. Ganzon, 123 Phil. 1102 (1966);
Abanilla v. Ticao, L-22271, July 26, 1966, 17 SCRA 652; Cario v. ACCFA, L-19808, Sept. 29,
1966, 18 SCRA 183; De la Maza v. Ochave, L-22336, May 23, 1967, 20 SCRA 142, Arao v.
Luspo, L-23982, July 21, 1967, 20 SCRA 722.
40. L-28614, January 17, 1974, 55 SCRA 34.
41. Enciso v. Remo, L-23670, September 30, 1969, 29 SCRA 580; Roque v. Ericta, L-30244,
September 28, 1973, 53 SCRA 156. Cf. City of Basilan v. Hechanova, L-23841, August 30,
1974, 58 SCRA 711.
42. 66 Phil. 615 (1938).
43. Commonwealth Act No. 145.
44. Ibid, 626.
45. Ibid, 626-627.
46. It likewise abolished the Court of Land Registration (1914).
47. 1932.
48. 66 Phil. 615, 626.
49. Batas Pambansa Blg. 129, Sections 3-12. It may be stated that the writer of this opinion
as the Chairman of the Committee on Reorganization, was for the establishment either of (1)
a court of general jurisdiction with an appellate as well as a trial division patterned after that
of the system of judicature found in the United Kingdom and in many Commonwealth
countries or, in the alternative, (2) of a circuit court of appeals. The Committee accepted such
proposals and incorporated them in the guidelines. Candor compels the admission that he
entertained doubts as to whether the intermediate court of appeals provided for is a new
tribunal. It could be considered though as part of an integrated scheme for the judicial
reorganization as contemplated by the Batasang Pambansa.
50. Ibid, Sections 13-24.
51. Ibid, Section 27.
52. Ibid, Section 28.
53. Ibid, Section 29.
54. Ibid, Section 30.

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55. Ibid, Section 31.

56. 94 Phil. 732 (1954).
57. Ibid, 734-735.
58. Ibid, 735.
59. According to Batas Pambansa Blg. 129, Section 2: "The reorganization herein provided
shall include the Court of Appeals, the Courts of First Instance, the Circuit Criminal Courts, the
Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the
Municipal Courts, and the Municipal Circuit Courts."cralaw virtua1aw library
60. Ibid, Section 44. Its last sentence reads: "The cases pending in the old Courts shall be
transferred to the appropriate Courts constituted pursuant to this Act, together with the
pertinent functions, records, equipment, property and the necessary personnel."cralaw
virtua1aw library
61. Hayden, The Philippines 67 (1945).
62. 67 Phil. 62 (1939).
63. 63 Phil. 139.
64. Ibid, 156.
65. Article VII, Section 1 of the 1973 Constitution.
66. Section 16 of Article VII of the 1973 Constitution reads as follows: "All powers vested in
the President of the Philippines under the 1935 Constitution and the laws of the land which are
not herein provided for or conferred upon any official shall be deemed and are hereby vested
in the President unless the Batasang Pambansa provides otherwise."cralaw virtua1aw library
67. Section 1, Article VII of the 1935 Constitution.
68. Article VII, Section 1 of the Constitution, in its original form.
69. According to Article IX, Section 1 of the 1973 Constitution prior to its being amended last
year: "The Executive power shall be exercised by the Prime Minister with the assistance of the
Cabinet. The Cabinet, headed by the Prime Minister, shall consist of the heads of ministries as
provided by law. The Prime Minister shall be the head of the Government."cralaw virtua1aw
library
70. G.R. No. 58184, October 30, 1981.
71. Ibid, 4. That characterization is in accordance with the Anglo-American concept of the
distinction between presidential and parliamentary systems. In the work of President Marcos
entitled, Marcos: Notes for the Cancun Summit 1981, the Conference appears to have adopted
such a distinction. Countries with the presidential systems sent their presidents: C. Bendjedid

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of Algeria; A. Sattar of Bangladesh; J.B. de Oliviera Figuereido of Brazil; F. Mitterand of

France; A. Cheng of Guyana; H. Boigny of Ivory Coast; Lopez Portillo of Mexico; A.S. Shagari
of Nigeria; Ferdinand E. Marcos of the Philippines; J.K. Nyerere of Tanzania; R. Reagan of the
United States; L. Herrera Campins of Venezuela; S. Kraigher of Yugoslavia. Likewise, countries
under the parliamentary system sent their Prime Ministers: P.E. Trudeau of Canada; Zhao
Ziyang of China; M.H. Thatcher of the United Kingdom; I. Gandhi of India; Z. Zuzuki of Japan;
N.O.T. Falldin of Sweden. While called Chancellors, B. Kreisky of Austria and H. Schmidt of
Germany hold such a position. Crown Prince Fahd Bin Abdul Aziz of Saudi Arabia does not fall
under either category.
72. Article IX, Sections 1 and 3 of the amended Constitution. Section 3 reads in full: "There
shall be an Executive Committee to be designated by the President, composed of the Prime
Minister as Chairman, and not more than fourteen other members, at least half of whom shall
be Members of the Batasang Pambansa. The Executive Committee shall assist the President in
the exercise of his powers and functions and in the performance of his duties as he may
prescribe."cralaw virtua1aw library
73. L-38383, May 27, 1981, 104 SCRA 607.
74. Ibid, 615.
75. Article X, Section 6, provides: "The Supreme Court shall have administrative supervision
over all courts and the personnel thereof."cralaw virtua1aw library
76. Article X, Section 7.
77. According to Section 67 of the Judiciary Act of 1948, as amended: "No District Judge shall
be separated or removed from office by the President of the Philippines unless sufficient cause
shall exist, in the judgment of the Supreme Court, involving serious misconduct or inefficiency,
for the removal of said judge from office after the proper proceedings." Cf. Section 97 as to
removal of municipal judges also by the President. Cf. People v. Linsangan, 62 Phil. 646
(1935); De los Santos v. Mallare, 87 Phil. 289 (1950); Martinez v. Morfe, L-34022, March 24,
1972, 44 SCRA 22, and Pamil v. Teleron, L-34854, November 20, 1978, 86 SCRA 413.
78. Cf. Ginsburg, Judicial Repair of Legislation, 28 Cleveland State Law Review, 301-304
(1979).
79. G.R. Nos. 50581-50617, January 30, 1982.
80. Ibid, 12.
81. Section 7, Presidential Decree No. 537 (1974).
82. Taada v. Cuenco 103 Phil. 1051 (1957) lends itself to the view that in the interpretation
of the fundamental law, the literal language is not necessarily controlling, if thereby a
constitutional objection could be plausibly raised.
83. The memoranda submitted by the Integrated Bar of the Philippines, the Philippine Bar
Association, the Women Lawyers Association of the Philippines, the U.P. Women Lawyers

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Circle, the Philippine Women Lawyers Association, and the Philippine Trial Lawyers Association
of the Philippines were for dismissing the petition. The Philippine Lawyers Association was for
granting the petition. Amicus curiae Lorenzo Sumulong, President of the Philippine
Constitution Association, speaking on his own behalf, was of a similar mind. Amicus curiae
Dean Irene Cortes, former Dean of the U.P. College of Law, was for dismissing the petition,
while amicus curiae Jose W. Diokno was for granting it. A memorandum allowed to stay in the
records by former Senator Ambrosio Padilla was for granting it. The Court acknowledges the
aid it received from the memoranda submitted.
84. 63 Phil. 139, 157 (1936).
85. Planas v. Gil, 67 Phil. 62, 73-74 (1939). The quotation from Justice Holmes came from
Springer v. Government of the Philippine Islands, 277 US 189, 211 (1928). He and Justice
Brandeis dissented, upholding the contention of the Filipino leaders that the President of the
Senate and the Speaker of the House of Represented of the then Philippine Legislature could
sit in a Board of Control with power to vote government shares in corporations owned or
controlled by it. The majority sustained the opposite view, thus giving the then American
Governor-General such prerogative.
86. Arnault v. Pecson, 87 Phil. 418, 426 (1950).
87. Chapter IV, Sec. 41 of Batas Pambansa Blg. 129.
88. L-32096, October 24, 1970, 35 SCRA 481. Cf. Agustin v. Edu, L-49112, February 2, 1979,
88 SCRA 195.
89. Ibid, 497.
90. G.R. No. 58184, October 30, 1981, 10.
91. Ibid, 11.
92. Ibid.
93. Batas Pambansa Blg. 129, section 43.
94. Ibid, Section 44.
95. Article VII, Section 16 of the Amended Constitution provides: "All powers vested in the
President of the Philippines under the 1935 Constitution and the laws of the land which are not
herein provided for or conferred upon any official shall be deemed and are hereby vested in
the President unless the Batasang Pambansa provides otherwise." Article VII, Section 10, par.
(1) of the Constitution reads: "The President shall have control of all the executive
departments, bureaus, or offices, exercise general supervision over all local governments as
may be provided by law, and take care that the laws be faithfully executed."cralaw virtua1aw
library
96. Batas Pambansa Blg. 129, Section 44.

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97. This Court is ready with such a list to be furnished the President.
98. In the language of par. XI of the Proposed Guidelines for Judicial Reorganization: "The
services of those not separated shall be deemed uninterrupted. In such cases, efficiency,
integrity, length of service and other relevant factors shall be considered."cralaw virtua1aw
library
99. Cf. Roschen v. Ward, 279 US 337, 339 (1929).
100. From the standpoint of the writer of this opinion, as earlier noted, the assailed legislation
did not go far enough. It is certainly much more, to use the Lasswellian phrase of being a
"reverent modification of small particulars." For some it could be characterized as a dose of
conservation and a dash or innovation. That is, however, no argument against its validity
which, to repeat, is solely a question of power as far as this Court is concerned.
101. Former Senators Salvador H. Laurel and Jose W. Diokno.
102. Fish, William Howard Taft and Charles Evan Hughes, 1975 Supreme Court Review 123.
103. Ibid. Cf. Bickel, Mr. Taft Rehabilitates the Court, 79 Yale Law Journal 1 (1969).
104. Article XIII, Section 1, first sentence of the Constitution reads: "Public office is a public
trust."cralaw virtua1aw library
105. 57 O.G. 147 (1955).
106. Ibid. 153. The per curiam minute resolution of the Court reads as follows: "In Ocampo
Et. Al. v. The Secretary of Justice Et. Al., G.R. No. L-7910, the petition was denied, without
costs, due to insufficient votes to invalidate Section 3 of Republic Act No. 1186. Chief Justice
Paras, and Justices Padilla, Reyes (A) and Labrador voted to uphold that particular section;
Justices Pablo, Bengzon, Montemayor, Hugo, Bautista, Concepcion and Reyes, J.B.L., believe it
is unconstitutional." At 147, Republic Act No. 1186, which took effect on June 19,1954,
abolished the positions of Judges-at-Large and Cadastral Judges. There was a vigorous dissent
from Justice Bengzon relying on certain American State Supreme Court decisions notably from
Indiana and Pennsylvania, but as noted in the opinion of Justice Labrador, they could not be
considered as applicable in view of the difference in constitutional provisions. From Justices
Montemayor and Bautista also came separate opinions as to its unconstitutionality.
107. 41 Phil. 322 (1921).
108. Ibid, 333.
109. 57 Phil. 600 (1932).
110. Ibid, 605. The reference should now be to the Constitution, rather than an Organic Act of
an unincorporated American territory as the Philippines then was.
BARREDO, J., concurring:chanrob1es virtual 1aw library

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1. And I am not fond of borrowing ideas from supposed legal acumen of alien judicial figures
no matter their recognized reputation.
2. Borromeo v. Mariano, 41 Phil. 330.
3. G.R. No. L-7910, January 18, 1955, 51 O.G. 147.
4. Zandueta v. De la Cuesta, 66 Phil. 615.
5. Brillo v. Mejia, 94 Phil. 732.
GUERRERO, J., concurring:chanrob1es virtual 1aw library
1. See Cardozo, The Nature of the Judicial Process, p. 73.
2. Church of the Holy Trinity v. U.S., 143 U.S. 457, cited in Willoughby On the Constitution of
the United States, 2nd ed., Vol. 1, p. 61.
3. Explanatory Note, Cabinet Bill No. 42 which became Batas Pambansa Blg. 129, The
Judiciary Reorganization Act of 1980.
4. Cardozo, The Nature of the Judicial Process, p. 66.
5. Chief Justice Castro, The Bar and the Congested Dockets, p. 5.
6. See Report of the Presidential Committee on Judicial Reorganization. Also Report of Court
Administrator.
7. See L-37399, May 29, 1974, 57 SCRA 123.
8. See L-30355, May 31, 1978, 83 SCRA 437, 450.
9. See L-46542, July 21, 1975, 84 SCRA 198, 203.
10. See L-49995, April 8, 1981.
11. See G.R. No. 54452, July 20, 1981.
12. See L-36161, December 19, 1973.
13. Rule 131, Section 5(m), Revised Rules of Court.
14. 31 C.J.S. 810.
15. Cruz v. Primicias, Jr., L-28573, June 13, 1968, 23 SCRA 998; Bendanillo, Sr. v. Provincial
Governor, L-28614, January 17, 1974, 55 SCRA 34; Enciso v. Remo, L-23670, Sept. 30, 1969,
29 SCRA 580; Roque v. Ericta, L-30244, Sept. 28, 1973, 53 SCRA 156.
16. Morfe v. Mutuc, L-20387, Jan. 31, 1968, 22 SCRA 424, 450.

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17. Ibid.
18. Chief Justice Fernando, The Constitution of the Philippines, p. 48.
19. Ibid., p. 46.
20. Journal of the Batasan, Third Regular Session, Feb. 3, 1981, p. 12.
21. Brown v. Russel, 166 Mass. 14, cited in Gonzales, Administrative Law, Law on Public
Officers and Election Law, 2nd ed., p. 148.
22. 42 Am. Jur. 881.
23. Ibid.
24. Cherokee, County v. Savage, 32 So. 2nd 803.
25. McCulley v. State. 53 S.W. 134.
26. Answer of Solicitor General, par. 22, p. 29.
27. Laurel, con., Zandueta v. de la Cuesta (1938), 66 Phil. 615.
28. Missouri, K. & T. Co. v. May, 194 U.S. 267, 270; People v. Crane, 214 N.Y. 154, 173, cited
in Cardozo, The Nature of the Judicial Process, p. 90.
29. People v. Vera (1937), 65 Phil. 56, See Chief Justice Fernando, The Power of Judicial
Review p. 110.
DE CASTRO, J., concurring:chanrob1es virtual 1aw library
1. Constitution of the Philippines by Chief Justice Enrique M. Fernando, 1977 Edition, p. 177.
2. Roque v. Ericta, 53 SCRA 156; Abanilla v. Ticao, 17 SCRA 652; Cruz v. Primicias, Jr., 23
SCRA 998; Ocampo v. Duque, 16 SCRA 962; Briones v. Osmea, 104 Phil. 588; Urgelio v.
Osmea, Jr., 9 SCRA 317; Gacho v. Osmea, 34 Phil. 208.
3. Delivered on Law Day, September 19, 1981 before the Philippine Bar Association.
4. Cf. G R. No. 58184, Free Telephone Workers Union v. The Honorable Minister of Labor and
Employment, promulgated on October 30, 1981.
5. Ocampo v. Secretary of Justice, 50 O.G. 147.
TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library
1. With three vacancies.

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2. Section 44, B.P. Blg. 129.

3. Ocampo v. Secretary of Justice, G.R. No. L-1790, Jan. 18, 1955; 51 O.G. 147.
4. Art. X, section 7, 1973 Constitution, as amended (Art. VIII, Sec. 9, 1935 Constitution).
5. Cited in Chief Justice Fernandos The Constitution, p. 376; emphasis copied.
6. Art. X, Sec. 6, 1973 Constitution.
7. Idem. Art. X, Sec. 7.
8. Art. VIII, Sec. 7, 1935 Constitution.
9. Aruego, Framing of the Phil. Constitution, Vol. I, p. 513.
10. Sec. 23, B.P. Blg. 129.
10-a. At p. 16, fn. 50.
11. At p. 3 thereof.
12. Zandueta v. De la Costa, 66 Phil. 615 (1935).
13. See the Chief Justice opinion, pp. 14-15.
14. At p. 8 thereof.
15. Citing Manalang v. Quitoriano, 50 O.G. 2515.
16. Art. XVII, Sec. 9-10.
17. G.R. No. 53467 filed on March 27, 1980.
18. 104 SCRA 607 (March 27, 1981).
19. Main opinion at p. 21.
20. Phil. Daily Express issue of Aug. 24, 1981.
21. Times Journal issue of Aug. 16, 1981.
22. Evening Post issue of Aug. 11, 1981.
23. Metropolitan papers of Aug. 8, 1980. Times Journal editorial of Aug. 31, 1980.
24. At p. 5.

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EN BANC
[G.R. No. L-78946. April 15, 1988.]
DR. NENITA PALMA-FERNANDEZ, Petitioner, v. DR. ADRIANO DE LA PAZ, DR.
SOSEPATRO AGUILA, and THE SECRETARY OF HEALTH, Respondents.
Oscar C. Fernandez for Petitioner.
The Solicitor General for Respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; DEPARTMENT OF HEALTH; POWER TO APPOINT OR REMOVE
OFFICERS AND EMPLOYEES OF HOSPITAL ATTACHED WITH NATIONAL HEALTH FACILITIES,
VESTED WITH THE SECRETARY OF HEALTH. Since the East Avenue Medical Center is one of
the National Health Facilities attached to the Department of Health, the power to appoint and
remove subordinate officers and employees, like petitioner, is vested in the Secretary of
Health, not the Medical Center Chief The latters function is confined to recommendation.
(Section 79 (D) of the Revised Administrative Code)
2. ID.; ID.; ID.; INCLUDES POWER TO TRANSFER. Respondent Medical Center Chiefs
argument that petitioner was not appointed but was merely transferred in the interest of the
public service to the Research Office pursuant to Section 24 (c) of Presidential Decree No. 807,
or the Civil Service Decree of the Philippines will not alter the situation. Even a transfer
requires an appointment, which is beyond the authority of respondent Medical Center Chief to
extend, supra.
3. ID.; LAW ON PUBLIC OFFICERS; TRANSFER WITHOUT CONSENT, TANTAMOUNT TO
REMOVAL WITHOUT CAUSE. The transfer without petitioners consent, was tantamount to
removal without valid cause, and as such is invalid and without any legal effect (Garcia, Et. Al.
v. Lejano, Et Al., 109 Phil. 116). A removal without cause is violative of the Constitutional
guarantee that "no officer or employee of the civil service shall be removed or suspended
except for cause provided by law" (Article IX, B, Section 2(3), 1987 Constitution).
4. ID.; ID.; HOLD-OVER CAPACITY, TERMINATED BY EFFECTIVITY OF THE 1987
CONSTITUTION. The occupancy of a position in a hold-over capacity was conceived to
facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional
Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective
(De Leon, Et. Al. v. Hon. Benjamin B. Esquerra, Et Al., G.R. No. 78059, 31 August 1987). After
the said date the provisions of the latter on security of tenure govern.
5. REMEDIAL LAW; SPECIAL CIVIL ACTION; QUO WARRANTO; PROPER REMEDY WHEN THERE
IS USURPATION OF OFFICE. Where there is usurpation or intrusion into an office, quo
warranto is the proper remedy. (Lota v. Court of Appeals, No. L-14803, June 30, 1961, 2
SCRA 715).

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6. ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDIES; EXCEPTIONS.

The doctrine on exhaustion of administrative remedies does not preclude petitioner from
seeking judicial relief. This rule is not a hard and fast one but admits of exceptions among
which are that (1) the question in dispute is "purely a legal one" and (2) the controverted act
is patently illegal" (Carino v. ACCFA, No. L-19808, September 29, 1966, 18 SCRA 183).
7. ID.; ID.; ID.; CASE AT BAR. The questions involved here are purely legal. The subject
Hospital Orders violated petitioners constitutional right to security of tenure and were,
therefore, "patently illegal." Judicial intervention was called for to enjoin the implementation of
the controverted acts.
8. REMEDIAL LAW; SPECIAL CIVIL ACTION; QUO WARRANTO; ONE YEAR PERIOD NOT
SUSPENDED BY PENDENCY OF ADMINISTRATIVE REMEDIES. An action for quo warranto
must be filed within one year after the cause of action accrues (Sec. 16, Rule 66, Rules of
Court), and the pendency of administrative remedies does not operate to suspend the running
of the one-year period (Cornejo v. Secretary of Justice L-32818, June 24, 1974, 57 SCRA
663).
DECISION
MELENCIO-HERRERA, J.:
This is a Petition for Quo Warranto filed by petitioner, Dr. Nenita Palma-Fernandez, claiming
entitlement to the position of Assistant Director for Professional Services at the East Avenue
Medical Center (formerly Hospital ng Bagong Lipunan) alleged to be unlawfully held by private
respondent, Dr. Sosepatro Aguila.
The background facts follow:chanrob1es virtual 1aw library
On 1 May 1985, petitioner was extended a permanent appointment to the position of Chief of
Clinics at the Hospital ng Bagong Lipunan (now East Avenue Medical Center) by then Minister
of Health and Chairman of the Board of Governors of the Center, Jesus C. Azurin.
Previous to this appointment, Petitioner, a career physician, occupied the positions of Medical
Specialist I in 1978, Medical Specialist II from October 1982 to April 1985, until her
appointment as Chief of Clinics on 1 May 1985 . Even during her incumbency as Medical
Specialist II, petitioner was already designated as Acting Chief of Clinics since September
1983 up to her permanent appointment to said position.
As Chief of Clinics, petitioner exercised direct control and supervision over all heads of
departments in the Medical Center.
In 1986, the new organizational structure of the Center retitled the position of Chief of Clinics
to Assistant Director for Professional Services. In partial implementation of this new set-up,
respondent Dr. Adriano de la Paz, as Medical Center Chief, issued Hospital Order No. 30,
Series of 1986, on 8 August 1986, designating petitioner as Assistant Director of Professional

Page 182 of 492

Services (Annex 3, Comment, p. 48, Rollo). As such, she continued to exercise direct control
and supervision over all heads of departments in the Medical Center.
On 30 January 1987, Executive Order No. 119 known as the "Reorganization Act of the
Ministry of Health" was promulgated.
On 29 May 1987, respondent De la Paz, as Medical Center Chief, designated respondent Dr.
Aguila, who was then Medical Specialist I, as Assistant Director for Professional Services "vice
Dr. Nenita Palma-Fernandez, who will be transferred to the Research Office." (Hospital Order
No. 21, series of 1987, Annex B, Petition). Said order was purportedly issued "in the interest
of the hospital service."cralaw virtua1aw library
On the same date, Hospital Order No. 22, series of 1987, (Annex C, Petition), was issued by
respondent De la Paz, whereby petitioner was relieved "of her present duties and
responsibilities as Chief of Clinic and hereby transferred to the Research Office. This order
being issued in the interest of the hospital service."cralaw virtua1aw library
Upon receipt of Hospital Order No. 22, petitioner filed on 1 June 1987 a letter-protest with
respondent Secretary of Health, furnishing copies to respondents De la Paz and Aguila, as well
as to the Commissioner of Civil Service and the Chairman of the Government Reorganization
Commission.chanroblesvirtualawlibrary
Failing to secure any action on her protest within a months time, petitioner filed on 8 July
1987 the instant Petition for Quo Warranto with Preliminary Injunction against respondents Dr.
de la Paz, Dr. Aguila, and the Secretary of Health.
On 14 July 1987, this Court issued a Temporary Restraining Order enjoining the
implementation of Hospital Orders Nos. 21 and 22, series of 1987.
After considering and deliberating on all Comments, the Reply, and the Rejoinder of the
Solicitor General to said Reply, the Court, on 17 March 1988, Resolved to give due course to
the Petition, and dispensing with memoranda, declared the case submitted for resolution.
The Solicitor General has aptly framed the issues for resolution as follows:chanrob1es virtual
1aw library
1. Whether or not respondent De la Paz has the power or authority to issue the two Hospital
Orders in question;
2. Whether or not petitioner has a valid cause of action; and
3. Whether or not the rule on exhaustion of administrative remedies precludes the filing of the
instant Petition.
The Solicitor General, on behalf of the Secretary of Health, makes common cause with
petitioner and answers the first and third issues in the negative, and the second in the
affirmative. For their part, Respondents De la Paz and Aguila uphold the opposite views.
We rule for Petitioner.

Page 183 of 492

1. Since the East Avenue Medical Center is one of the National Health Facilities attached to the
Department of Health, the power to appoint and remove subordinate officers and employees,
like petitioner, is vested in the Secretary of Health, not the Medical Center Chief The latters
function is confined to recommendation. Thus,. Section 79 (D) of the Revised Administrative
Code provides:jgc:chanrobles.com.ph
"Section 79 (D). Power to appoint and remove. The Department Head, upon the
recommendation of the Chief of the bureau or office concerned, shall appoint all subordinate
officers and employees whose appointment is not expressly vested by law in the President of
the Philippines, and may remove or punish them, except as especially provided otherwise, in
accordance with the Civil Service Law. . . .
"The Department Head also may, from time to time, in the interest of the service, change the
distribution among the several bureaus and offices of his Department of the employees or
subordinates authorized by law."cralaw virtua1aw library
Executive Order No. 119, or the Reorganization Act of the Ministry of Health, likewise
states:jgc:chanrobles.com.ph
"SEC. 26. New Structure and Pattern. . . .
"The new position structure and staffing pattern of the Ministry shall be prescribed by the
Minister within one hundred twenty (120) days from the approval of this executive order
subject to approval by the Office of Compensation and Classification and the authorized
positions created thereunder shall be filled thereafter with regular appointments by him or the
President, as the case may be as herein provided. . . ."cralaw virtua1aw library
Respondent Medical Center Chiefs argument that petitioner was not appointed but was merely
transferred in the interest of the public service to the Research Office pursuant to Section 24
(c) of Presidential Decree No. 807, or the Civil Service Decree of the Philippines 1 will not alter
the situation. Even a transfer requires an appointment, which is beyond the authority of
respondent Medical Center Chief to extend, supra. Besides, the transfer was without
petitioners consent, was tantamount to removal without valid cause, and as such is invalid
and without any legal effect (Garcia, Et. Al. v. Lejano, Et Al., 109 Phil. 116). A removal without
cause is violative of the Constitutional guarantee that "no officer or employee of the civil
service shall be removed or suspended except for cause provided by law" (Article IX, B,
Section 2(3), 1987 Constitution).
Petitioners "designation" as Assistant Director for Professional Services on 8 August 1986 in
accordance with the organizational structure of the Department of Health under Hospital Order
No. 30, Series of 1986, issued by respondent Medical Center Chief did not make her
occupancy of that position temporary in character. It bears stressing that the positions of
Chief of Clinics and Assistant Director for Professional Services are basically one and the same
except for the change in nomenclature. Petitioners permanent appointment on 1 May 1985 to
the position of Chief of Clinics, therefore, remained effective.chanrobles lawlibrary : rednad
Neither can respondent Medical Center Chief rely on Section 2, Article III of the Freedom
Constitution and its Implementing Rules and Regulations embodied in Executive Order No. 17,

Page 184 of 492

Series of 1986. The relevant provision was effective only "within a period of one year from
February 25, 1986." 2 The Hospital Orders in question were issued only on 29 May, 1987.
Executive Order No. 119, or the "Reorganization Act of the Ministry of Health" promulgated on
30 January 1987, neither justifies petitioners removal. The pertinent provision thereof
reads:jgc:chanrobles.com.ph
"Sec. 26. New Structure and Pattern. Upon approval of this Executive Order, the officers
and employees of the Ministry shall, in a holdover capacity, continue to perform their
respective duties and responsibilities and receive the corresponding salaries and benefits
unless in the meantime they are separated from government service pursuant to Executive
Order No. 17 (1986) or Article III of the Freedom Constitution."cralaw virtua1aw library
The argument that, on the basis of this provision, petitioners term of office ended on 30
January 1987 and that she continued in the performance of her duties merely in a hold-over
capacity and could be transferred to another position without violating any of her legal rights,
is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate
reorganization and would have lapsed on 25 February 1987 (under the Provisional
Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective
(De Leon, Et. Al. v. Hon. Benjamin B. Esquerra, Et Al., G.R. No. 78059, 31 August 1987). After
the said date the provisions of the latter on security of tenure govern.
And while it may be that the designation of respondent Aguila as Assistant Director for
Professional Services and the relief of petitioner from the said position were not disapproved
by respondent Secretary of Health, it by no means implies that the questioned acts of
respondent Medical Center Chief were approved by the former official.
2. It follows from the foregoing disquisition that petitioner has a valid cause of action. Where
there is usurpation or intrusion into an office, quo warranto is the proper remedy. (Lota v.
Court of Appeals, No. L-14803, June 30, 1961, 2 SCRA 715).
3. The doctrine on exhaustion of administrative remedies does not preclude petitioner from
seeking judicial relief. This rule is not a hard and fast one but admits of exceptions among
which are that (1) the question in dispute is "purely a legal one" and (2) the controverted act
is patently illegal" (Carino v. ACCFA, No. L-19808, September 29, 1966, 18 SCRA 183). The
questions involved here are purely legal. The subject Hospital Orders violated petitioners
constitutional right to security of tenure and were, therefore, "patently illegal." Judicial
intervention was called for to enjoin the implementation of the controverted acts.
There was substantial compliance by petitioner with the requirement of exhaustion of
administrative remedies since she had filed a letter-protest with the respondent Secretary of
Health, with copies furnished the Commissioner of Civil Service, and the Chairman of the
Government Reorganization Commission, but the same remained unacted upon and proved an
inadequate remedy. Besides, an action for quo warranto must be filed within one year after
the cause of action accrues (Sec. 16, Rule 66, Rules of Court), and the pendency of
administrative remedies does not operate to suspend the running of the one-year period
(Cornejo v. Secretary of Justice L-32818, June 24, 1974, 57 SCRA 663).
WHEREFORE, the Writ of Quo Warranto is granted and petitioner, Dr. Nenita Palma-Fernandez,

Page 185 of 492

is hereby held entitled to the position of Assistant Director of Professional Services of the East
Avenue Medical Center up to the expiration of her term. The Temporary Restraining Order
heretofore issued enjoining the implementation of Hospital Orders Nos. 21 and 22, both dated
29 May 1987, is hereby made permanent.chanrobles.com : virtual law library
SO ORDERED.
Teehankee, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento, Cortes and Aquino, JJ., concur.
Endnotes:

1. "SEC. 24. Personnel Actions. . . .

(c) Transfer. A transfer is a movement from one position to another which is of equivalent
rank, level, or salary without break in service involving the issuance of an appointment.
It shall not be considered disciplinary when made in the interest of public service, in which
case, the employee concerned shall be informed of the reasons therefor. If the employee
believes that there is no justification for the transfer, he may appeal his case to the
Commission.
x

2. Article III, Sec. 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or executive
order or upon the designation or appointment and qualification of their successors, if such is
made within a period of one year from February 25, 1986.

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EN BANC
[G.R. No. L-13932. December 24, 1959.]
JOSE V. DE LOS SANTOS, ET AL., Petitioners, v. HON. NICASIO YATCO, ET
AL., Respondents.
Anacleto P. Bernardo, for Petitioners.
Talileo P. Brion for Respondents.
SYLLABUS
1. JUDGMENT; EXECUTION OF; JURISDICTION OF COURT TO QUASH WRIT OF EXECUTION.
A judge has jurisdiction to quash a writ of execution issued by him, especially where it was
improvidently issued. In the case at bar, althoug the court has already issued the order of
execution, there being opposition on the part of the defendant, who alleged and proved a
subsequent verbal agreement amending the compromise agreement, execution could not
validly be decreed without a hearing.
DECISION
BENGZON, J.:
Petition for certiorari to revoke the order of the respondent judge cancelling his previous order
of execution. For the reasons stated hereinafter, it should be denied.
It appears that in Civil Case No. Q-2664 of Quezon City Court of First Instance, the parties
submitted on December 9, 1957, a compromise agreement whereby, referring to the sale by
installment of a parcel of land made by plaintiffs Pacita V. de los Santos and Jose V. de los
Santos to defendant Francisco Mendoez, they asked the court to render a judgment subject
to the following conditions:jgc:chanrobles.com.ph
"a. On or before December 26, 1957, defendant shall pay to plaintiffs the amount of
P1,000.00;
b. Defendant shall pay P300.00 monthly installment within the first five days of every month
beginning January, 1958, until the balance shall have been paid in full;
c. The balance shall bear interest at 10% per annum;
d. That failure of defendant to pay P1,000.00 on or before December 26, 1957 and/or any two
(2) successive monthly installments shall be cause for plaintiffs to demand of defendant to
immediately vacate the premises with forfeiture in plaintiffs favor of all previous payments

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made; that if defendant will refuse to voluntarily vacate, plaintiffs can ask for execution of
judgment against the defendant;
e. That plaintiffs shall execute the necessary ABSOLUTE DEED OF SALE of the lot, Lot No. 4,
Block No. 13 C of T.C.T. No. 25094, Quezon City Registry, in favor of defendant upon payment
in full of the balance."cralaw virtua1aw library
Wherefore, the court issued on December 10, 1957, a decision approving the agreement, and
saying "judgment is hereby rendered in accordance with the terms and conditions set forth
therein, for the parties to comply therewith . . . ."cralaw virtua1aw library
On March 10, 1958, plaintiffs in the same case filed a motion for execution, because defendant
had allegedly neglected to pay monthly installments since January 1958. Plaintiffs set the
motion for hearing on March 15, 1958. However, on March 14, 1958, defendants moved (with
the conformity of plaintiffs counsel) for postponement to March 22, 1958 "to give the parties
sufficient time to come to a more just, fair and equitable agreement." (Annex "E") And the
judge postponed, as requested.
It is not clear what happened at the hearing on March 22, 1958. According to plaintiffs,
Mendoez admitted he violated the agreement, asked for, and was granted, two days to settle
with plaintiffs, but he failed to do so. According to defendant there was a misunderstanding at
that hearing. The fact is, the court issued on March 25, 1958, an order of execution. However,
defendant Mendoez filed on April 17, 1958, an urgent motion to quash the writ of execution,
asserting under oath that "immediately after the execution of the compromise agreement . . .
plaintiff Pacita V. de los Santos and defendant Francisco Mendoez entered into a verbal
agreement whereby the former assured and led defendant to believe that provided he could
pay in full and at one time the balance of his indebtedness to her through a GSIS
(Government Service Insurance System) loan which she is willing to facilitate for defendant,
she would execute the necessary deed of absolute sale in favor of the defendant for Lot No. 4,
Block No. 13-C, Pcs-3312-AMD of T.C.T. No. 25094 of Quezon City and would consider the
terms and conditions favorable to her in their compromise agreement uneforceable against
defendant. . . . ."cralaw virtua1aw library
Defendant further alleged, also under oath, among other things, that he applied for and
secured the necessary loan from the GSIS; that plaintiffs had been so advised on March 28,
1958; but plaintiff Pacita V. de los Santos "arbitrarily and illegally demands and continuous
demanding of defendant that before she complies with the content of said (verbal) agreement,
defendant should pay her P1,000.00 by way of attorneys fees plus the balance of defendants
indebtedness computed by her in the amount of P14,363.00, excluding interest yet, all to be
taken from defendants GSIS loan as approved, and that the P1,000.00 already paid by
defendant to her as stated in paragraph 4, supra, is considered by her forfeited in her favor. .
. . ."cralaw virtua1aw library
This urgent motion was taken up on April 19, 1958. After listening to the parties, the judge in
open court ordered; "In view of the statement of counsel for plaintiffs that they are still open
to an amicable settlement, action on the motion to quash writ of execution of the defendant is
held in abeyance for two (2) weeks during which period they can settle the case amicably and
report to the Court whatever agreement they may have reached."cralaw virtua1aw library

Page 188 of 492

On April 28, 1958, defendant manifested in writing that he conferred with plaintiff Pacita V. de
los Santos on April 22, 1958, that he made known to her "that he is ready to pay and is
offering her the sum of P13,563, his balance indebtedness to her, in accordance with their
verbal agreement on December 9, 1957 . . . . Plaintiff Pacita V. de los Santos brushed aside
defendants offer of payment, and instead, stated that she will abide by their said agreement
only if she will be paid P14,500.00. She added that she is demanding now, P14,500.00 after
she has forfeited the P1,000.00 already paid by defendant to her, and that she can not allow
the P1,000.00 be deducted from the remaining balance of P14,563.00."cralaw virtua1aw
library
The judge called the parties to a pre-trial or conference on June 2, 1958. Noting defendants
insistance on non-violation of the compromise agreement, he set the case for hearing on June
3, 1958. On said date according to the Judge, Atty. Bernardo (for plaintiffs) refused to attend
the hearing, and defendant proved the material allegations of his urgent motion as
hereinabove set forth.
Wherefore, convinced that there was no justification for the issuance of the writ of execution,
the Hon. Nicasio Yatco, Judge, quashed it by his order of June 4, 1958.
Hence this petition for certiorari to revoke that particular order, which petition must
necessarily be based on lack of jurisdiction or abuse of discretion. 1
There is no question in this country that a judge has jurisdiction to quash a writ of execution
issued by him, particularly where it was improvidently issued. (Dimayuga v. Raymundo, 76
Phil., 143, 42 Off. Gaz., 2121). See also Garcia v. Muoz, 103 Phil., 628.
Was there abuse of discretion? We think not. In the first place, there being opposition on the
part of the defendant, who alleged and proved a subsequent verbal agreement amending the
compromise, execution could not validly be decreed without a hearing. As we said in Co. v.
Lucero, 100 Phil., 160, 52 Off. Gaz., (17), 7255, when under similar circumstances a breach of
the compromise agreement is alleged, "there arises a cause of action which must be passed
upon by the court requiring a hearing to determine whether such breach had really taken
place." 2
In the second place, the allegations proved by Mendoez about their verbal agreement, his
having secured a loan from the GSIS and his consequent ability to discharge his obligation
seemingly justified the courts refusal to eject defendant from the premises (on execution)
with the consequent forfeiture in favor of the plaintiffs of more than P12,000.00 already paid
by defendant as previous instalments of the purchase price, 3 not to mention the loss of
defendants use of the house and theatre erected on that parcel of land. Upon the other hand,
the respondent judges action caused no irreparable or undue harm to plaintiffs, because the
latter still have the judgment that may be enforced upon any further default of defendant
Mendoez. Note particularly that their unpaid credit continuous to earn 10% interest.
Wherefore, as the court had jurisdiction and has committed no grave abuse of discretion, the
writ ofcertiorari may not be issued.
Petition denied, with costs against petitioners.

Page 189 of 492

Paras, C.J., Padilla, Montemayor, Bautista Angelo, Labrador, Endencia, Barrera and Gutierrez
David,JJ., concur.
Endnotes:

1 The corollary request for mandamus to compel execution depends upon the petition
for certiorari.
2 A further issue might possibly be tendered concerning the effect of plaintiffs repeated
readiness "to come to a more just, fair and equitable agreement" (Annex E) or an "amicable
settlement" (Annex X). Did this amount to a waiver of the right to demand execution as a
condonation of the default? Cf. Dimayuga v. Raymundo, supra.
3 "With forfeiture in plaintiffs favor of all previous payments made" (see compromise
agreement)

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Republic of the Philippines

SUPREME COURT
Manila
EN BANC

February 25, 1938

G.R. No. 45937

JUAN CAILLES, petitioner,
vs.
ARSENIO BONIFACIO, respondent.
Emiliano Tria Tirona, Jose V. Rosales, and Galo Acua for petitioner.
Pedro Magsalin, Ruperto Kapunan, Felipe Buencamino, Jr., Francisco Alfonso, Jose Guevara, Guillermo B. Guevara,
and Barrera and Reyes for respondent.
Office of the Solicitor-General as amicus curiae.
LAUREL, J.:
This is an original action in the nature of quo warranto instituted by the petitioner under the provisions of section 408
of the Election Law for the purpose of ousting the respondent from the office of provincial governor of Laguna. It is
contended that at the time he filed his certificate of candidacy and was elected to office, the respondent was a captain in
the reverse force of the Philippine Army and, for this reason, is ineligible to office. Two grounds are advanced in
support of this contention: (a) the alleged disqualification of the respondent under section 431 of the Election Law and
prohibition against him as member of the armed forces under section 2 of Article XI of the Constitution and section 449
of the Election Law.
With reference to the ground, the petition alleges that:

. . . al tiempo de presentado y registrado su candidature al cargo de Gobernador Provicial y al tiempo de su eleccion, el

recurrido era Capitan del Ejercito Filipino, si bien pertencia al Cuerpo de Reserva, pero cuyo status es identico al
servicio regular activo del Ejercito Filipino, sin haber dimitido de dicho cargo hasta la fecha, y por articulo 431 de la
Ley Electoral;

4. Que por tal motivo no reuniendo el recurrido las debidas calificaciones para ser elector, uno de los requisitos para
quo pueda ser legalmente candidato elegible para el cargo de Gobernador Provincial, de acuerdo con el articulo 2071
del Codigo Administrativo no era elegible, por tanto, para el cargo Gobernador Provincial de Laguna y

Page 191 of 492

consiguientemente su eleccion y los votos recibibos para el citado cargo son nulos, y no tiene derecho a ocupar ni
continuar ocupando el referido cargo.
Section 2, Article XI of the Constitution prohibits members of the armed forces form engaging in any partisan political
activity, or otherwise taking part in any election except to vote, but it does not ex vi termini grant or confer upon them
the right of suffrage. It prohibits partisan political activity or taking part in any election except to vote, but permits the
exercise of the right to vote only if such right is granted by law. As section 431 of the Election Law, as amended
by Commonwealth Act No. 233, disqualified from voting only members in the active service of the Philippines Army
and no claim is made that this discrimination is violation of the Constitution, it follows that the respondent, being in the
reserve force, is not disqualified from voting. Stated otherwise, the respondent being a qualified elector and the
possession by him of the other qualifications prescribed for an elective provincial office not being challenged, he is not
ineligible to the office of provincial governor to which he has been elected. The first ground on the petition is,
therefore, without merit.
With reference to the second ground the petition that the respondent

. . . Como tal Capital Ejercito Filipino es y era un funcionario del mismo quien el articulo 449 de la Ley Electoral
prohibe influir en manera alguna y tomar parte en cualquiera eleccion, excepto el ejercicio del derecho de votar, por
tanto, no podia legalmente ser candidato para el cargo de Gobernador Provincial, ni ser elegible para el mismo cargo;

. . . como Capitan del Ejercito Filipino era miembro de las "fuerzas armadas" de Filipinas quienes, segun el articulo 2,
Titulo XI de la Constitucion de Filipinas, no prodran tomar parte directa ni indirecta, en campaas politicas de partido,
ni en ninguna eleccion excepto para votar, y por tanto, no podiar ser legalmente candidato al cargo de Gobernador
Provincial, ni ser eligle para el mismo.

Section 2, Article XI, of the Constitution is as follows:

SEC 2. Officers and employees in the Civil Service, including members of the armed forced, shall not engage directly
or indirectly in partisan political activities or take part in any election except to vote.

The prohibition as originally proposed in the Convention was section 2, Article XII, of the formal draft of the
Constitution and was of the following tenor:

SEC. 2. Public officers and employees in the Civil Service shall not engage directly or indirectly in political activities
or take part in any election except to vote; they are servants of the people and not the agent of any political groups.

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It was evident that the intention was to continue by in corporation in the Constitution the then existing prohibition
against officers and employees of the Civil Service from, engaging in political or electoral activities except to vote, for
the reason that public officers and employees in the Civil Service "are servant of the State and not the agents of any
political group." "Members of the armed forced" were not included in the original draft but finally it was though
advisable by the Constitutional Convention to extend the prohibition to them. In including only those in the active
service were contemplated. Upon the other hand, a contrary interpretation would lead to the disqualification of all ablebodied male citizens between the ages of 20 and 50 years not specially exempted by the National Defense Act
from holding election public offices or otherwise taking part in any election except to vote and this result, for obvious
reasons, should be avoided.

The respondent calls attention to paragraph (f) of section 405 of the Election Law, as amended by Commonwealth Act
No. 233, which provides that the presentation of his certificate of candidacy operated automatically to vacate his
position as captain of the reserve corps. From the view we take on this case, it is unnecessary to pass this point.
The petition prayed for is hereby dismissed, without pronouncement as to costs. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.

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THIRD DIVISION
G.R. No. 85279 July 28, 1989
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T.
BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE
ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, Petitioner,
vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C.
PERALEJO, RTC, BRANCH 98, QUEZON CITY,Respondents.
Vicente T. Ocampo & Associates for petitioners.
CORTES, J:
Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin
the Social Security System Employees Association (SSSEA) from striking and order the striking
employees to return to work. Collaterally, it is whether or not employees of the Social Security
System (SSS) have the right to strike.chanrobles virtual law library
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for
damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on
June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the
entrances to the SSS Building, preventing non-striking employees from reporting for work and
SSS members from transacting business with the SSS; that the strike was reported to the
Public Sector Labor - Management Council, which ordered the strikers to return to work; that
the strikers refused to return to work; and that the SSS suffered damages as a result of the
strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike
and that the strikers be ordered to return to work; that the defendants (petitioners herein) be
ordered to pay damages; and that the strike be declared illegal.chanrobles virtual law library
It appears that the SSSEA went on strike after the SSS failed to act on the union's demands,
which included: implementation of the provisions of the old SSS-SSSEA collective bargaining
agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night
differential pay and holiday pay; conversion of temporary or contractual employees with six
(6) months or more of service into regular and permanent employees and their entitlement to
the same salaries, allowances and benefits given to other regular employees of the SSS; and
payment of the children's allowance of P30.00, and after the SSS deducted certain amounts
from the salaries of the employees and allegedly committed acts of discrimination and unfair
labor practices [Rollo, pp. 21-241].chanrobles virtual law library
The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of
the application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners
filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter
[Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the
issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order,
the court a quo denied the motion to dismiss and converted the restraining order into an

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injunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86].
As petitioners' motion for the reconsideration of the aforesaid order was also denied on August
14, 1988 [Rollo, p. 94], petitioners filed a petition forcertiorari and prohibition with preliminary
injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution
dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to
the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its
pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case
[Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals' decision. In the
meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No.
97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of
Appeals was also denied in view of this Court's denial of the motion for reconsideration [Rollo,
pp. 141- 143]. Hence, the instant petition to review the decision of the Court of Appeals
[Rollo, pp. 12-37].chanrobles virtual law library
Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order
enjoining the petitioners from staging another strike or from pursuing the notice of strike they
filed with the Department of Labor and Employment on January 25, 1989 and to maintain
the status quo [Rollo, pp. 151-152].chanrobles virtual law library
The Court, taking the comment as answer, and noting the reply and supplemental reply filed
by petitioners, considered the issues joined and the case submitted for decision.chanrobles
virtual law library
The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the
case initiated by the SSS and to issue the restraining order and the writ of preliminary
injunction, as jurisdiction lay with the Department of Labor and Employment or the National
Labor Relations Commission, since the case involves a labor dispute.chanrobles virtual law
library
On the other hand, the SSS advances the contrary view, on the ground that the employees of
the SSS are covered by civil service laws and rules and regulations, not the Labor Code,
therefore they do not have the right to strike. Since neither the DOLE nor the NLRC has
jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from
striking.chanrobles virtual law library
In dismissing the petition for certiorari and prohibition with preliminary injunction filed by
petitioners, the Court of Appeals held that since the employees of the SSS, are government
employees, they are not allowed to strike, and may be enjoined by the Regional Trial Court,
which had jurisdiction over the SSS' complaint for damages, from continuing with their
strike.chanrobles virtual law library
Thus, the sequential questions to be resolved by the Court in deciding whether or not the
Court of Appeals erred in finding that the Regional Trial Court did not act without or in excess
of jurisdiction when it took cognizance of the case and enjoined the strike are as follows:
1. Do the employees of the SSS have the right to strike?

Page 195 of 492

2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to
enjoin the strikers from continuing with the strike and to order them to return to work?
These shall be discussed and resolved seriatim
I
The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the
State "shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance with
law" [Art. XIII, Sec. 31].chanrobles virtual law library
By itself, this provision would seem to recognize the right of all workers and employees,
including those in the public sector, to strike. But the Constitution itself fails to expressly
confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides,
after defining the scope of the civil service as "all branches, subdivisions, instrumentalities,
and agencies of the Government, including government-owned or controlled corporations with
original charters," that "[t]he right to self-organization shall not be denied to government
employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides
that "[tlhe right of the people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not contrary to law shall not abridged"
[Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of
government employees to organize, it is silent as to whether such recognition also includes the
right to strike.chanrobles virtual law library
Resort to the intent of the framers of the organic law becomes helpful in understanding the
meaning of these provisions. A reading of the proceedings of the Constitutional Commission
that drafted the 1987 Constitution would show that in recognizing the right of government
employees to organize, the commissioners intended to limit the right to the formation of
unions or associations only, without including the right to strike.chanrobles virtual law library
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to
self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in
answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President
of the Commission, explained:
MR. LERUM. I think what I will try to say will not take that long. When we proposed this
amendment providing for self-organization of government employees, it does not mean that
because they have the right to organize, they also have the right to strike. That is a different
matter. We are only talking about organizing, uniting as a union. With regard to the right to
strike, everyone will remember that in the Bill of Rights, there is a provision that the right to
form associations or societies whose purpose is not contrary to law shall not be abridged. Now
then, if the purpose of the state is to prohibit the strikes coming from employees exercising
government functions, that could be done because the moment that is prohibited, then the
union which will go on strike will be an illegal union. And that provision is carried in Republic
Act 875. In Republic Act 875, workers, including those from the government-owned and
controlled, are allowed to organize but they are prohibited from striking. So, the fear of our
honorable Vice- President is unfounded. It does not mean that because we approve this

Page 196 of 492

resolution, it carries with it the right to strike. That is a different matter. As a matter of fact,
that subject is now being discussed in the Committee on Social Justice because we are trying
to find a solution to this problem. We know that this problem exist; that the moment we allow
anybody in the government to strike, then what will happen if the members of the Armed
Forces will go on strike? What will happen to those people trying to protect us? So that is a
matter of discussion in the Committee on Social Justice. But, I repeat, the right to form an
organization does not carry with it the right to strike. [Record of the Constitutional
Commission, vol. 1, p. 569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the
Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government,
including instrumentalities exercising governmental functions, but excluding entities entrusted
with proprietary functions:
.Sec. 11. Prohibition Against Strikes in the Government. - The terms and conditions of
employment in the Government, including any political subdivision or instrumentality thereof,
are governed by law and it is declared to be the policy of this Act that employees therein shall
not strike for the purpose of securing changes or modification in their terms and conditions of
employment. Such employees may belong to any labor organization which does not impose
the obligation to strike or to join in strike: Provided, however, That this section shall apply
only to employees employed in governmental functions and not those employed in proprietary
functions of the Government including but not limited to governmental corporations.
No similar provision is found in the Labor Code, although at one time it recognized the right of
employees of government corporations established under the Corporation Code to organize
and bargain collectively and those in the civil service to "form organizations for purposes not
contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath
it provided that "[t]he terms and conditions of employment of all government employees,
including employees of government owned and controlled corporations, shall be governed by
the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code
is silent as to whether or not government employees may strike, for such are excluded from
its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the
matter.chanrobles virtual law library
On June 1, 1987, to implement the constitutional guarantee of the right of government
employees to organize, the President issued E.O. No. 180 which provides guidelines for the
exercise of the right to organize of government employees. In Section 14 thereof, it is
provided that "[t]he Civil Service law and rules governing concerted activities and strikes in
the government service shall be observed, subject to any legislation that may be enacted by
Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of
the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by
Congress of applicable laws concerning strike by government employees ... enjoins under pain
of administrative sanctions, all government officers and employees from staging strikes,
demonstrations, mass leaves, walk-outs and other forms of mass action which will result in
temporary stoppage or disruption of public service." The air was thus cleared of the confusion.
At present, in the absence of any legislation allowing government employees to strike,
recognizing their right to do so, or regulating the exercise of the right, they are prohibited
from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No.

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180. [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not
at issue].chanrobles virtual law library
But are employees of the SSS covered by the prohibition against strikes?
The Court is of the considered view that they are. Considering that under the 1987
Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities, and
agencies of the Government, including government-owned or controlled corporations with
original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees
in the civil service are denominated as "government employees"] and that the SSS is one such
government-controlled corporation with an original charter, having been created under R.A.
No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 &
70295, November 24,1988] and are covered by the Civil Service Commission's memorandum
prohibiting strikes. This being the case, the strike staged by the employees of the SSS was
illegal.chanrobles virtual law library
The statement of the Court in Alliance of Government Workers v. Minister of Labor and
Employment[G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the
rationale for distinguishing between workers in the private sector and government employees
with regard to the right to strike:
The general rule in the past and up to the present is that 'the terms and conditions of
employment in the Government, including any political subdivision or instrumentality thereof
are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended and
Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of
government employment are fixed by law, government workers cannot use the same weapons
employed by workers in the private sector to secure concessions from their employers. The
principle behind labor unionism in private industry is that industrial peace cannot be secured
through compulsion by law. Relations between private employers and their employees rest on
an essentially voluntary basis. Subject to the minimum requirements of wage laws and other
labor and welfare legislation, the terms and conditions of employment in the unionized private
sector are settled through the process of collective bargaining. In government employment,
however, it is the legislature and, where properly given delegated power, the administrative
heads of government which fix the terms and conditions of employment. And this is effected
through statutes or administrative circulars, rules, and regulations, not through collective
bargaining agreements. [At p. 13; Emphasis supplied].
Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper
submitted to the 1971 Constitutional Convention, and quoted with approval by the Court
in Alliance, to wit:
It is the stand, therefore, of this Commission that by reason of the nature of the public
employer and the peculiar character of the public service, it must necessarily regard the right
to strike given to unions in private industry as not applying to public employees and civil
service employees. It has been stated that the Government, in contrast to the private
employer, protects the interest of all people in the public service, and that accordingly, such
conflicting interests as are present in private labor relations could not exist in the relations
between government and those whom they employ. [At pp. 16-17; also quoted in National
Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-179].
Page 198 of 492

E.O. No. 180, which provides guidelines for the exercise of the right to organize of government
employees, while clinging to the same philosophy, has, however, relaxed the rule to allow
negotiation where the terms and conditions of employment involved are not among those
fixed by law. Thus:
.SECTION 13. Terms and conditions of employment or improvements thereof, except those
that are fixed by law, may be the subject of negotiations between duly recognized employees'
organizations and appropriate government authorities.
The same executive order has also provided for the general mechanism for the settlement of
labor disputes in the public sector to wit:
.SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be
followed in the resolution of complaints, grievances and cases involving government
employees. In case any dispute remains unresolved after exhausting all the available remedies
under existing laws and procedures, the parties may jointly refer the dispute to the [Public
Sector Labor- Management] Council for appropriate action.
Government employees may, therefore, through their unions or associations, either petition
the Congress for the betterment of the terms and conditions of employment which are within
the ambit of legislation or negotiate with the appropriate government agencies for the
improvement of those which are not fixed by law. If there be any unresolved grievances, the
dispute may be referred to the Public Sector Labor - Management Council for appropriate
action. But employees in the civil service may not resort to strikes, walk-outs and other
temporary work stoppages, like workers in the private sector, to pressure the Govemment to
accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations
to Govern the Exercise of the Right of Government- Employees to Self- Organization, which
took effect after the instant dispute arose, "[t]he terms and conditions of employment in the
government, including any political subdivision or instrumentality thereof and governmentowned and controlled corporations with original charters are governed by law and employees
therein shall not strike for the purpose of securing changes thereof."
II
The strike staged by the employees of the SSS belonging to petitioner union being prohibited
by law, an injunction may be issued to restrain it.chanrobles virtual law library
It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive
jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ
of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms
and conditions of employment of government employees shall be governed by the Civil Service
Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector
Labor - Management Council with jurisdiction over unresolved labor disputes involving
government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the
dispute.chanrobles virtual law library
This being the case, the Regional Trial Court was not precluded, in the exercise of its general
jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's

Page 199 of 492

complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the
Public Sector Labor - Management Council has not been granted by law authority to issue
writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not
the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of
law for the issuance of a writ of injunction to enjoin the strike is appropriate.chanrobles virtual
law library
Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had
proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of
the strike to prevent any further disruption of public service, the respondent judge, in the
same order, admonished the parties to refer the unresolved controversies emanating from
their employer- employee relationship to the Public Sector Labor - Management Council for
appropriate action [Rollo, p. 86].
III
In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their
reply and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and
benefits due the individual petitioners and they pray that the Court issue a writ of preliminary
prohibitive and mandatory injunction to restrain the SSS and its agents from withholding
payment thereof and to compel the SSS to pay them. In their supplemental reply, petitioners
annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled that the
officers of the SSSEA who are not preventively suspended and who are reporting for work
pending the resolution of the administrative cases against them are entitled to their salaries,
year-end bonuses and other fringe benefits and affirmed the previous order of the Merit
Systems Promotion Board.chanrobles virtual law library
The matter being extraneous to the issues elevated to this Court, it is Our view that
petitioners' remedy is not to petition this Court to issue an injunction, but to cause the
execution of the aforesaid order, if it has already become final.chanrobles virtual law library
WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant
petition for review is hereby DENIED and the decision of the appellate court dated March 9,
1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary
and Mandatory Injunction" dated December 13,1988 is DENIED.chanrobles virtual law library
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

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EN BANC
G.R. No. 124678 July 31, 1997
DELIA BANGALISAN, LUCILIN CABALFIN, EMILIA DE GUZMAN, CORAZON GOMEZ,
CORAZON GREGORIO, LOURDES LAREDO, RODOLFO MARIANO, WILFREDO
MERCADO, LIGAYA MONTANCES and CORAZON PAGPAGUITAN, Petitioners, v. HON.
COURT OF APPEALS, THE CIVIL SERVICE COMMISSION and THE SECRETARY OF THE
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, Respondents.
REGALADO, J.:
This is an appeal by certiorari from the judgment of the Court of Appeals in CA-G.R. SP No.
38316, which affirmed several resolutions of the Civil Service Commission finding petitioners
guilty of conduct prejudicial to the best interest of the service, as well as its resolution of April
12, 1996 denying petitioners' motion for reconsideration. 1
Petitioners, except Rodolfo Mariano, were among the 800 public school teachers who staged
"mass actions" on September 17 to 19, 1990 to dramatize their grievances concerning, in the
main, the alleged failure of the public authorities to implement in a just and correct manner
certain laws and measures intended for their material benefit.
On September 17, 1990, the Secretary of the Department of Education, Culture and Sports
(DECS) issued a Return-to-Work Order. Petitioners failed to comply with said order, hence
they were charged by the Secretary with "grave misconduct; gross neglect of duty; gross
violation of Civil Service law, rules and regulations and reasonable office regulations; refusal
to perform official duty; gross insubordination; conduct prejudicial to the best interest of the
service; and absence without official leave in violation of PD 807, otherwise known as the Civil
Service Decree of the Philippines." They were simultaneously placed under preventive
suspension.
Despite due notice, petitioners failed to submit their answer to the complaint. On October 30,
1990, the DECS Secretary rendered a decision finding petitioners guilty as charged and
dismissing them from the service effective immediately.
Acting on the motions for reconsideration filed by petitioners Bangalisan, Gregorio, Cabalfin,
Mercado, Montances and Pagpaguitan, the Secretary subsequently modified the penalty of
dismissal to suspension for nine months without pay.
Petitioner Gomez likewise moved for reconsideration with the DECS and then appealed to the
Merit Systems Protection Board (MSPB). The other petitioners also filed individual appeals to
the MSPB, but all of their appeals were dismissed for lack of merit.
Not satisfied with the aforestated adjudication of their respective cases, petitioners appealed
to the Civil Service Commission (CSC). The appeals of petitioners Cabalfin, Montances and

Page 201 of 492

Pagpaguitan were dismissed for having been filed out of time. On motion for reconsideration,
however, the CSC decided to rule on the merits of their appeal in the interest of justice.
Thereafter, the CSC issued Resolution No. 94-1765 finding Cabalfin guilty of conduct
prejudicial to the best interest of the service and imposing on him a penalty of six months
suspension without pay. The CSC also issued Resolutions Nos. 94-2806 and 94-2384 affirming
the penalty of nine months suspension without pay theretofore imposed on petitioners
Montances and Pagpaguitan.
With respect to the appeals of the other petitioners, the CSC also found them guilty of conduct
prejudicial to the best interest of the service. It, however, modified the penalty of nine months
suspension previously meted to them to six months suspension with automatic reinstatement
in the service but without payment of back wages.
All the petitioners moved for reconsideration of the CSC resolutions but these were all
denied, 2except that of petitioner Rodolfo Mariano who was found guilty only of a violation of
reasonable office rules and regulations because of his failure to inform the school of his
intended absence and to file an application for leave therefor. This petitioner was accordingly
given only a reprimand. 3
Petitioners then filed a petition for certiorari with this Court but, on August 29, 1995, their
petition was referred to the Court of Appeals pursuant to Revised Administrative Circular No.
1-95. 4
On October 20, 1995, the Court of Appeals dismissed the petition for lack of
merit. 5 Petitioners' motion for reconsideration was also denied by respondent court, 6 hence
the instant petition alleging that the Court of Appeals committed grave abuse of discretion
when it upheld the resolutions of the CSC (1) that penalized petitioners whose only offense
was to exercise their constitutional right to peaceably assemble and petition the government
for redress of grievances; (2) that penalized petitioner Mariano even after respondent
commission found out that the specific basis of the charges that former Secretary Cario filed
against him was a falsehood; and (3) that denied petitioners their right to back wages
covering the period when they were illegally not allowed to teach. 7
It is the settled rule in this jurisdiction that employees in the public service may not engage in
strikes. While the Constitution recognizes the right of government employees to organize, they
are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms
of mass action which will result in temporary stoppage or disruption of public services. The
right of government employees to organize is limited only to the formation of unions or
associations, without including the right to strike. 8
Petitioners contend, however, that they were not on strike but were merely exercising their
constitutional right peaceably to assemble and petition the government for redress of
grievances. We find such pretension devoid of merit.
The issue of whether or not the mass action launched by the public school teachers during the
period from September up to the first half of October, 1990 was a strike has been decided by
this Court in a resolution, dated December 18, 1990, in the herein cited case of Manila Public

Page 202 of 492

School Teachers Association, et al. vs. Laguio, Jr., supra. It was there held "that from the
pleaded and admitted facts, these 'mass actions' were to all intents and purposes a strike;
they constituted a concerted and unauthorized stoppage of, or absence from, work which it
was the teachers' duty to perform, undertaken for essentially economic reasons."
It is an undisputed fact that there was a work stoppage and that petitioners' purpose was to
realize their demands by withholding their services. The fact that the conventional term
"strike" was not used by the striking employees to describe their common course of action is
inconsequential, since the substance of the situation, and not its appearance, will be deemed
to be controlling. 9
The ability to strike is not essential to the right of association. In the absence of statute, public
employees do not have the right to engage in concerted work stoppages for any purpose. 10
Further, herein petitioners, except Mariano, are being penalized not because they exercised
their right of peaceable assembly and petition for redress of grievances but because of their
successive unauthorized and unilateral absences which produced adverse effects upon their
students for whose education they are responsible. The actuations of petitioners definitely
constituted conduct prejudicial to the best interest of the service, punishable under the Civil
Service law, rules and regulations.
As aptly stated by the Solicitor General, "It is not the exercise by the petitioners of their
constitutional right to peaceably assemble that was punished, but the manner in which they
exercised such right which resulted in the temporary stoppage or disruption of public service
and classes in various public schools in Metro Manila. For, indeed, there are efficient but nondisruptive avenues, other than the mass actions in question, whereby petitioners could
petition the government for redress of grievances." 11
It bears stressing that suspension of public services, however temporary, will inevitably derail
services to the public, which is one of the reasons why the right to strike is denied government
employees. 12 It may be conceded that the petitioners had valid grievances and noble
intentions in staging the "mass actions," but that will not justify their absences to the
prejudice of innocent school children. Their righteous indignation does not legalize an illegal
work stoppage.
As expounded by this Court in its aforementioned resolution of December 18, 1990, in
the Manila Public School Teachers Association case, ante:
It is, of course, entirely possible that petitioners and their member-teachers had and have
some legitimate grievances. This much may be conceded. After all, and for one thing, even the
employees of the Court have found reason to complain about the manner in which the
provisions of the salary standardization law on pay adjustments and position classification
have been, or are being, implemented. Nonetheless, what needs to be borne in mind, trite
though it may be, is that one wrong cannot be righted by another, and that redress, for even
the most justifiable complaints, should not be sought through proscribed or illegal means. The
belief in the righteousness of their cause, no matter how deeply and fervently held, gives the
teachers concerned no license to abandon their duties, engage in unlawful activity, defy
constituted authority and set a bad example to their students.

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Petitioners also assail the constitutionality of Memorandum Circular No. 6 issued by the Civil
Service Commission. The resolution of the said issue is not really necessary in the case at bar.
The argument of petitioners that the said circular was the basis of` their liability is off tangent.
As a general rule, even in the absence of express statutory prohibition like Memorandum
Circular No. 6, public employees are denied the right to strike or engage in a work stoppage
against a public employer. 13 The right of the sovereign to prohibit strikes or work stoppages
by public employees was clearly recognized at common law. Indeed, it is frequently declared
that modern rules which prohibit such strikes, either by statute or by judicial decision, simply
incorporate or reassert the common law rule. 14
To grant employees of the public sector the right to strike, there must be a clear and direct
legislative authority therefor. 15 In the absence of any express legislation allowing government
employees to strike, recognizing their right to do so, or regulating the exercise of the right,
employees in the public service may not engage in strikes, walkouts and temporary work
stoppages like workers in the private sector. 16
On the issue of back wages, petitioners' claim is premised on the allegation that their
preventive suspension, as well as the immediate execution of the decision dismissing or
suspending them, are illegal. These submissions are incorrect.
Section 51 of Executive Order No. 292 provides that "(t)he proper disciplining authority may
preventively suspend any subordinate officer or employee under his authority pending an
investigation, if the charge against such officer or employee involves dishonesty, oppression or
grave misconduct, or neglect in the performance of duty, or if there are reasons to believe
that the respondent is guilty of charges which would warrant his removal from the service."
Under the aforesaid provision, it is the nature of the charge against an officer or employee
which determines whether he may be placed under preventive suspension. In the instant case,
herein petitioners were charged by the Secretary of the DECS with grave misconduct, gross
neglect of duty, gross violation of Civil Service law, rules and regulations, and reasonable
office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to
the best interest of the service and absence without official leave (AWOL), for joining the
teachers' mass actions held at Liwasang Bonifacio on September 17 to 21, 1990. Hence, on
the basis of the charges against them, it was within the competence of the Secretary to place
herein petitioners under preventive suspension.
As to the immediate execution of the decision of the Secretary against petitioners, the same is
authorized by Section 47, paragraph (2), of Executive Older No. 292, thus: "The Secretaries
and heads of 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 shall be executory except when the penalty is removal, in which case
the same shall be executory only after confirmation by the Secretary concerned."

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Petitioners' claim of denial of due process must also fail. The records of this case clearly show
that they were given opportunity to refute the charges against them but they failed to avail
themselves of the same. The essence of due process is simply an opportunity to be heard or,
as applied to administrative proceedings, an opportunity to seek reconsideration of the action
or ruling complained of. 17 For as long as the parties were given the opportunity to be heard
before judgment was rendered, the demands of due process were sufficiently met. 18
Having ruled that the preventive suspension of petitioners and the immediate execution of the
DECS decision are in accordance with law, the next query is whether or not petitioners may be
entitled to back wages.
The issue regarding payment of back salaries during the period of suspension of a member of
the civil service who is subsequently ordered reinstated, is already settled in our jurisdiction.
Such payment of salaries corresponding to the period when an employee is not allowed to
work may be decreed if he is found innocent of the charges which caused the suspension and
when the suspension is unjustified.19
With respect to petitioner Rodolfo Mariano, payment of his back wages is in order. A reading of
the resolution of the Civil Service Commission will show that he was exonerated of the charges
which formed the basis for his suspension. The Secretary of the DECS charged him with and
he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the
Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform
official duty, gross insubordination conduct prejudicial to the best interest of the service, and
absence without official leave, for his participation in the mass actions on September 18, 20
and 21, 1990. It was his alleged participation in the mass actions that was the basis of his
preventive suspension and, later, his dismissal from the service.
However, the Civil Service Commission, in the questioned resolution, made a finding that
Mariano was not involved in the "mass actions" but was absent because he was in Ilocos Sur
to attend the wake and interment of his grandmother. Although the CSC imposed upon him
the penalty of reprimand, the same was for his violation of reasonable office rules and
regulations because he failed to inform the school or his intended absence and neither did he
file an application for leave covering such absences.20
Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other
pertinent civil service laws, in violations of reasonable office rules and regulations, the first
offense is punishable by reprimand. To deny petitioner Mariano his back wages during his
suspension would be tantamount to punishing him after his exoneration from the charges
which caused his dismissal from the service. 21
However, with regard to the other petitioners, the payment of their back wages must be
denied. Although the penalty imposed on them was only suspension, they were not completely
exonerated of the charges against them. The CSC made specific findings that, unlike petitioner
Mariano, they indeed participated in the mass actions. It will be noted that it was their
participation in the mass actions that was the very basis of the charges against them and their
subsequent suspension.

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The denial of salary to an employee during the period of his suspension, if he should later be
found guilty, is proper because he had given ground for his suspension. It does not impair his
constitutional rights because the Constitution itself allows suspension for cause as provided by
law and the law provides
that an employee may be suspended pending an investigation or by way of penalty. 22
Moreover, the general proposition is that a public official is not entitled to any compensation if
he has not rendered any service. As he works, he shall earn. Since petitioners did not work
during the period for which they are now claiming salaries, there can be no legal or equitable
basis to order the payment of such salaries. 23
It is also noteworthy that in its resolutions, the Civil Service Commission expressly denied
petitioners' right to back wages. In the case of Yacia vs. City of Baguio, 24 the decision of the
Commissioner of Civil Service ordering the dismissal of a government employee on the ground
of dishonesty was immediately executed pending appeal, but, on appeal, the Civil Service
Board of Appeals modified that penalty to a fine equivalent to six months pay. We ruled that
the claim of an employee for back wages, for the period during which he was not allowed to
work because of the execution of the decision of the Commissioner, should be denied.
The appeal board's modified decision did not exonerate the employee nor did it affect the
validity of his dismissal or separation from work pending appeal, as ordered by the Civil
Service Commissioner. Such separation from work pending his appeal remained valid and
effective until it was set aside and modified with the imposition of the lesser penalty by the
appeals board. If the Civil Service Appeals Board had intended to grant him back salaries and
to reduce his penalty to six months fine deductible from such unearned back salaries, the
board could and should have so expressly stated in its decision.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED, but with the
MODIFICATION that petitioner Rodolfo Mariano shall be given back wages without deduction
or qualification from the time he was suspended until his actual reinstatement which, under
prevailing jurisprudence, should not exceed five years.
SO ORDERED.
Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.
Narvasa, C.J. and Torres, Jr., J., are on leave.
Endnotes:
1 Penned by Justice Antonio M. Martinez, with Justices Delilah Vidallon-Magtolis and Romeo
Callejo, Sr. concurring.
2 Rollo, CA-G.R. SP No. 38316, 50-85.
3 Ibid., id., 70-71.

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4 Ibid., id., 131.

5 Rollo, 79-89.
6 Ibid., 91.
7 Ibid., 20-21.
8 See Manila Public School Teachers Association, et al. vs. Laguio, Jr., G.R. Nos. 95445 and
95590, August 6, 1991, 200 SCRA 323; Social Security System Employees Association, et al.
vs. Court of Appeals, et al., G.R. No. 85279, July 28, 1989, 175 SCRA 686; Alliance of
Government Workers, et al. vs. Minister of Labor and Employment, G.R. No 60403, August 3,
1983, 124 SCRA 1.
9 Board of Education v. New Jersey Education Association (1968) 53 NJ 29, 247 A2d 867.
10 48A Am. Jur. 2d, Public Employees, Sec. 2026, 407.
11 Rollo, 141-142.
12 Social Security System Employees Association, et al. vs. Court of Appeals, et al., supra.
13 Public Employees - Right To Strike, 37 ALR 3d 1156.
14 Ibid., 1150.
15 The Pinellas County Classroom Teachers Association, Inc. vs. The Board of Public
Instruction of Pinellas County, Fla., 214 So. 2d 34.
16 Social Security System Employees Association, et al. vs. Court of Appeals, et al. supra.
17 Sunset View Condominium Corporation vs. National Labor Relations Commission, et al.,
G.R. No. 87799, December 15, 1993, 228 SCRA 466; Bautista vs. Secretary of Labor, G.R. No.
81374, April 30, 1991, 196 SCRA 470.
18 Lindo vs. COMELEC, G.R. No. 95016, February 11, 1991, 194 SCRA 251; see Esber, et al.
vs. Sto. Tomas, et al., G.R. No. 107324, August 26, 1993, 225 SCRA 664.
19 Miranda vs. Commission on Audit, G.R. No. 84613, August 16, 1991, 200 SCRA 657;
Abellera vs. City of Baguio, et al., G.R. No. L-23957, Match 18, 1967, 125 SCRA 1033; Tanala
vs. Legaspi, et al., G.R. No. L-22537, March 31, 1965, 13 SCRA 566.
20 Rollo, 100-101.
21 See Tanala vs. Legaspi, et al., supra; Tan vs. Gimenez, et al., 107 Phil. 17 (1960).
22 Austria vs. Auditor General, G.R. No. L-21918, January 23, 1967, 19 SCRA 79.

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23 See Sales vs. Mathay, Sr., et al., G.R. No. L-39557, May 3, 1984, 129 SCRA 180; Reyes vs.
Hernandez, 71 Phil. 397 (1941).
24 G.R. No. L-27562, May 29, 1970, 33 SCRA 419.

EN BANC
[G.R. No. 131529. April 30, 1999.]
IRINEO V. INTIA, JR., Postmaster General, Philippine Postal Corporation, and the
Legal Officers of the PPC-Main namely, WILFREDO B. SERRANO, MA. TERESA A.
LORICO-GONZALES, LEONARDO C. DARANTINAO, JR., HENRY C. FAUSTO, LEE P.
VICERAL, ROMAN T. COBRADO, JESSIE R. REOTUTAR, ROMUALDO L. BANAN, and
ELEN I. NAGTALON, Petitioners, v. THE COMMISSION ON AUDIT and the CORPORATE
AUDITOR FOR PHILIPPINE POSTAL CORPORATION, Respondents.
DECISION
ROMERO, J.:
In this special civil action under Rule 64 of the New Rules of Court, in relation to Rule 65
thereof, petitioners seek the reversal of the Decision 1 dated November 4, 1997 of public
respondent Commission on Audit (COA) which affirmed the disallowances made by respondent
Corporate Auditor for Philippine Postal Corporation (PPC) of the Representation and
Transportation Allowance (RATA) of certain officials of PPC. The dispositive portion of said
decision reads:chanroblesvirtuallawlibrary
"Upon all the foregoing considerations, this Commission affirms the disallowances made by the
Auditor as concurred in by the Director, Corporate Audit Office II, this Commission.
Accordingly, the instant appeal has to be, as it is hereby denied for lack of merit."cralaw
virtua1aw library
The facts are as follows:chanrob1es virtual 1aw library
On April 3, 1992, Republic Act No. 7354, otherwise known as "The Postal Service Act of 1992,"
was enacted and approved creating the Philippine Postal Corporation and defining its powers,
functions, and responsibilities.
Pursuant to the powers granted to it by the said charter, the PPC Board of Directors issued
and approved Board Resolution No. 95-50, 2 entitled "Approving the three-year progressive
increase of Representation and Travel Allowance (RATA) benefits equivalent to 40% of the
basic salary of the officials of the Philippine Postal Corporation, subject to the existing rules
and regulations," The resolution reads in part:chanrob1es virtual 1aw library

Page 208 of 492

BOARD RESOLUTION NO. 95-50

RESOLVED, as it is hereby resolved that the three year progressive increase of the . . . (RATA)
benefits of officials of the Philippine Postal Corporation . . . equivalent to 40% of their basic
salary, be approved subject to the existing rules and regulations.
RESOLVED FURTHER, that the increases of RATA for 1995 of the following officials to be
implemented in the following manner, be confirmed: . . . (c) of the 40% basic salaries of all
officials holding positions below the Assistant Postmaster Generals up to Division Managers.
RESOLVED STILL FURTHER that an additional fifty percent (50%) increase of the remaining
balance thereof be implemented in 1996;
RESOLVED STILL FURTHER that the increase of the aforesaid benefit equivalent to 40% of the
basic salary of all concerned officials be fully implemented in 1997.
x

On April 26, 1995, to implement the foregoing board resolution, then Postmaster General
Eduardo P. Pilapil issued Circular No. 95-22, 3 entitled "Guidelines Implementing Board
Resolution No. 95-50 prescribing new rates of RATA of PPC officials." To reproduce the
relevant parts of the circular:chanroblesvirtuallawlibrary:red
CIRCULAR NO. 95-22
1. The following Officials and employees are entitled to RATA:chanrob1es virtual 1aw library
x

1.6 Regional Operations Managers

1.7 Division Managers/Chiefs of equivalent
2. Payment of RATA, whether commutable or reimbursable, shall be in accordance with the
rates prescribed below for the total allowances (50/50 share for each type of
allowances):chanrob1es virtual 1aw library
Position 1995 1996 1997
x

2.7 Operations Managers

or equivalent (SG 26) P5,100 P5,400 P5,740

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2.8 Division Managers/Chiefs or equivalent

(SG 25) 4,700 4,900 5,234
(SG 24) 4,200 4,400 4,734
Meanwhile, Republic Act No. 8174, otherwise known as "The General Appropriations Act of
1996" was approved, Section 35 of which fixes the monthly RATA rates of government
officials, to wit:chanrob1es virtual 1aw library
SECTION 35. Representation and Transportation Allowances. The following officials and
those of equivalent rank as may be determined by the Department of Budget and
Management while in the actual performance of their respective functions are hereby granted
monthly commutable representation and transportation allowance payable from the
programmed appropriation provided for by their respective offices not exceeding the rates
indicated below, which shall apply to each type of allowance:chanrob1es virtual 1aw library
x

e. At P1,750 for assistant Bureau Regional directors or equivalent;

f. At P1,625 for Chief of Divisions, identified as such in the Personal Services Itemization . .
."cralaw virtua1aw library
On October 23, 1996, respondent Corporate Auditor for Philippine Postal Corporation (PPC)
served the following Notices of Disallowance (ND) on PPC:chanrob1es virtual 1aw library
(a) ND No. 96-0002-101(96) dated September 23, 1996, covering the RATA of petitioners for
the month of April 1996 in the total amount of P65,650.00.
(b) ND No. 96-0004-101(96) dated September 23, 1996 covering the RATA of petitioners for
May 1996 amounting to P65,350.00.
On December 12, 1996, the Auditor served another notice, ND No. 96-0007-101(96) dated
November 27, 1996, covering the RATA of petitioners for June 1996 in the amount of
P64,525.00.
Subsequently, respondent Auditor served other Notices of Disallowance covering the RATA
allegedly paid in excess of that authorized under Section 35, R.A. 8174.
On February 7, 1997, the new Postmaster General, Irineo V. Intia, Jr. requested respondent
Auditor to hold in abeyance the settlement of the above disallowances pending receipt of the
legal opinion they had sought from the Office of the Government Corporate Counsel (OGCC).
To this, respondent Auditor replied that the proper remedy of petitioners is appeal under
Section 37, Title VII of the COA Manual on Certificate of Settlement and Balances (CSB).
Accordingly, petitioners filed their Memorandum of Appeal with respondent Commission for the
reversal of the Auditors decision and the allowance of the implementation of PPC Circular No.

Page 210 of 492

95-22 as authorized by Board Resolution No. 96-50. They relied on the following
grounds:chanrob1es virtual 1aw library
1. Sections 21, and 22, and 25 of R. A. No 7354 (The Postal Service Act of 1992), expressly
empower the PPC to establish its own progressive compensation structure and fix the salaries
and emoluments of personnel including the grant of additional benefits like RATA without
being subjected to the rules and regulations of the Compensation and Position Classification
Office or the Salary Standardization Law (R.A. No. 6758).
2. The legal opinion of the Department of Budget and Management (DBM) dated March 14,
1996 on which the COA based its decision and which states that pursuant to Section 6 of P.D.
No. 1527, the compensation structure of PPC is subject to review and approval by the DBM, is
not correct because Section 6 of P.D. 1597 is unconstitutional as it violates the rule against
the passage of irrepealable laws.
3. Section 13 of R.A. No. 7354 categorically exempts PPC from submitting to Congress its
annual budget unless the PPC requires subsidy/guaranty of its liability from the National
Treasury.
4. Paragraph 1 of the special provisions in R.A. No. 8174 admits that corporations exempted
from the provisions of R.A. No. 6758 like PPC shall pay the salaries and allowances not in
accordance with the Salary Standardization Law.
5. RATA is included in the term "emoluments," the payment of which PPC is authorized to
make under R.A. No. 7354.
On November 4, 1997, respondent Commission rendered the decision now subject of the
instant petition. The assailed decision is reproduced in part:jgc:chanrobles.com.ph
"After a careful and judicious evaluation of the facts and pertinent laws, rules and regulations
herein obtaining, this Commission finds the appeal devoid of merit. It must be noted that
Sections 21, 22 and 25 of R.A. 7354 never intended to exempt the PPC from the ambit of R.A.
6758. What these specific sections provide, especially Section 25, is the exemption of the PPC
from the coverage of the rules and regulations of the Compensation and Position Classification
Office which relates only to the qualification, position and salary grade of the employees
concerned and not to the payment of additional benefits including the increase in the
Representation and Transportation Allowance (RATA). Section 22 which provides for a
progressive corporation (sic) structure for PPC personnel authorizes the Corporation to grant
salary increases subject to either of two conditions stated therein. As to the constitutionality of
Section 6 of P.D. No. 1587, the matter is beyond the competence of this Commission to rule
upon. Thus, the absence of a contrary ruling by competent authority, this Commission finds no
cogent reason to hold the same as being unconstitutional as alleged by herein appellants.
Insofar as the validity of the resolution fixing the allowances (e.g. RATA) of its employees by
PPCs Board of Directors is concerned, this Commission fully adopts the stand taken by the
DBM in its legal opinion, dated March 14, 1996, which states that:chanrob1es virtual 1aw
library
Accordingly, the Resolutions or Circulars of the PPC granting additional benefits or

Page 211 of 492

compensation to its employees without the requisite review and approval by the President of
the Philippines upon recommendation of the DBM is believed to be an ultra vires act of the
corporation which cannot be given legal effect and recognition. Additional benefits or
compensation that may be granted to government officials/employees require a law and may
not be done by a mere expedient of a resolution or a circular of a GOCC, as in the case of the
PPC.
The above legal opinion, according to the DBM is based on the following reasons:chanrob1es
virtual 1aw library
1. While there may be a semblance of exemption for the PPC from the rules and regulations of
the Compensation and Position Classification Bureau, such exemption is subject to the
qualification that PPCs own system of compensation and classification conforms as closely as
possible with that provided for under R.A. No. 6758.
2. Such PPC exemption should be appreciated in correlation with the provision of Section 6 of
P.D. 1597 . . .
While it is true that Section 13 of R.A. No. 7354 exempts the PPC from submitting to Congress
its annual budget unless it seeks subsidy/guaranty of its liability from the National Treasury, it
is also true that Section 18 of the same Act provides that the PPC thru its board shall submit
to both Houses of Congress, together with the Auditors Report on the relevant accounts, an
annual report generally dealing with the activities and operations of the Corporation during the
preceding year . . . The exemption under Section 13 of R.A. No. 7354 does not in any way
intend or show that the Corporation is exempt from R.A. 6758." 4
Aggrieved by the aforequoted decision, petitioners filed this petition before this Court,
assigning the following errors:chanrob1es virtual 1aw library
I. THE COMMISSION ERRED IN HOLDING THAT PPC IS NOT EXEMPT FROM THE SALARY
STANDARDIZATION LAW (R.A. NO. 6758).
II. THE COMMISSION ERRED IN CONFORMING WITH THE DBM THAT THE RESOLUTION AND
CIRCULAR OF THE PPC GRANTING ADDITIONAL BENEFITS TO ITS EMPLOYEES WITHOUT THE
REQUISITE REVIEW AND APPROVAL BY THE PRESIDENT OF THE PHILIPPINES THROUGH THE
DBM IS AN ULTRA VIRES ACT OF THE CORPORATION.
III. THE COMMISSION ERRED WHEN IT RULED THAT THE MONTHLY RATA OF PPC OFFICIALS
MUST CONFORM TO THE AMOUNTS PRESCRIBED IN SECTION 35 OF REPUBLIC ACT NO. 8174.
As to the first issue, petitioners argued that Sections 21, 22, and 25 of the PPC charter (R.A.
No. 7354) exempt it from the Salary Standardization Law or the Compensation and Position
Classification Office rules. The said provisions read:chanrob1es virtual 1aw library
SECTION 21. Powers and Functions of the Postmaster General. As the Chief Executive
Officer, the Postmaster General shall have the following powers and functions:chanrob1es
virtual 1aw library
x

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c) subject to the approval of the Board, to determine the staffing, pattern and the number of
personnel, define their duties and responsibilities, and fix their salaries and emoluments in
accordance with the approved compensation structure of the Corporation.
x

SECTION 22. Merit System. The Corporation shall establish a human resource management
system which shall govern the selection, hiring, appointment, transfer, promotion, or dismissal
of all personnel. Such system shall aim to establish professionalism and excellence at all levels
of the postal organization in accordance with sound principles of management.
A progressive compensation structure, which shall be based on job evaluation studies and
wage surveys and subject to the Boards approval, shall be instituted as an integral
component of the Corporations human resources development program. The Corporation,
however, may grant across the board salary increase or modify its compensation structure as
to result in higher salaries, subject to either of the following conditions:chanrob1es virtual 1aw
library
a) there are evidences of prior improvement in employee productivity, measured by such
quantitative indicators as mail volume per employee and delivery times.
b) a law raising the minimum wage has been enacted with application to all government
employees or has the effect of classifying some positions in the postal service as below the
floor wage.
SECTION 25. Exemption from Rules and Regulations of the Compensation and Position
Classification Office. All personnel and positions of the Corporation shall be governed by
Section 22 hereof, and as such shall be exempt from the coverage of the rules and regulations
of the Compensation and Position Classification Office. The Corporation, however, shall see to
it that its own system conforms as closely as possible with that provided for under Republic
Act No. 6758.
Petitioners averred that since the PPC has the power under Sections 21 and 22 of R.A. No.
7354 to fix its own compensation scheme and Section 25 of said charter expressly exempts it
from the rules of the Compensation and Position Classification Office, it is clear that PPC Board
Resolution No. 95-50 and PPC Circular 95-22 are valid corporate acts that can be the basis of
the payment of RATA to PPC officials without prior approval from the DBM.
As for the DBM legal opinion which was the basis for the disallowance of the payments of the
RATA, petitioners assailed the same for being erroneous. According to the DBM,
notwithstanding the exemption of PPC from the rules of CPCO granted under Section 25 of
R.A. 7354, the DBM has the power to review and approve the compensation structure of PPC
because of Section 6 of P.D. No. 1597:chanrob1es virtual 1aw library
SECTION 6. Exemption from OCPC Rules and Regulations. Agencies, positions or groups of
officials and employees of the national government, including government-owned and

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controlled corporations, who are hereafter exempted by law from OCPC coverage, shall
observe such guidelines and policies as may be issued by the President governing position
classification, salary rates, levels of allowances, project and other honoraria, overtime rates,
and other forms of compensation and fringe benefits. Exemptions notwithstanding, agencies
shall report to the President, through the Budget Commission, on their position classification
and compensation plans, policies, rates and other related details following such specifications
as may be prescribed by the President. (Emphasis supplied)
Petitioners, however, argued that Section 6, P.D. No. 1597 has already been repealed by
Section 35 of R.A. No. 7354 which reads:chanrob1es virtual 1aw library
SECTION 35. All acts, decrees, orders, executive orders, instructions, rules and regulations,
inconsistent with the provisions of this Act are repealed or modified accordingly.
They pointed out that R.A. No. 7354 (The Postal Service Act of 1992) being a special and later
law, it prevails over P.D. No. 1597, a general law which refers to all government agencies and
GOCCs covered by and those exempted from the rules of the CPCO. For these reasons,
petitioners claimed that the power of the DBM to review and approve PPCs resolutions and
circulars implementing the latters compensation plans is no longer in force.
Petitioners likewise posited that Section 6, P.D. No. 1597 has no legal effect, it being in the
nature of an irrepealable provision of law. They pointed to the phrase "agencies . . . of the
national government, including government-owned and controlled corporations, who are
hereafter exempted by law from coverage . . .," as violative of the Constitutional provision
that legislative power shall be vested in the legislature and the prohibition against the passage
of irrepealable laws. In effect, petitioners maintained, Section 6 limits the lawmaking powers
of Congress by providing for conditions to be applied to agencies or GOCCs that are yet to be
created.
Even assuming arguendo that Section 6, P.D. No. 1597 has legal effects, petitioners theorized,
it cannot be considered as requiring prior approval of the DBM since said provision only
requires the PPC to observe the guidelines on compensation schemes and to report to the
President about its position classification and compensation system.
Furthermore, petitioners asserted that scrutinizing the Senate deliberations, it is clear that the
management and budgetary system of the PPC was being taken out of the control of the DBM.
As to the applicability of Section 35 of R.A. No. 8174 limiting the amounts of RATA granted to
certain employees, petitioners argued that said provision does not apply to the monthly RATA
rates of PPC corporate officials, as PPCs budget is not covered by the Appropriations Act or
R.A. No. 8174. This, they said, is clear from Section 13 of the PPC Charter (R.A. No.
7354):chanrob1es virtual 1aw library
SECTION 13. Annual Budget. . . . Unless the Corporation shall require a subsidy and/or a
guarantee of its liability from the National Treasury, its budget for the year need not be
submitted to Congress for approval and inclusion in the General Appropriations Act.
On the other hand, in its comment, the Office of the Solicitor General argued that Section 6 of
P.D. 1597 is valid and subsisting, there having been no express or implied repeal of the

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assailed provision. Moreover, the Solicitor General explained that although Section 25 of the
PPC charter exempts the corporation from the CPCO rules and regulations, under Section 6 of
P.D. No. 1597, however, it is still required to report the details of its compensation system to
the President through the DBM. The two provisions in question are thus compatible and
reconcilable.
With respect to the argument that the PPC is exempted from the coverage of the CPCO rules
and regulations, the Solicitor General observed that the said exemption is not absolute as it
refers only to exemption from the application of rules and regulations relating to position and
compensation classification. Moreover, the Solicitor General added, the term "compensation"
in said law refers to the salary structure of government personnel and not to allowances.
From the foregoing, the issues of the present controversy may therefore be summed up as
follows: (1) whether the PPC Board of Directors can, by itself, grant through a resolution an
increase in allowances to its officials without said resolution going to the DBM for review and
approval and (2) whether the RATA granted to PPC officials falls within the amounts provided
in the General Appropriations Act.
This Court rules in the negative on both issues.
First, it is conceded that the PPC, by virtue of its charter, R.A. No. 7354, has the power to fix
the salaries and emoluments of its employees. This function, being lodged in the Postmaster
General, the same must be exercised with the approval of the Board of Directors. This is clear
from Sections 21 and 22 of said charter.
Petitioners correctly noted that since the PPC Board of Directors are authorized to approve the
Corporations compensation structure, it is also within the Boards power to grant or increase
the allowances of PPC officials or employees. As can be gleaned from Sections 10 and 17 of
P.D. No. 985 (A Decree Revising the Position Classification and Compensation System in the
National Government, and Integrating the Same), the term "compensation" includes salaries,
wages, allowances, and other benefits.
SECTION 10. The Compensation System. The Compensation System consists of (a) a Salary
Schedule; (b) a Wage Schedule; (c) policies relating to allowances, bonuses, pension plans,
and other benefits accruing to employees covered . . . (Emphasis supplied).
SECTION 17. Powers and Functions. The Budget Commission principally through the OCPC
shall, in addition to those provided under other sections of this Decree, have the following
powers and functions:chanrob1es virtual 1aw library
x

(g) Provide the required criteria and guidelines, in consultation with agency heads as may be
deemed necessary and subject to the approval of the Commissioner of Budget, for the grant of
all types of allowances and additional forms of compensation to employees in all agencies of
the government.
Besides, allowances such as RATA are included in the term "emoluments" which, under

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Section 21 of RA 7354, the Postmaster General is authorized to grant to PPC personnel with
the approval of the Board of Directors. Blacks Law Dictionary defines "emolument" as that
which is received as a compensation for services, or which is annexed to the possession of
office as salary, fees and perquisites.
The Commission on Audit was, therefore, in error when it held in its decision that "the
exemption of the PPC from the coverage of the rules and regulations of the Compensation and
Position Classification Office . . . relates only to the qualification, position and salary grade of
the employees concerned and not to the payment of additional benefits including the increase
in the Representation and Transportation Allowance (RATA)."cralaw virtua1aw library
While the PPC Board of Directors admittedly acted within its powers when it granted the RATA
increases in question, the same should have first been reviewed by the DBM before they were
implemented. Sections 21, 22, and 25 of the PPC charter should be read in conjunction with
Section 6 of P.D. No. 1597:chanrob1es virtual 1aw library
SECTION 6. Exemption from OCPC Rules and Regulations. Agencies, positions or groups of
officials and employees of the national government, including government-owned and
controlled corporations, who are hereafter exempted by law from OCPC coverage, shall
observe such guidelines and policies as may be issued by the President governing position
classification, salary rates, levels of allowances, project and other honoraria, overtime rates,
and other forms of compensation and fringe benefits. Exemptions notwithstanding, agencies
shall report to the President, through the Budget Commission, on their position classification
and compensation plans, policies, rates and other related details following such specifications
as may be prescribed by the President. (Emphasis supplied).
Contrary to petitioners position, said provision still applies and has not been repealed either
expressly or impliedly. Their reliance on the general repealing clause in Section 35 5 of R.A.
No. 7354 is erroneous. The holding of this Court in Mecano v. COA 6 is instructive: "The
question that should be asked is: What is the nature of this repealing clause? It is certainly not
an express repealing clause because it fails to identify or designate the act or acts that are
intended to be repeated. Rather, it is an example of a general repealing provision, as stated in
Opinion No. 73, s. 1991. It is a clause which predicates the intended repeal under the
condition that a substantial conflict must be found in existing and prior acts. The failure to add
a specific repealing clause indicates that the intent was not to repeal any existing law, unless
an irreconcilable inconsistency and repugnancy exist in the terms of the new and old laws.
This latter situation falls under the category of an implied repeal.
As the Solicitor General correctly observed, there is no express repeal of Section 6 P.D. No.
1597 by R.A. No. 7354. Neither is there an implied repeal thereof because there is no
irreconcilable conflict between the two laws. On the one hand, Section 25 of R.A. No. 7354
provides for the exemption of PPC from the rules and regulations of the CPCO. On the other
hand, Section 6 of P.D. 1597 requires PPC to report to the President, through the DBM, the
details of its salary and compensation system. Thus, while the PPC is allowed to fix its own
personnel compensation structure through its Board of Directors, the latter is required to
follow certain standards in formulating said compensation system. One such standard is
specifically stated in Section 25 of R.A. No. 7354:chanrob1es virtual 1aw library
SECTION 25. Exemption from Rules and Regulations of the Compensation and Position

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Classification Office. All personnel and positions of the Corporation shall be governed by
Section 22 hereof, and as such shall be exempt from the coverage of the rules and regulations
of the Compensation and Position Classification Office. The Corporation, however, shall see to
it that its own system conforms as closely as possible with that provided for under Republic
Act No. 6758. (Emphasis supplied)
To sustain petitioners claim that it is the PPC and PPC alone that should ensure that its
compensation system conforms as closely as possible with that of R.A. No. 6758 will result in
an invalid delegation of legislative power. If such interpretation is adopted, the law would, in
effect, be granting PPC unfettered discretion to fix its compensation structure, something the
legislature could not have intended.
As the Solicitor General put it, Section 6 of P.D. No. 1597 is the "detail" intended to fill the gap
in such laws as R.A. No. 7354 in order to ensure that delegation of legislative authority will be
"canalized within banks to keep it from overflowing."cralaw virtua1aw library
It should be emphasized that the review by the DBM of any PPC resolution affecting the
compensation structure of its personnel should not be interpreted to mean that the DBM can
dictate upon the PPC Board of Directors and deprive the latter of its discretion on the matter.
Rather, the DBMs function is merely to ensure that the action taken by the Board of Directors
complies with the requirements of the law, specifically, that PPCs compensation system
"conforms as closely as possible with that provided for under R.A. No. 6758."cralaw virtua1aw
library
Section 25 of R.A. No. 7354 and Section 6 of P.D. No. 1597 can thus be read together and
harmonized to give effect to both provisions. This court has held that statutes should be
construed in light of the objective to be achieved and the evil or mischief to be suppressed,
and they should be given such construction as will advance the object, suppress the mischief,
and secure the benefits intended. 7
Clearly, therefore, no implied repeal can be deduced in this case. Worth reiterating is the rule
in statutory construction that repeals by implication are not favored. When statutes are in pari
materia, they should be construed together. A law cannot be deemed repealed unless it is
clearly manifest that the legislature so intended it.chanroblesvirtuallawlibrary
As regards petitioners argument that P.D. No. 1597 cannot be given any legal effect as it is
unconstitutional because it is in the nature of an irrepealable law, suffice it to say that this
Court will refrain from striking down a law if the case can be decided on other grounds. The
Court will not touch the issue of unconstitutionality unless it is the very lis mota of the case.
Thus, the Supreme Court held: "It is a well-established rule that a court should not pass upon
a constitutional question and decide a law to be unconstitutional or invalid, unless such
question is raised by the parties and that when it is raised, if the record also presents some
other ground upon which the court may raise its judgment, that course will be adopted and
the constitutional question will be left for consideration until such question will be
unavoidable." 8
With respect to the second issue of whether the RATA granted to PPC officials must fall within
the amounts provided for in the General Appropriations Act, as stated earlier, we rule in the
negative.

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Section 13 of the PPC charter expressly provides for PPCs fiscal autonomy. Thus, unless PPC
requires a subsidy and/or a guarantee of its liability from the National Treasury, its annual
budget need not be submitted to Congress for approval and included in the General
Appropriations Act.
The intention of the lawmakers here is to promote the efficiency of the postal service by
allowing the PPC to use its profits from its operations to upgrade its facilities and equipment
and provide incentives for its personnel to render better services. Specifically, fiscal autonomy
allows the PPC to attract and keep professional and competent people within its ranks.
To sum up, the PPC being a government-owned and controlled corporation with an original
charter, it falls within the scope of the Civil Service. 9 Thus, as regards personnel matters, the
Civil Service Law applies to the PPC. Its Board of Directors is authorized under its charter to
formulate and implement its own system of compensation for its personnel, including the
payment of RATA. In the exercise of such power, it is not required to observe the rules and
regulations of the Compensation and Position Classification Office. Neither it is required to
follow strictly the amounts provided for in the General Appropriations Act as its annual budget
is not covered thereby. However, since the PPC charter expressly exempts it from the rules
and regulations of the CPCO, said Board is not required to follow the CPCOs Guidelines in
formulating a compensation system for the PPC employees. 10
In other words, the general rule is that the PPC is covered by the Civil Service Law as regards
all personnel matters except those affecting the compensation structure and position
classification in the corporation which are left to the PPC Board of Directors to formulate in
accordance with law. It must be stressed that the Boards discretion on the matter of
personnel compensation is not absolute as the same must be exercised in accordance with the
standard laid down by law, that is, its compensation system, including the allowances granted
by the Board to PPC employees, must strictly conform with that provided for other
government agencies under R.A. No. 6758 (Salary Standardization Law) in relation to the
General Appropriations Act. To ensure such compliance, the resolutions of the Board affecting
such matters should first be reviewed and approved by the Department of Budget and
Management pursuant to Section 6 of P.D. No. 1597.
WHEREFORE, premises considered, the petition is hereby DISMISSED and the assailed
decision dated November 4, 1997 is AFFIRMED with the following
MODIFICATIONS:chanrob1es virtual 1aw library
(a) The exemption of the Philippine Postal Corporation from the coverage of the rules and
regulations of the Compensation and Position Classification Office includes, not only the fixing
of the qualification, position, and salary grade of the Corporations employees but also the
payment of additional benefits, including increases in their Representation and Transportation
Allowance;
(b) The Representation and Transportation Allowance granted to the concerned employees of
the Corporation need not be limited to the amounts provided for in the General Appropriations
Act; and
(c) However, the compensation system set up must conform as closely as possible with that

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provided for other government agencies under R.A. No. 6758 in relation to the General
Appropriations Act and must, moreover, be reviewed and approved by the Department of
Budget and Management pursuant to Section 6 of P.D. No. 1597.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Pardo, Buena, Gonzaga-Reyes and
Ynares-Santiago, JJ., concur.
Puno, Panganiban, Quisumbing and Purisima, JJ., concur in the result.
Vitug, J., I concur but except from the view that the compensation system requires the
approval of DBM.
Endnotes:

1. Rollo, p. 30.
2. ibid., p. 31.
3. ibid., p. 32.
4. ibid., pp. 28-30.
5. Sec. 35. All acts, decrees, orders, instructions, rules and regulations, inconsistent with the
provisions of this Act are repealed or modified accordingly.
6. 216 SCRA 500 (1992).
7. Paat v. Court of Appeals, 266 SCRA 167 (1997).
8. Sotto v. Commission on Elections, 76 Phil. 516 (1946).
9. Sec. 6, Book V, Title I, Subtitle A, Revised Administrative Code of 1987.
10. Sec. 25, R.A. No. 7354.

Page 219 of 492

FIRST DIVISION
[G.R. No. L-8321. March 26, 1956.]
BRAULIO QUIMSON, Plaintiff-Appellant, vs. ROMAN OZAETA, ET AL., Defendants-Appellees.

DECISION
MONTEMAYOR, J.:
This is an appeal from the decision of the Court of First Instance of Quezon City, dismissingPlaintiffs complaint for the
recovery of accrued salaries, first taken to the Court of Appeals, and later certified to us for the reason that said
appeal involved only questions of law. The facts are simple and clear, and as found by the trial court may be briefly
stated as follows:chanroblesvirtuallawlibrary
The Rural Progress Administration (later referred to as Administration) is a public corporation created for the purpose
of acquiring landed estates through purchase, expropriation or lease, and later sub-letting or sub-leasing the same to
tenants or occupants. The officials and employees of the Administration may be considered as civil service employees
embraced in the classified service. Sometime in 1947, one Aurelio R. Pea, then comptroller of the Administration
and performing duties of auditor in representation of the Auditor General recommended to the Board of Directors of
the Administration that for purposes of economy municipal treasurers be appointed agent-collectors of the
Administration, and this recommendation was adopted by the Board of Director. Thereafter, Faustino Aguilar, then
manager of the Administration, prepared the appointment for the post of agent- collector on a part-time basis in
favor of Plaintiff-Appellant Braulio Quimson, with compensation of P720 per annum, the appointment to take effect
upon assumption of duty. At the time, Quimson was deputy provincial treasurer and municipal treasurer of Caloocan,
Rizal. Defendant-AppelleeRoman Ozaeta who by reason of his office of Secretary of Justice was acting as Chairman of
the Board of Directors, signed the appointment and forwarded the papers to the President through the Secretary of
Finance for approval. Without waiting for the said approval Quimson assumed his position on May 6, 1948 and
rendered service as agent-collector of the Administration until October 21, 1949, inclusive, when he was informed
that because of the disapproval of his appointment, his services were considered terminated. There were several
objections to his appointment, among them that of the Auditor General on the ground that since Quimson was
deputy provincial treasurer and municipal treasurer of Caloocan, his additional compensation as agent-collector
would contravene the Constitutional prohibition against double compensation. The Commissioner of Civil Service said
that he would offer no objection to the additional compensation of Quimson as agent-collector provided it was
authorized in a special provision exempting the case from the inhibition against the payment of extra compensation
in accordance with section 259 of the Revised Administrative Code. In this connection, it may be stated that this
section of the Administrative Code provides that in the absence of special provision, no officer or employee in any
branch of the Government service shall receive additional compensation on account of the discharge of duties
pertaining to another or to the performance of public service of whatever nature. Faustino Aguilar as manager of the
Administration asked for the reconsideration of the ruling of the Auditor General, alleging that the appointment of
the Plaintiff was for reasons of economy and efficiency, but the Auditor General denied the request stating that
reasons of economy and efficiency are not valid grounds for evading the constitutional prohibition against additional
compensation in the absence of a law specifically authorizing such compensation. So, the services of Quimson as

Page 220 of 492

agent-collector of the Administration were terminated. But R. Gonzales Lloret, then manager of the Administration on
October 18, 1949, inquired from the auditor of the Administration whether Quimson could be paid for the period of
actual service rendered by him from May 10, 1948, and the said auditor gave the opinion that it could not be done for
the reason that in his opinion the appointment extended to Quimson was clearly illegal and the Administration may
not be obliged to pay him for the services rendered since it was a violation of section 3, Article XII, of the Constitution
prohibiting double compensation. At the same time he expressed the opinion that under section 691 of the Revised
Administrative Code the appointing official who made the illegal appointment should be made liable for the payment
of salary of the appointee, and consequently, Plaintiff should claim his salary for services rendered against said
appointing officer. It is highly possible that this opinion was what induced and prompted Quimson to file the present
case against Roman Ozaeta who, as Chairman of the Board, signed his appointment, and the members of the said
Board, namely:chanroblesvirtuallawlibrary Faustino Aguilar, Vicente Fragante, Roman Fernandez and Pedro Magsalin.
The action was initiated in the Justice of the Peace Court which dismissed the complaint. On appeal to the Court of
First Instance of Quezon City, as already stated, the complaint was also dismissed.
For purposes of reference we are reproducing section 691 of the Revised Administrative Code, to
wit:chanroblesvirtuallawlibrary
SEC. 691. Payment of person employed contrary to law. Liability of chief of office. No person employed in the
classified service contrary to law or in violation of the civil service rules shall be entitled to receive pay from the
Government; chan roblesvirtualawlibrarybut the chief of the bureau or office responsible for such unlawful
employment shall be personally liable for the pay that would have accrued had the employment been lawful, and the
disbursing officer shall make payment to the employee of such amount from the salary of the officers so liable.
In our opinion, the present appeal can be resolved without much difficulty. Section 691 of the Administrative Code
above reproduced refers and applies to unlawful employment and not to unlawful compensation. The appointment
or employment of Plaintiff-Appellant Quimson as agent-collector was not in itself unlawful because there is no
incompatibility between said appointment and his employment as deputy provincial treasurer and municipal
treasurer. In fact, he was appointed agent-collector by reason of his office, being a municipal treasurer. There is no
legal objection to a government official occupying two government offices and performing the functions of both as
long as there is no incompatibility. Clerks of court are sometimes appointed or designated as provincial sheriffs.
Municipal Treasurers like Plaintiffare often appointed and designated as deputy provincial treasurer. The Department
Secretaries are often designated to act as Chairman or members of Board of Directors of government corporations.
The objection or prohibition refers to double compensation and not to double appointments and performance of
functions of more than one office.
According to law, under certain circumstances, the President may authorize double compensation in some cases, such
as government officials acting as members with compensation in government examining boards like the bar
examinations, or department secretaries acting as members of Board of Directors of government corporations, and in
such cases the prohibition against double compensation is not observed. This undoubtedly, was the reason why the
appointment of Quimson had to be coursed through different offices like the Department of Finance, the Civil Service
Commission, and the Office of the Auditor General to the President for approval. If the President approves the double
compensation, well and good. The appointee whose appointment may then be regarded as valid from the beginning
could receive extra compensation. If it is disapproved, then the appointment will have to be withdrawn or cancelled,
unless of course, the appointee was willing to serve without compensation, in which case there could be no valid
objection. This is another proof that the appointment of Quimson was not illegal or unlawful. It was only the double
compensation that was subject to objection. The trouble was that Plaintiff herein assumed office without waiting for
the result of the action to be taken upon his appointment and compensation by the President and the different
offices which the appointment had to go through.
Furthermore, Quimson would appear to have assumed office without notifying the official who appointed him,
namely, Roman Ozaeta. Plaintiff, therefore, took the risk or hazard of not being paid for any service that he may
render in the meantime. His counsel now contends that the appointing official should have known that double
Page 221 of 492

compensation was prohibited by law and therefore he should not have appointed Quimson as agent-collector. That is
seemingly a plausible stand. But it should be borne in mind that there are exceptions to the prohibition; chan
roblesvirtualawlibrarythat the very comptroller of the Administration, representing the Auditor General,
recommended the appointment of municipal treasurers, like the Plaintiff, as agent-collectors, and
so Defendant Ozaeta and the other members of the Board of Directors may have believed that the Chief Executive
might approve Plaintiffs appointment. Besides, it may also be said that Quimson himself, a Deputy Provincial
Treasurer and Municipal Treasurer, a financial officer expected to be tersed in government disbursements and
payments of salaries and compensation should have also known and undoubtedly he knew about that prohibition
against double compensation. He should have known that his appointment had to go over or through several
obstacles and hazards, but he took the risk and began serving as agent-collector before his appointment was
approved. We are afraid that he has no one to blame but himself.
Finding no reversible error in the decision appealed from, the same is hereby affirmed, with costs.
Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L. and Endencia, JJ.,
concur.

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EN BANC
[G.R. No. 139792. November 22, 2000.]
ANTONIO P. SANTOS, Petitioner, v. THE HONORABLE COURT OF APPEALS,
METROPOLITAN AUTHORITY, now known as METROPOLITAN MANILA DEVELOPMENT
AUTHORITY, and THE CIVIL SERVICE COMMISSION, Respondents.
DECISION
DAVIDE, JR., C.J.:
In this petition for review on certiorari petitioner assails the decision of 19 August 1999 of the
Court of Appeals 1 in CA-G.R. SP No. 48301, which held that petitioners separation pay under
Section 11 of R.A. No. 7924 should be limited to the number of years of his service in the
Metropolitan Manila Authority (MMA) only, excluding his years of service as judge of the
Metropolitan Trial Court (MeTC) of Quezon City for which he has already been given retirement
gratuity and pension.chanrob1es virtua1 1aw 1ibrary
The undisputed facts are as follows:chanrob1es virtual 1aw library
On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, and he
thereafter assumed office. After the military-backed EDSA revolt, petitioner was reappointed
to the same position.
On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. 910, 2 as
amended, and received his retirement gratuity under the law for his entire years in the
government service; and five years thereafter he has been regularly receiving a monthly
pension.
On 2 December 1993, petitioner re-entered the government service. He was appointed
Director III of the Traffic Operation Center of the MMA. His appointment was approved by the
Civil Service Commission (CSC).
On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and renamed
it as Metropolitan Manila Development Authority (MMDA). Section 11 thereof
reads:chanrob1es virtual 1aw library
SECTION 11. Transitory Provisions. To prevent disruption in the delivery of basic urban

Page 223 of 492

services pending the full implementation of the MMDAs organizational structure and staffing
pattern, all officials and employees of the interim MMA shall continue to exercise their duties
and functions and receive their salaries and allowances until they shall have been given notice
of change of duties and functions, and of being transferred to another office or position.
x

The civil service laws, rules and regulations pertinent to the displacement of personnel
affected by this Act shall be strictly enforced. The national government shall provide such
amounts as may be necessary to pay the benefits accruing to displaced employees at the rate
of one and one-fourth (1) months salary for every year of service: Provided, That, if
qualified for retirement under existing retirement laws, said employees may opt to receive the
benefits thereunder.chanrob1es virtua1 1aw 1ibrary
On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372
approving the Rules and Regulations Implementing R.A. No. 7924. Pursuant thereto, the
MMDA issued Resolution No. 16, series of 1996, which, inter alia, authorized the payment of
separation benefits to the officials and employees of the former MMA who would be separated
as a result of the implementation of R.A. No. 7924.
On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him that in view
of his "voluntary option to be separated from the service" his services would automatically
cease effective at the close of office hours on 15 September 1996, and that he would be
entitled to "separation benefits equivalent to one and one-fourth (1) monthly salary for
every year of service as provided under Section 11 of the MMDA Law."cralaw virtua1aw library
In view of some doubt or confusion as to the extent of his separation benefits, petitioner
submitted a Position Paper wherein he asserted that since the retirement gratuity he received
under R.A. No. 910, as amended, is not an additional or double compensation, all the years of
his government service, including those years in the Judiciary, should be credited in the
computation of his separation benefits under R.A. No. 7924. The Assistant Manager for
Finance of the MMDA referred the Position Paper to the Regional Office of the CSC-NCR.
On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down an opinion that
the payment of petitioners separation pay must be in accordance with Civil Service Resolution
No. 92-063, pertinent portions of which read:chanrob1es virtual 1aw library
[T]he payment of separation/[retirement] benefits cannot be subject to the prohibition against
the [sic] double compensation in cases when officers and employees who were previously
granted said benefits are rehired or reemployed in another government Agency or Office.
Thus, there is no need for separated employees to refund the separation/retirement benefits
they received when subsequently reemployed in another government agency or office.
. . . This being so, while an employee who was paid separation/retirement benefits is not
required to refund the same once reemployed in the government service, as aforestated, for
reasons of equity however, it would be proper and logical that said separation/retirement
benefits should nevertheless be deducted from the retirement/[separation] pay to be received
by the employee concerned. Moreover, in this instance, the employee concerned has the

Page 224 of 492

option either to refund his separation/retirement benefits and claim his gross
retirement/separation pay without any deduction corresponding to his separation pay
received, or not [to] refund his separation/retirement pay but suffer a deduction of his
retirement/separation gratuity for the total amount representing his previous
separation/retirement pay received.
His motion for reconsideration having been denied, petitioner elevated the opinion of Director
Acebedo to the CSC.chanrob1es virtua1 1aw 1ibrary
On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the opinion of
Director Acebedo and dismissing petitioners appeal. Citing Chaves v. Mathay 3 it held that
petitioner cannot be paid retirement benefits twice one under R.A. No. 910, as amended,
and another under R.A. No. 7924 for the same services he rendered as MeTC Judge. He can
only exercise one of two options in the computation of his separation pay under R.A. 7924.
These options are (1) to refund the gratuity he received under R.A. No. 910, as amended,
after he retired from the MeTC and get the full separation pay for his entire years in the
government, that is 9 years and 2 months with the MeTC plus two (2) years and eight (8)
months for his services as Director III in the defunct MMA, at the rate of one and one-fourth
salary for every year of service pursuant to MMDA Memorandum dated 30 August 1996; or (2)
to retain the gratuity pay he received for his services as MeTC Judge but an equivalent amount
shall be deducted from the separation benefits due from the former MMA for his entire
government service.
On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying petitioners motion for
reconsideration. Accordingly, petitioner filed with the Court of Appeals a petition to set aside
these Resolutions.
On 19 August 1999, the Court of Appeals promulgated its decision, now challenged in this
case. It held that the CSC was "correct in dismissing petitioners appeal from the opinion of
Director Acebedo." It ratiocinated as follows:chanrob1es virtual 1aw library
There is no specific rule of law which applies to petitioners case. Nevertheless, the Court finds
it equitable to deny his claim for payment of separation pay at the rate of one and one-fourth
(1) months salary for every year of his service in government, that is, inclusive of the
number of years he served as Judge of the Metropolitan Trial Court of Manila [sic].
Petitioner already received and is continually receiving gratuity for his years of service as a
Metropolitan Trial Court Judge. Equity dictates that he should no longer be allowed to receive
further gratuity for said years of service in the guise of separation pay.
Suffice it to state that upon his retirement from his office as a Judge, petitioner has already
closed a chapter of his government service. The State has already shown its gratitude for his
services when he was paid retirement benefits under Republic Act No. 901 [sic]. For that is
what retirement benefits are for. Rewards [are] given to an employee who has given up the
best years of his life to the service of his country (Govt. Service Insurance System v. Civil
Service Commission, 245 SCRA 179, 188).
Now, the state again wishes to show its gratitude to petitioner by awarding him separation pay
for his services as a director of the Metro Manila Authority (MMA), another chapter of

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petitioners government service which has come to a close by the reorganization of the MMA
into the Metropolitan Manila Development Authority.chanrob1es virtua1 1aw 1ibrary
The Court, in limiting the computation of petitioners separation pay to the number of years of
his service at the MMA, merely is implementing the ruling in "Chavez, Sr. v. Mathay" (37 SCRA
776), which ruling, if not actually in point, is nevertheless applicable owing to its "commonsense consideration." Said ruling reads:jgc:chanrobles.com.ph
"The common-sense consideration stated by Mr. Justice J.B.L. Reyes for the Court in Espejo,
that if a retiree is being credited with his years of service under his first retirement in
computing his gratuity under his second retirement, it is but just that the retirement gratuity
received by him under his first retirement should also be charged to his account, manifestly
govern the case at bar. It is but in accordance with the rule consistently enunciated by the
Court as in Anciano v. Otadoy, affirming Borromeo, that claims for double retirement or
pension such as petitioners, would run roughshod over the well-settled rule that in the
absence of an express legal exception, pension and gratuity laws should be so construed as to
preclude any person from receiving double pension. (p. 780, Emphasis supplied)
The case at bench is not, strictly speaking, about double pension. It is, however, about the
interpretation of a gratuity law, viz., Section 11 of Republic Act No. 7924 which awards
separation pay to those government employees who were displaced by the reorganization of
the MMA into the MMDA, which should be construed to preclude a government employee from
receiving double gratuity for the same years of service.
We affirm the assailed judgment. We agree with the Court of Appeals and the Civil Service
Commission that for the purpose of computing or determining petitioners separation pay
under Section 11 of R.A. No. 7924, his years of service in the Judiciary should be excluded and
that his separation pay should be solely confined to his services in the MMA.
In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation
pay at the rate of "one and one-fourth (1) months of salary for every year of service" cannot
by any stretch of logic or imagination be interpreted to refer to the total length of service of an
MMA employee in the government, i.e., to include such service in the government outside the
MMA. Since it allows the grant of separation pay to employees who were to be displaced
thereby the separation pay can be based only on the length of service in the MMA. The
displacement amounted to an abolition of the office or position of the displaced employees,
such as that of petitioner. The rule is settled that Congress may abolish public offices. Such a
power is a consequent prerogative of its power to create public offices. 4 However, the power
to abolish is subject to the condition that it be exercised in good faith. 5 The separation
partook of the nature of a disturbance of compensation; hence, the separation pay must relate
only to the employment thus affected.
Second, petitioner himself must have realized that Section 11 does not allow the tacking in of
his previous government service. If he were convinced that it does he could have instead
applied for retirement benefits, since by adding his years of service in the MMA to his previous
years of service in the Government he could have retired under the third paragraph of Section
11, which pertinently reads:chanrob1es virtual 1aw library
Provided, That, if qualified for retirement under existing retirement laws, said employee may

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opt to receive the benefits thereunder.chanrob1es virtua1 1aw 1ibrary

Third, after the approval of his optional retirement on 1 April 1992, petitioner was fully paid of
his retirement gratuity under R.A. No. 910, as amended; and five years thereafter he has
been receiving a monthly pension.
The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of
the Constitution, which provides:chanrob1es virtual 1aw library
Pensions or gratuities shall not be considered as additional, double, or indirect compensation.
This provision simply means that a retiree receiving pension or gratuity can continue to
receive such pension or gratuity even if he accepts another government position to which
another compensation is attached. 6
Indeed, the retirement benefits which petitioner had received or has been receiving under R.A.
No. 910, as amended, do not constitute double compensation. He could continue receiving the
same even if after his retirement he had been receiving salary from the defunct MMA as
Director III thereof. This is but just because said retirement benefits are rewards for his
services as MeTC Judge, while his salary was his compensation for his services as Director III
of the MMA.
However, to credit his years of service in the Judiciary in the computation of his separation
pay under R.A. No. 7924 notwithstanding the fact that he had received or has been receiving
the retirement benefits under R.A. No. 910, as amended, would be to countenance double
compensation for exactly the same services, i.e., his services as MeTC Judge. Such would run
counter to the policy of this Court against double compensation for exactly the same services.
7 More important, it would be in violation of the first paragraph of Section 8 of Article IX-B of
the Constitution, which proscribes additional, double, or indirect compensation. Said provision
reads:chanrob1es virtual 1aw library
No elective or appointive public officer or employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law . . . .
Section 11 of R.A. No. 7924 does not specifically authorize payment of additional
compensation for years of government service outside of the MMA.chanrob1es virtua1 1aw
1ibrary
WHEREFORE, finding no reversible error in the judgment appealed from, the petition in this
case is DENIED for want of merit, and the decision of 19 August 1999 of the Court of Appeals
in CA-G.R. SP No. 48301 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.

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Endnotes:

1. Rollo, 31-41. Per Barcelona, R., J., with Demetria, D., and Gozo-Dadole, M., JJ., concurring.
2. Not R.A.. No. 901 as stated in the challenged decision of the Court of Appeals (Rollo, 31), or
R.A. No. 601 as stated in Resolution No. 97-4266 of the Civil Service Commission (Rollo, 50
and 52). R.A. No. 910, as amended, was further amended by R.A. No. 5095 and P.D. No.
1438.
3. 37 SCRA 776 [1971].
4. Manalang v. Quitoriano, 94 Phil. 903 [1954]; Rodriguez v. Montinola, 94 Phil. 964 [1954];
Castillo v. Pajo, 103 Phil. 515 [1958]; Ulep v. Carbonell, 4 SCRA 375 [1962]; Llanto v.
Dimaporo, 16 SCRA 599 [1966]; Canonizado v. Aguirre, G.R. No. 133132, 25 January 2000.
5. Cruz v. Primicias, 23 SCRA 998 [1968]; Canonizado v. Aguirre, supra.
6. II JOAQUIN BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES (A
Commentary) 341 (1988 ed.).
7. Espejo v. Auditor General, 97 Phil. 216 [1955]; Borromeo v. GSIS, 110 Phil. [1960];
Anciano v. Otadoy, 27 SCRA 200 [1969]; Chavez v. Mathay, supra note 3.

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EN BANC
[G.R. No. 100113. September 3, 1991.]
RENATO L. CAYETANO, Petitioner, v. CHRISTIAN MONSOD, HON. JOVITO R.
SALONGA, COMMISSION ON APPOINTMENTS, and HON. GUILLERMO CARAGUE in his
capacity as Secretary of Budget and Management, Respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
DECISION
PARAS, J.:
We are faced here with a controversy of far-reaching proportions While ostensibly only legal
issues are involved, the Courts decision in this case would indubitably have a profound effect
on the political aspect of our national existence.
The 1987 Constitution provides in Section 1(1), Article IX-C:jgc:chanrobles.com.ph
"There shall be a Commission on Elections composed of a Chairman and six Commissioners
who shall be natural-born citizens of the Philippines and, at the time of their appointment, at
least thirty-five years of age, holders of a college degree, and must not have been candidates
for any elective position in the immediately preceding elections. However, a majority thereof,
including the Chairman, shall be members of the Philippine Bar who have been engaged in the
practice of law for at least ten years." (Emphasis supplied)
The aforequoted provision is patterned after Section 1(1), Article XII-C of the 1973
Constitution which similarly provides:jgc:chanrobles.com.ph
"There shall be an independent Commission on Elections composed of a Chairman and eight
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age and holders of a college degree. However, a
majority thereof, including the Chairman, shall be members of the Philippine Bar who have
been engaged in the practice of law for al least ten years." (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of
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law as a legal qualification to an appointive office.chanrobles virtual lawlibrary

Black defines "practice of law" as:jgc:chanrobles.com.ph
"The rendition of services requiring the knowledge and the application of legal principles and
technique to serve the interest of another with his consent. It is not limited to appearing in
court, or advising and assisting in the conduct of litigation, but embraces the preparation of
pleadings, and other papers incident to actions and special proceedings, conveyancing, the
preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for them in matters connected with the
law. An attorney engages in the practice of law by maintaining an office where he is held out
to be an attorney, using a letterhead describing himself as an attorney, counseling clients in
legal matters, negotiating with opposing counsel about pending litigation, and fixing and
collecting fees for services rendered by his associate." (Blacks Law Dictionary, 3rd ed.).
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and
Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the
practice of law when he:jgc:chanrobles.com.ph
". . . for valuable consideration engages in the business of advising person, firms, associations
or corporations as to their rights under the law, or appears in a representative capacity as an
advocate in proceedings pending or prospective, before any court, commissioner, referee,
board, body, committee, or commission constituted by law or authorized to settle
controversies and there, in such representative capacity performs any act or acts for the
purpose of obtaining or defending the rights of their clients under the law. Otherwise stated,
one who, in a representative capacity, engages in the business of advising clients as to their
rights under the law, or while so engaged performs any act or acts either in court or outside of
court for that purpose, is engaged in the practice of law." (State ex. rel. Mckittrick v. C.S.
Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852).
This Court in the case of Philippine Lawyers Association v. Agrava, (105 Phil. 173, 176-177)
stated:jgc:chanrobles.com.ph
"The practice of law is not limited to the conduct of cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to actions and special proceedings, the
management of such actions and proceedings on behalf of clients before judges and courts,
and in addition, conveying. In general, all advice to clients, and all action taken for them in
matters connected with the law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a mortgage,
enforcement of a creditors claim in bankruptcy and insolvency proceedings, and conducting
proceedings in attachment, and in matters of estate and guardianship have been held to
constitute law practice, as do the preparation and drafting of legal instruments, where the
work done involves the determination by the trained legal mind of the legal effect of facts and
conditions." (5 Am. Jr. p. 262, 263). (Emphasis supplied)
"Practice of law under modern conditions consists in no small part of work performed outside
of any court and having no immediate relation to proceedings in court. It embraces
conveyancing, the giving of legal advice on a large variety of subjects, and the preparation
and execution of legal instruments covering an extensive field of business and trust relations

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and other affairs. Although these transactions may have no direct connection with court
proceedings, they are always subject to become involved in litigation. They require in many
aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity
for adaptation to difficult and complex situations. These customary functions of an attorney or
counselor at law bear an intimate relation to the administration of justice by the courts. No
valid distinction, so far as concerns the question set forth in the order, can be drawn between
that part of the work of the lawyer which involves appearance in court and that part which
involves advice and drafting of instruments in his office. It is of importance to the welfare of
the public that these manifold customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and acting at all times under the heavy
trust obligations to clients which rests upon all attorneys." (Moran, Comments on the Rules of
Court, Vol. 3 [1953 ed.], p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E.
313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139, 144).
(Emphasis ours).
The University of the Philippines Law Center in conducting orientation briefing for new lawyers
(1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy,
counseling and public service.
"One may be a practicing attorney in following any line of employment in the profession. If
what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the
active practice of their profession, and he follows some one or more lines of employment such
as this he is a practicing attorney at law within the meaning of the statute." (Barr D. Cardell,
155 NW 312).
Practice of law means any activity, in or out of court, which requires the application of law,
legal procedure, knowledge, training and experience. "To engage in the practice of law is to
perform those acts which are characteristics of the profession. Generally, to practice law is to
give notice or render any kind of service, which device or service requires the use in any
degree of legal knowledge or skill." (111 ALR 23).
The following records of the 1986 Constitutional Commission show that it has adopted a liberal
interpretation of the term "practice of law." chanrobles virtual lawlibrary
"MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do
during our review of the provisions on the Commission on Audit. May I be allowed to make a
very brief statement?
"THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
"MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit.
Among others, the qualifications provided for by Section 1 is that They must be Members of
the Philippine Bar I am quoting from the provision who have been engaged in the
practice of law for at least ten years."
"To avoid any misunderstanding which would result in excluding members of the Bar who are
now employed in the COA or Commission on Audit, we would like to make the clarification that

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this provision on qualifications regarding members of the Bar does not necessarily refer or
involve actual practice of law outside the COA. We have to interpret this to mean that as long
as the lawyers who are employed in the COA are using their legal knowledge or legal talent in
their respective work within COA, then they are qualified to be considered for appointment as
members or commissioners, even chairman, of the Commission on Audit.
"This has been discussed by the Committee on Constitutional Commissions and Agencies and
we deem it important to take it up on the floor so that this interpretation may be made
available whenever this provision on the qualifications as regards members of the Philippine
Bar engaging in the practice of law for at least ten years is taken up.
"MR. OPLE. Will Commissioner Foz yield to just one question.
"MR. FOZ. Yes, Mr. Presiding Officer.
"MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the
requirement of a law practice that is set forth in the Article on the Commission on Audit?"
MR. FOZ. We must consider the fact that the work of COA although it is auditing, will
necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are
employed in COA now would have the necessary qualifications in accordance with the
provision on qualifications under our provisions on the Commission on Audit. And, therefore,
the answer is yes.
"MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice
of law.
"MR. FOZ. Yes, Mr. Presiding Officer.
"MR. OPLE. Thank you."cralaw virtua1aw library
. . . (Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman
and two Commissioners of the Commission on Audit (COA) should either be certified public
accountants with not less than ten years of auditing practice, or members of the Philippine Bar
who have been engaged in the practice of law for at least ten years. (Emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways synonymous with
the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a
fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in
Law Careers [VGM Career Horizons: Illinois), 1986], p. 15]).
At this point, it might be helpful to define private practice. The term, as commonly
understood, means "an individual or organization engaged in the business of delivering legal
services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of
lawyers are called "firms." The firm is usually a partnership and members of the firm are the
partners. Some firms may be organized as professional corporations and the members called
shareholders. In either case, the members of the firm are the experienced attorneys. In most

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firms, there are younger or more inexperienced salaried attorneys called "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is essentially
tautologies, unhelpful defining the practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of
law is defined as "the performance of any acts . . . in or out of court, commonly understood to
be the practice of law. (State Bar Assn v. Connecticut Bank & Trust Co., 145 Conn. 222, 140
A. 2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A. 2d 623, 626
[1941]). Because lawyers perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too global to be workable. (Wolfram,
op. cit.)
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly
familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers
spend little time in courtrooms, and a large percentage spend their entire practice without
litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the
litigating lawyers role colors much of both the public image and the self-perception of the
legal profession. (Ibid.).chanrobles.com:cralaw:red
In this regard thus, the dominance of litigation in the public mind reflects history, not reality.
(Ibid.). Why is this so? Recall that the late Alexander Sycip, a corporate lawyer, once
articulated on the importance of a lawyer as a business counselor in this wise: "Even today,
there are still uninformed laymen whose concept of an attorney is one who principally tries
cases before the courts. The members of the bench and bar and the informed laymen such as
businessmen, know that in most developed societies today, substantially more legal work is
transacted in law offices than in the courtrooms. General practitioners of law who do both
litigation and non-litigation work also know that in most cases they find themselves spending
more time doing what [is] loosely describe[d] as business counseling than in trying cases. The
business lawyer has been described as the planner, the diagnostician and the trial lawyer, the
surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided
where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).
In the course of a working day the average general practitioner will engage in a number of
legal tasks, each involving different legal doctrines, legal skills, legal processes, legal
institutions, clients, and other interested parties. Even the increasing numbers of lawyers in
specialized practice will usually perform at least some legal services outside their specialty.
And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task
or role such as advice-giving to an importantly different one such as representing a client
before an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the relatively
rare types a litigator who specializes in this work to the exclusion of much else. Instead, the
work will require the lawyer to have mastered the full range of traditional lawyer skills of client
counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find
that the new skills of evaluation and mediation are both effective for many clients and a
source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in

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very important ways, at least theoretically, so as to remove from it some of the salient
features of adversarial litigation. Of these special roles, the most prominent is that of
prosecutor. In some lawyers work the constraints are imposed both by the nature of the client
and by the way in which the lawyer is organized into a social unit to perform that work. The
most common of these roles are those of corporate practice and government legal service.
(Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging
trends in corporate law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in
corporate law practice. Lawyers and other professional groups, in particular those members
participating in various legal-policy decisional contexts, are finding that understanding the
major emerging trends in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an accurate
understanding of the nature and implications of the corporate law research function
accompanied by an accelerating rate of information accumulation. The recognition of the need
for such improved corporate legal policy formulation, particularly "model-making" and
contingency planning," has impressed upon us the inadequacy of traditional procedures in
many decisional contexts.
In a complex legal problem the mass of information to be processed, the sorting and weighing
of significant conditional factors, the appraisal of major trends, the necessity of estimating the
consequences of given courses of action, and the need for fast decision and response in
situations of acute danger have prompted the use of sophisticated concepts of information
flow theory, operational analysis, automatic data processing, and electronic computing
equipment. Understandably, an improved decisional structure must stress the predictive
component of the policy-making process, wherein a model", of the decisional context or a
segment thereof is developed to test projected alternative courses of action in terms of
futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in predicting and projecting
the trends of the law, the subject of corporate finance law has received relatively little
organized and formalized attention in the philosophy of advancing corporate legal education.
Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained primarily in the
law can be improved through an early introduction to multi-variable decisional contexts and
the various approaches for handling such problems. Lawyers, particularly with either a
masters or doctorate degree in business administration or management, functioning at the
legal policy level of decision-making now have some appreciation for the concepts and
analytical techniques of other professions which are currently engaged in similar types of
complex decision-making.
Truth to tell, many situations involving corporate finance problems would require the services
of an astute attorney because of the complex legal implications that arise from each and every
necessary step in securing and maintaining the business issue raised. (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).

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In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado

de campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed
of the tycoons and magnates of business and industry.
Despite the growing number of corporate lawyers, many people could not explain what it is
that a corporate lawyer does. For one, the number of attorneys employed by a single
corporation will vary with the size and type of the corporation. Many smaller and some large
corporations farm out all their legal problems to private law firms. Many others have in-house
counsel only for certain matters. Other corporation have a staff large enough to handle most
legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a
corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal
research, tax laws research, acting out as corporate secretary (in board meetings),
appearances in both courts and other adjudicatory agencies (including the Securities and
Exchange Commission), and in other capacities which require an ability to deal with the
law.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the
business of the corporation he is representing. These include such matters as determining
policy and becoming involved in management. (Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from the action, or
not understanding how ones work actually fits into the work of the organization. This can be
frustrating to someone who needs to see the results of his work first hand. In short, a
corporate lawyer is sometimes offered this fortune to be more closely involved in the running
of the business.
Moreover, a corporate lawyers services may sometimes be engaged by a multinational
corporation (MNC). Some large MNCs provide one of the few opportunities available to
corporate lawyers to enter the international law field. After all, international law is practiced in
a relatively small number of companies and law firms. Because working in a foreign country is
perceived by many as glamorous, this is an area coveted by corporate lawyers. In most cases,
however, the overseas jobs go to experienced attorneys while the younger attorneys do their
"international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,
1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow
the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails
to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer
is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No
longer are we talking of the traditional law teaching method of confining the subject study to
the Corporation Code and the Securities Code but an incursion as well into the intertwining
modern management issues.
Such corporate legal management issues deal primarily with three (3) types of learning: (1)

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acquisition of insights into current advances which are of particular significance to the
corporate counsel; (2) an introduction to usable disciplinary skills applicable to a corporate
counsels management responsibilities; and (3) a devotion to the organization and
management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a shared area linking
them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme
for the corporate counsels total learning.
Some current advances in behavior and policy sciences affect the counsels role. For that
matter, the corporate lawyer reviews the globalization process, including the resulting
strategic repositioning that the firms he provides counsel for are required to make, and the
need to think about a corporations strategy at multiple levels. The salience of the nation-state
is being reduced as firms deal both with global multinational entities and simultaneously with
sub-national governmental units. Firms increasingly collaborate not only with public entities
but with each other often with those who are competitors in other arenas.
Also, the nature of the lawyers participation in decision-making within the corporation is
rapidly changing. The modern corporate lawyer has gained a new role as a stockholder in
some cases participating in the organization and operations of governance through
participation on boards and other decision-making roles. Often these new patterns develop
alongside existing legal institutions and laws are perceived as barriers. These trends are
complicated as corporations organize for global operations. (Emphasis supplied).
The practising lawyer of today is familiar as well with governmental policies toward the
promotion and management of technology. New collaborative arrangements for promoting
specific technologies or competitiveness more generally require approaches from industry that
differ from older, more adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other countries. In Europe,
Esprit, Eureka and Race are examples of collaborative efforts between governmental and
business Japans MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel comprises a
distinct group within the managerial structure of all kinds of organizations. Effectiveness of
both long-term and temporary groups within organizations has been found to be related to
indentifiable factors in the group-context interaction such as the groups actively revising their
knowledge of the environment, coordinating work with outsiders, promoting team
achievements within the organization. In general, such external activities are better predictors
of team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the
managerial mettle of corporations are challenged. Current research is seeking ways both to
anticipate effective managerial procedures and to understand relationships of financial liability
and insurance considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos:chanrob1es
virtual 1aw library
First System Dynamics. The field of systems dynamics has been found an effective tool for

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new managerial thinking regarding both planning and pressing immediate problems. An
understanding of the role of feedback loops, inventory levels, and rates of flow, enable users
to simulate all sorts of systematic problems physical, economic, managerial, social, and
psychological. New programming techniques now make the systems dynamics principles more
accessible to managers including corporate counsels. (Emphasis supplied).
Second Decision Analysis. This enables users to make better decisions involving complexity
and uncertainty. In the context of a law department, it can be used to appraise the settlement
value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in
managing a portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can be used directly by
parties and mediators in all kinds of negotiations. All integrated set of such tools provide
coherent and effective negotiation support, including hands-on on instruction in these
techniques. A simulation case of an international joint venture may be used to illustrate the
point.
[Be this as it may,] the organization and management of the legal function, concern three
pointed areas of consideration, thus:chanrob1es virtual 1aw library
Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of
the general counsels responsibilities. They differ from those of remedial law. Preventive
lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights
for such legal entities at that time when transactional or similar facts are being considered and
made.chanrobles lawlibrary : rednad
Managerial Jurisprudence. This is the framework within which are undertaken those activities
of the firm to which legal consequences attach. It needs to be directly supportive of this
nations evolving economic and organizational fabric as firms change to stay competitive in a
global, interdependent environment. The practice and theory of "law" is not adequate today to
facilitate the relationships needed in trying to make a global economy work.
Organization and Functioning of the Corporate Counsels Office. The general counsel has
emerged in the last decade as one of the most vibrant subsets of the legal profession. The
corporate counsel hear responsibility for key aspects of the firms strategic issues, including
structuring its global operations, managing improved relationships with an increasingly
diversified body of employees, managing expanded liability exposure, creating new and varied
interactions with public decision-makers, coping internally with more complex make or by
decisions.
This whole exercise drives home the thesis that knowing corporate law is not enough to make
one a good general corporate counsel nor to give him a full sense of how the legal system
shapes corporate activities. And even if the corporate lawyers aim is not the understand all of
the laws effects on corporate activities, he must, at the very least, also gain a working
knowledge of the management issues if only to be able to grasp not only the basic legal
"constitution" or make-up of the modern corporation. "Business Star, The Corporate Counsel,"
April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than a passing

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knowledge of financial law affecting each aspect of their work. Yet, many would admit to
ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of
professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business Star, "Corporate Finance law," Jar. 11, 1989, p.
4).chanrobles law library : red
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position
of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on
Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod
does not possess the required qualification of having been engaged in the practice of law for at
least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as
Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he
assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of Monsods
nomination, petitioner as a citizen and taxpayer, filed the instant petition for Certiorari and
Prohibition praying that said confirmation and the consequent appointment of Monsod as
Chairman of the Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations
of 1960 with a grade of 86.55%. He has been a dues paying member of the Integrated Bar of
the Philippines since its inception in 1972-73. He has also been paying his professional license
fees as lawyer for more than ten years. (p. 124, Rollo).
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod
worked in the law office of his father. During his stint in the World Bank Group (1963-1970),
Monsod worked as an operations officer for about two years in Costa Rica and Panama, which
involved getting acquainted with the laws of member-countries, negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines
in 1970, he worked with the Meralco Group, served as chief executive officer of an investment
bank and subsequently of a business conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or chief executive officer. As former
Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsods work involved
being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings
before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former
Co-Chairman of the Bishops Businessmens Conference for Human Development, has worked
with the under privileged sectors, such as the farmer and urban poor groups, in initiating,
lobbying for and engaging in affirmative action for the agrarian reform law and lately the
urban land reform bill. Monsod also made use of his legal knowledge as a member of the
Davide Commission, a quasi-judicial body, which conducted numerous hearings (1990) and as
a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on
Accountability of Public Officers, for which he was cited by the President of the Commission,
Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government functions
with individual freedoms and public accountability and the party-list system for the House of
Representative." (pp. 128-129 Rollo) (Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

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In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately
constituted to meet the various contingencies that arise during a negotiation. Besides top
officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the
finance manager, and an operations officer (such as an official involved in negotiating the
contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating
Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the
Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a countrys Constitution; it lays down the law as far
as the loan transaction is concerned. Thus, the meat of any Loan Agreement can be
compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrowers
representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p.
13)
In the same vein, lawyers play an important role in any debt restructuring program. For aside
from performing the tasks of legislative drafting and legal advising, they score national
development policies as key factors in maintaining their countries sovereignty. (Condensed
from the work paper, entitled "Wanted: Development Lawyers for Developing Nations,"
submitted by L. Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development of Nations at the
Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center
on August 26-31, 1973). (Emphasis supplied).
Loan concessions and compromises, perhaps even more so than purely re negotiation policies,
demand expertise in the law of contracts, in legislation and agreement drafting and in re
negotiation. Necessarily, a sovereign lawyer may work with an international business specialist
or an economist in the formulation of a model loan agreement. Debt restructuring contract
agreements contain such a mixture of technical language that they should be carefully drafted
and signed only with the advise of competent counsel in conjunction with the guidance of
adequate technical support personnel. (See International Law Aspects of the Philippine
External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321).
(Emphasis supplied).
A critical aspect of sovereign debt restructuring/contract construction is the set of terms and
conditions which determines the contractual remedies for a failure to perform one or more
elements of the contract. A good agreement must not only define the responsibilities of both
parties, but must also state the recourse open to either party when the other fails to discharge
an obligation. For a complete debt restructuring represents a devotion to that principle which
in the ultimate analysis is sine qua non for foreign loan agreements an adherence to the
rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice
Oliver Wendell Holmes, Jr. once said: They carry no banners, they beat no drums; but where
they are, men learn that bustle and bush are not the equal of quiet genius and serene
mastery. (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated
Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term "practice of law", particularly the
modern concept of law practice, and taking into consideration the liberal construction intended
by the framers of the Constitution, Atty. Monsod s past work experiences as a lawyer-

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economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of

contracts, and a lawyer-legislator of both the rich and the poor verily more than satisfy the
constitutional requirement that he has been engaged in the practice of law for at least ten
years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court
said:chanrobles.com : virtual law library
"Appointment is an essentially discretionary power and must be performed by the officer in
which it is vested according to his best lights, the only condition being that the appointee
should possess the qualifications required by law. If he does, then the appointment cannot be
faulted on the ground that there are others better qualified who should have been preferred.
This is a political question involving considerations of wisdom which only the appointing
authority can decide." (Emphasis supplied).
No less emphatic was the Court in the case of Central Bank v. Civil Service Commission, 171
SCRA 744) where it stated:jgc:chanrobles.com.ph
"It is well-settled that when the appointee is qualified, as in this case, and all the other legal
requirements are satisfied, the Commission has no alternative but to attest to the
appointment in accordance with the Civil Service Law. The Commission has no authority to
revoke an appointment on the ground that another person is more qualified for a particular
position. It also has no authority to direct the appointment of a substitute of its choice. To do
so would be an encroachment on the discretion vested upon the appointing authority. An
appointment is essentially within the discretionary power of whomsoever it is vested, subject
to the only condition that the appointee should possess the qualifications required by law."
(Emphasis supplied).
The appointing process in a regular appointment as in the case at bar, consists of four (4)
stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of
a commission (in the Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent appointment; and (4)
acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081,
October 14, 1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of
Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article
C, Article IX of the Constitution which provides:jgc:chanrobles.com.ph
"The Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without re appointment. Of those
first appointed, three Members shall hold office for seven years, two Members for five years,
and the last Members for three years, without re appointment. Appointment to any vacancy
shall be only for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity."cralaw virtua1aw library
Anent Justice Teodoro Padillas separate opinion, suffice it to say that his definition of the
practice of law is the traditional or stereotyped notion of law practice, as distinguished from
the modern concept of the practice of law, which modern connotation is exactly what was

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intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padillas
definition would require generally a habitual law practice, perhaps practiced two or three times
a week and would outlaw say, law practice once or twice a year for ten consecutive years.
Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written
opinion, I made use of a definition of law practice which really means nothing because the
definition says that law practice." . . is what people ordinarily mean by the practice of law."
True I cited the definition but only by way of sarcasm as evident from my statement that the
definition of law practice by "traditional areas of law practice is essentially tautologous" or
defining a phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations, most
individuals, in making use of the law, or in advising others on what the law means, are
actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that
Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practicing law for over
ten years. This is different from the acts of persons practicing law, without first becoming
lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President of the
Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly
doubt. For one thing, how can an action or petition be brought against the President? And
even assuming that he is indeed disqualified, how can the action be entertained since he is the
incumbent President?
We now proceed:chanrob1es virtual 1aw library
The Commission onTHE BASIS OF evidence submitted during the public hearings on
Monsods confirmation, implicitly determined that he possessed the necessary qualifications as
required by law. The judgment rendered by the Commission in the exercise of such an
acknowledged power is beyond judicial interference except only upon a clear showing of a
grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court
interfere with the Commissions judgment. In the instant case, there is no occasion for the
exercise of the Courts corrective power, since no abuse, much less a grave abuse of
discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance
of the writs prayed, for has been clearly shown.chanrobles lawlibrary : rednad
Additionally, consider the following:chanrob1es virtual 1aw library
(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme
Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the
answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the Commission has
confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to
confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court would still

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reverse the U.S. Senate.

Finally, one significant legal maxim is:jgc:chanrobles.com.ph
"We must interpret not by the letter that killeth, but by the spirit that giveth life."cralaw
virtua1aw library
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked
Delilah (who was Samsons beloved) for help in capturing Samson. Delilah agreed on condition
that
"No blade shall touch his skin;
No blood shall flow from his veins."cralaw virtua1aw library
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod
burning white-hot two or three inches away from in front of Samsons eyes. This blinded the
man. Upon hearing of what had happened to her beloved, Delilah was beside herself with
anger, and fuming with righteous fury, Accused the procurator of reneging on his word. The
procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?"
The procurator was clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED. SO ORDERED.
Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.
Melencio-Herrera, J., concurs in the result.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.).
Sarmiento, J., is on leave.
Regalado and Davide, Jr., JJ., took no part.
Separate Opinions
NARVASA, J., concurring:chanrob1es virtual 1aw library
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result;
it does not appear to me that there has been an adequate showing that the challenged
determination by the Commission on Appointments that the appointment of respondent
Monsod as Chairman of the Commission on Elections should, on the basis of his stated
qualifications and after due assessment thereof, be confirmed was attended by error so
gross as to amount to grave abuse of discretion and consequently merits nullification by this
Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I
therefore vote to DENY the petition.
PADILLA, J., dissenting:chanrob1es virtual 1aw library

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The records of this case will show that when the Court first deliberated on the Petition at bar, I
voted not only to require the respondents to comment on the Petition, but I was the sole vote
for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming
the position of COMELEC Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience
and even embarrassment to all parties concerned were the Court to finally decide for
respondent Monsods disqualification. Moreover, a reading of the Petition then in relation to
established jurisprudence already showed prima facie that respondent Monsod did not possess
the needed qualification, that is, he had not engaged in the practice of law for at least ten (10)
years prior to his appointment as COMELEC Chairman.
After considering carefully respondent Monsods comment, I am even more convinced that the
constitutional requirement of" practice of low for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because,
ultimately, the core issue to be resolved in this petition is the proper construal of the
constitutional provision requiring a majority of the membership of COMELEC, including the
Chairman thereof to "have been engaged in the practice of law for at least ten (10) years."
(Art IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of
constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral
Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and
inescapable obligation of interpreting the Constitution and defining constitutional
boundaries."cralaw virtua1aw library
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among
these are that he must have been "engaged in the practice of law for at least ten (10) years."
It is the bounded duty of this Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual
performance or application of knowledge as distinguished from mere possession of knowledge;
it connotes an active, habitual, repeated or customary action. 1 To "practice" law, or any
profession for that matter, means, to exercise or pursue an employment or profession
actively, habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a
nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant
who works as a clerk, cannot be said to practice his profession as an accountant. In the same
way, a lawyer who is employed as a business executive or a corporate manager, other than as
head or attorney of a Legal Department of a corporation or a governmental agency, cannot be
said to be in the practice of law.
As aptly held by this Court in the case of People v. Villanueva: 2
"Practice is more than an isolated appearance for it consists in frequent or customary actions,
a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v.
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M S. 768). Practice of law to fall within the prohibition
of statute has been interpreted as customarily or habitually holding ones self out to the public
as a lawyer and demanding payment for such services (State v. Bryan, 4 S.E. 522, 98 N.C.

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644, 647.) . . ." (Emphasis supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it
prepared, enumerated several factors determinative of whether a particular activity
constitutes "practice of law." It states:jgc:chanrobles.com.ph
"1. Habituality. The term practice of law implies customarily or habitually holding ones self
out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E.
522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law
office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the
oath of office as a lawyer before a notary public, and files a manifestation with the Supreme
Court informing it of his intention to practice law in all courts in the country (People v. De
Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v.
Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the
active and continued practice of the legal profession and that his professional services are
available to the public for compensation, as a service of his livelihood or in consideration of his
said services. (People v. Villanueva, supra). Hence, charging for services such as preparation
of documents involving the use of legal knowledge and skill is within the term practice of law
(Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. Peoples
Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper
interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin,
supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If
compensation is expected, `all advice to clients and all action taken for them in matters
connected with the law; are practicing law. (Elwood Fitchette Et. Al., v. Arthur C. Taylor, 94AL.R. 356-359).
3. Application of law, legal principle, practice, or procedure which calls for legal knowledge,
training and experience is within the term `practice of law. (Martin supra).
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of
lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires
knowledge of law but involves no attorney-client relationship, such as teaching law or writing
law books or articles, he cannot be said to be engaged in the practice of his profession or a
lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30)." 3
The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten
(10) years at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:chanrob1es virtual 1aw library
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?

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3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT
LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he
did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC
Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly
considered activities peculiar to the practice of law, like the drafting of legal documents and
the rendering of legal opinion or advice, such were isolated transactions or activities which do
not qualify his past endeavors as "practice of law." To become engaged in the practice of law,
there must be a continuity, or a succession of acts. As observed by the Solicitor General in
People v. Villanueva: 4
"Essentially, the word private practice of law implies that one must have presented himself to
be in the active and continued practice of the legal profession and that his professional
services are available to the public for a compensation, as a source of his livelihood or in
consideration of his said services."cralaw virtua1aw library
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not
qualified for the position of COMELEC Chairman for not having engaged in the practice of law
for at least ten (10) years prior to his appointment to such position.
CRUZ, J., dissenting:chanrob1es virtual 1aw library
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the
same. There are certain points on which I must differ with him while of course respecting his
viewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the
respondent simply because his nomination has been confirmed by the Commission on
Appointments. In my view, this is not a political question that we are barred from resolving.
Determination of the appointees credentials is made on the basis of the established facts, not
the discretion of that body. Even if it were, the exercise of that discretion would still be subject
to our review.chanrobles virtual lawlibrary
In Luego, which is cited in the ponencia, what was involved was the discretion of the
appointing authority to choose between two claimants to the same office who both possessed
the required qualifications. It was that kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack
of the required qualifications, I see no reason why we cannot disqualify an appointee simply
because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate
proceeding notwithstanding that he has been found acceptable by no less than the
enfranchised citizenry. The reason is that what we would be examining is not the wisdom of

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his election but whether or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have
been too sweeping in its definition of the phrase "practice of law" as to render the qualification
practically toothless. From the numerous activities accepted as embraced in the term, I have
the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the
practice of law as long as his activities involve the application of some law, however
peripherally. The stock broker and the insurance adjuster and the realtor could come under
the definition as they deal with or give advice on matters that are likely "to become involved in
litigation."cralaw virtua1aw library
The lawyer is considered engaged in the practice of law even if his main occupation is another
business and he interprets and applies some law only as an incident of such business. That
covers every company organized under the Corporation Code and regulated by the SEC under
P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity
that is not affected by some law or government regulation the businessman must know about
and observe. In fact, again going by the definition, a lawyer does not even have to be part of
a business concern to be considered a practitioner. He can be so deemed when, on his own,
he rents a house or buys a car or consults a doctor as these acts involve his knowledge and
application of the laws regulating such transactions. If he operates a public utility vehicle as
his main source of livelihood, he would still be deemed engaged in the practice of law because
he must obey the Public Service Act and the rules and regulations of the Energy Regulatory
Board.
The ponencia quotes an American decision defining the practice of law as the "performance of
any acts . . . in or out of court, commonly understood to be the practice of law," which tells us
absolutely nothing. The decision goes on to say that "because lawyers perform almost every
function known in the commercial and governmental realm, such a definition would obviously
be too global to be workable."cralaw virtua1aw library
The effect of the definition given in the ponencia is to consider virtually every lawyer to be
engaged in the practice of law even if he does not earn his living, or at least part of it, as a
lawyer. It is enough that his activities are incidentally (even if only remotely) connected with
some law, ordinance, or regulation. The possible exception is the lawyer whose income is
derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent
pretensions.
The respondents credentials are impressive, to be sure, but they do not persuade me that he
has been engaged in the practice of law for ten years as required by the Constitution. It is
conceded that he has been engaged in business and finance, in which areas he has
distinguished himself, but as an executive and economist and not as a practicing lawyer. The
plain fact is that he has occupied the various positions listed in his resume by virtue of his
experience and prestige as a businessman and not as an attorney-at-law whose principal
attention is focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the
Constitutional Commission (together with non-lawyers like farmers and priests) and was a
member of the Davide Commission, he has not proved that his activities in these capacities
extended over the prescribed 10-year period of actual practice of the law. He is doubtless
eminently qualified for many other positions worthy of his abundant talents but not as

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Chairman of the Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must
regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:chanrob1es virtual 1aw library
When this petition was filed, there was hope that engaging in the practice of law as a
qualification for public office would be settled one way or another in fairly definitive terms.
Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in
the practice of law (with one of these 5 leaving his vote behind while on official leave but not
expressing his clear stand on the matter); 4 categorically stating that he did not practice law;
2 voting in the result because there was no error so gross as to amount to grave abuse of
discretion; one of official leave with no instructions left behind on how he viewed the issue;
and 2 not taking part in the deliberations and the decision.chanrobles law library
There are two key factors that make our task difficult. First is our reviewing the work of a
constitutional Commission on Appointments whose duty is precisely to look into the
qualifications of persons appointed to high office. Even if the Commission errs, we have no
power to set aside error. We can look only into grave abuse of discretion or whimsically and
arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms
of executive ability, proficiency in management, educational background, experience in
international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a
specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never
engaged in the practice of law for even one year. He is a member of the bar but to say that he
has practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the
law, if he has not engaged in an activity where membership in the bar is a requirement I fail
to see how he can claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will
we have if there main occupation is selling real estate, managing a business corporation,
serving in fact-finding committee, working in media, or operating a farm with no active
involvement in the law, whether in Government or private practice, except that in one joyful
moment in the distant past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The
deliberate choice of words shows that the practice envisioned is active and regular, not
isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be
"engaged" in an activity for ten years requires committed participation in something which is
the result of ones decisive choice. It means that one is occupied and involved in the
enterprise; one is obliged or pledged to carry it out with intent and attention during the ten-

Page 247 of 492

year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at
least ten years. In fact, if appears that Mr. Monsod has never practiced law except for an
alleged one year period after passing the bar examinations when he worked in his fathers law
firm. Even then his law practice must have been extremely limited because he was also
working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during
that period. How could he practice law in the United States while not a member of the Bar
there?
The professional life of the respondent follows:jgc:chanrobles.com.ph
"1.15.1 Respondent Monsods activities since his passing the Bar examinations in 1961 consist
of the following:chanrob1es virtual 1aw library
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin
American Department; Division Chief, South Asia and Middle East, International Finance
Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities
Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated
companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following
companies:chanrob1es virtual 1aw library
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUN systems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation

Page 248 of 492

Member of the Board of the Following:chanrob1es virtual 1aw library

a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation"
(Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod
has given the law enough attention or a certain degree of commitment and participation as
would support in all sincerity and candor the claim of having engaged in its practice for at
least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of
giving legal advice of legal services, he was the one receiving that advice and those services
as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged
in the practice of law" with the use of legal knowledge in various fields of endeavor such as
commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such
knowledge would be helpful.chanrobles lawlibrary : rednad
I regret that I cannot join in playing fast and loose with a term, which even an ordinary
layman accepts as having a familiar and customary well-defined meaning. Every resident of
this country who has reached the age of discernment has to know, follow, or apply the law at
various times in his life. Legal knowledge is useful if not necessary for the business executive,
legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor,
and student to name only a few. And yet, can these people honestly assert that as such, they
are engaged in the practice of law?.
The Constitution requires having been "engaged in the practice of law for at least ten years."

Page 249 of 492

It is not satisfied with having been "a member of the Philippine bar for at least ten years.."
Some American courts have defined the practice of law, as follows:jgc:chanrobles.com.ph
"The practice of law involves not only appearance in court in connection with litigation but also
services rendered out of court, and it includes the giving of advice or the rendering of any
services requiring the use of legal skill or knowledge, such as preparing a will, contract or
other instrument, the legal effect of which, under the facts and conditions involved, must be
carefully determined. People ex rel. Chicago Bar Assn v. Tinkoff, 399 III. 282, 77 N.E.2d 693;
People ex rel. Illinois State Bar Assn v. Peoples Stock Yards State Bank, 344 Ill. 462, 176
N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes
the practice of law.Practicing law has been defined as Practicing as an attorney or counselor
at law according to the laws and customs of our courts, is the giving of advice or rendition of
any sort of service by any person, firm or corporation when the giving of such advice or
rendition of such service requires the use of any degree of legal knowledge or skill. Without
adopting that definition, we referred to it as being substantially correct in People ex rel .
Illinois State Bar Assn v. Peoples Stock Yards State Bank, 344 III. 462, 176 N.E. 901."
(People v. Schafer, 87 N.E. 2d 773, 776).
For ones actions to come within the purview of practice of law they should not only be
activities peculiar to the work of a lawyer, they should also be performed, habitually,
frequently or customarily, to wit:chanrob1es virtual 1aw library
x

"Respondents answers to questions propounded to him were rather evasive. He was asked
whether or not he ever prepared contracts for the parties in real-estate transactions where he
was not the procuring agent. He answered: Very seldom. In answer to the question as to how
many times he had prepared contracts for the parties during the twenty-mine years of his
business, he said: I have no idea. When asked if it would be more than half a dozen times his
answer was I suppose. Asked if he did not recall making the statement to several parties that
he had prepared contracts in a large number of instances, he answered: I dont recall exactly
what was said. When asked if he did not remember saying that he had made a practice of
preparing deeds, mortgages and contracts and charging a fee to the parties therefor in
instances where he was not the broker in the deal, he answered: Well, I dont believe so, that
is not a practice. Pressed further for an answer as to his practice in preparing contracts and
deeds for parties where he was not the broker, he finally answered: I have done about
everything that is on the books as far as real estate is concerned.
x

Respondent takes the position that because he is a real-estate broker he has a lawful right to
do any legal work in connection with real-estate transactions, especially in drawing of realestate contracts, deeds, mortgages, notes and the like. There is no doubt but that he has
engaged in these practices over the years and has charged for his services in that

Page 250 of 492

". . . An attorney, in the most general sense, is a person designated or employed by another
to act in his stead; an agent; more especially, one of a class of persons authorized to appear
and act for suitors or defendants in legal proceedings. Strictly, these professional persons are
attorneys at law, and non-professional agents are properly styled attorneys in fact; but the
single word is much used as meaning an attorney at law. A person may be an attorney in facto
for another, without being an attorney at law. Abb. Law Dict.Attorney. A public attorney, or
attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and
defend actions in such court on the retainer of clients.The principal duties of an attorney are
(1) to be true to the court and to his client; (2) to manage the business of his client with care,
skill, and integrity; (3) to keep his client informed as to the state of his business; (4) to keep
his secrets confided to him as such. . . . His rights are to be justly compensated for his
services. Bouv. Law Dict. tit.Attorney. The transitive verb practice, as defined by Webster,
means to do or perform frequently, customarily, or habitually; to perform by a succession of
acts, as, to practice gaining; . . . to carry on in practice, or repeated action; to apply, as a
theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or
medicine, etc. . . ." (State v. Bryan, S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of
acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109
[1965]):chanroblesvirtualawlibrary
x

". . . Practice is more than an isolated appearance, for it consists in frequent or customary
actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise
(State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the
prohibition of statute has been interpreted as customarily or habitually holding ones self out
to the public, as a lawyer and demanding payment for such services. . . ." (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a
required component of the meaning of practice of law in a Memorandum prepared and issued
by it, to wit:jgc:chanrobles.com.ph
"1. Habituality. The term practice of law implies customarily or habitually holding ones self
out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E.
522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law
office for the general practice of law (U S. v. Noy Bosque, 8 Phil. 146), or when one takes the
oath of office as a lawyer before a notary public, and files a manifestation with the Supreme
Court informing it of his intention to practice law in all courts in the country (People v. De
Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v.
Villanueva, 14 SCRA log citing State v. Cotner, 127, p. 1, 87 Kan, 864)." (Rollo, p. 115).

Page 251 of 492

While the career as a businessman of respondent Monsod may have profited from his legal
knowledge, the use of such legal knowledge is incidental and consists of isolated activities
which do not fall under the denomination of practice of law. Admission to the practice of law
was not required for membership in the Constitutional Commission or in the Fact-Finding
Commission on the 1989 Coup Attempt. Any specific legal activities which may have been
assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign
corporations in the Philippines which do not categorize the foreign corporations as doing
business in the Philippines. As in the practice of law, doing business also should be active and
continuous. Isolated business transactions or occasional, incidental and casual transactions are
not within the context of doing business. This was our ruling in the case of Antam
Consolidated, Inc. v. Court of Appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional
Commission may possess the background, competence, integrity, and dedication, to qualify for
such high offices as President, Vice-President, Senator, Congressman or Governor but the
Constitution in prescribing the specific qualification of having engaged in the practice of law for
at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be
confirmed for that office. The Constitution charges the public respondents no less than this
Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of
discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissents.
Endnotes:

PADILLA, J., dissenting:chanrob1es virtual 1aw library

1. Websters 3rd New International Dictionary.
2. 14 SCRA 109.
3. Commission on Appointments Memorandum dated 25 June 1991 RE: WHAT CONSTITUTES
PRACTICE OF LAW, pp. 6-7.
4. 14 SCRA 109.

Page 252 of 492

EN BANC
[G.R. No. 93867 : December 18, 1990.]
192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as
ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS, Respondent.
DECISION
CRUZ, J.:
The petitioner is challenging the designation by the President of the Philippines of Associate
Commissioner Haydee B. Yorac as Acting Chairman of the Commission on Elections, in place of
Chairman Hilario B. Davide, who had been named chairman of the fact-finding commission to
investigate the December 1989 coup d' etat attempt.
The qualifications of the respondent are conceded by the petitioner and are not in issue in this
case. What is the power of the President of the Philippines to make the challenged designation
in view of the status of the Commission on Elections as an independent constitutional body
and the specific provision of Article IX-C, Section 1(2) of the Constitution that "(I)n no case
shall any Member (of the Commission on Elections) be appointed or designated in a temporary
or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President
Elpidio Quirino designated the Solicitor General as acting member of the Commission on
Elections and the Court revoked the designation as contrary to the Constitution. It is also
alleged that the respondent is not even the senior member of the Commission on Elections,
being outranked by Associate Commissioner Alfredo E. Abueg, Jr.:-cralaw
The petitioner contends that the choice of the Acting Chairman of the Commission on Elections
is an internal matter that should be resolved by the members themselves and that the
intrusion of the President of the Philippines violates their independence. He cites the practice
in this Court, where the senior Associate Justice serves as Acting Chief Justice in the absence
of the Chief Justice. No designation from the President of the Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is necessary in the case
of the Supreme Court because the temporary succession cited is provided for in Section 12 of
the Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for the Court of
Appeals. There is no such arrangement, however, in the case of the Commission on Elections.
The designation made by the President of the Philippines should therefore be sustained for
reasons of "administrative expediency," to prevent disruption of the functions of the COMELEC.

Page 253 of 492

Expediency is a dubious justification. It may also be an overstatement to suggest that the

operations of the Commission on Elections would have been disturbed or stalemated if the
President of the Philippines had not stepped in and designated an Acting Chairman. There did
not seem to be any such problem. In any event, even assuming that difficulty, we do not
agree that "only the President (could) act to fill the hiatus," as the Solicitor General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional
Commissions as "independent." Although essentially executive in nature, they are not under
the control of the President of the Philippines in the discharge of their respective functions.
Each of these Commissions conducts its own proceedings under the applicable laws and its
own rules and in the exercise of its own discretion. Its decisions, orders and rulings are
subject only to review on Certiorari by this Court as provided by the Constitution in Article IXA, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes under that
discretion. That discretion cannot be exercised for it, even with its consent, by the President of
the Philippines.
A designation as Acting Chairman is by its very terms essentially temporary and therefore
revocable at will. No cause need be established to justify its revocation. Assuming its validity,
the designation of the respondent as Acting Chairman of the Commission on Elections may be
withdrawn by the President of the Philippines at any time and for whatever reason she sees fit.
It is doubtful if the respondent, having accepted such designation, will not be estopped from
challenging its withdrawal.chanrobles virtual law library
It is true, as the Solicitor General points out, that the respondent cannot be removed at will
from her permanent position as Associate Commissioner. It is no less true, however, that she
can be replaced as Acting Chairman, with or without cause, and thus deprived of the powers
and perquisites of that temporary position.
The lack of a statutory rule covering the situation at bar is no justification for the President of
the Philippines to fill the void by extending the temporary designation in favor of the
respondent. This is still a government of laws and not of men. The problem allegedly sought to
be corrected, if it existed at all, did not call for presidential action. The situation could have
been handled by the members of the Commission on Elections themselves without the
participation of the President, however well-meaning.
In the choice of the Acting Chairman, the members of the Commission on Elections would
most likely have been guided by the seniority rule as they themselves would have appreciated
it. In any event, that choice and the basis thereof were for them and not the President to
make.
The Court has not the slightest doubt that the President of the Philippines was moved only by
the best of motives when she issued the challenged designation. But while conceding her
goodwill, we cannot sustain her act because it conflicts with the Constitution. Hence, even as
this Court revoked the designation in the Bautista case, so too must it annul the designation in
the case at bar.
The Constitution provides for many safeguards to the independence of the Commission on
Elections, foremost among which is the security of tenure of its members. That guaranty is not
available to the respondent as Acting Chairman of the Commission on Elections by designation
of the President of the Philippines.

Page 254 of 492

WHEREFORE, the designation by the President of the Philippines of respondent Haydee B.

Yorac as Acting Chairman of the Commission on Elections is declared UNCONSTITUTIONAL,
and the respondent is hereby ordered to desist from serving as such. This is without prejudice
to the incumbent Associate Commissioners of the Commission on Elections restoring her to the
same position if they so desire, or choosing another member in her place, pending the
appointment of a permanent Chairman by the President of the Philippines with the consent of
the Commission on Appointments.: rd
SO ORDERED.
Fernan C . J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla,
Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.
Sarmiento, J., took no part.

Page 255 of 492

EN BANC
G.R. No. 104848 January 29, 1993
ANTONIO GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVES, EMMANUEL
ARANAS, PALERMO SIA, RONNIE RAMBUYON, PRIMO NAVARRO, and NOEL
NAVARRO, Petitioners, vs.HON. SINFOROSO V. TABAMO, JR., in his capacity as
Presiding Judge of Branch 28 of the Regional Trial Court of Mambajao, Camiguin, and
PEDRO P. ROMUALDO, Respondents.
Villarama & Cruz for petitioners.chanrobles virtual law library
Marciano LL. Aparte, Jr. for private respondents.
DAVIDE, JR., J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court.
Petitioners would have Us prohibit, restrain and enjoin public respondent Sinforoso V. Tabamo,
Jr., Presiding Judge of Branch 28 of the Regional Trial Court (RTC) of Mambajao, Camiguin,
from continuing with the proceedings in a petition for injunction, prohibition
and mandamus with a prayer for a writ of preliminary injunction and restraining order filed as
a taxpayer's suit, docketed therein as Special Civil Action No. 465 and entitled "Pedro P.
Romualdo, Jr. versus Gov. Antonio Gallardo, et al." Petitioners likewise seek to prohibit the
enforcement of the Temporary Restraining Order (TRO), issued by the respondent Judge on 10
April 1992, on the ground that the latter acted whimsically, capriciously and without
jurisdiction when he took cognizance of the case and issued the said order. It is the
petitioners' thesis that the said case principally involves an alleged violation of the provisions
of the Omnibus Election Code the jurisdiction over which is exclusively vested in the
Commission on Elections (COMELEC). It is additionally averred that the action is completely
baseless, that the private respondent is not a real party in interest and that the public
respondent acted with undue haste, manifest partiality and evident bias in favor of the private
respondent in issuing the TRO.chanroblesvirtualawlibrarychanrobles virtual law library
In Our Resolution of 20 April 1992, We required the respondents to comment on the petition
and issued a Temporary Restraining Order directing the respondent Judge to cease and desist
from implementing and enforcing the challenged Order of 10 April 1922, and from continuing
with the proceedings in Special Civil Action No. 465.chanroblesvirtualawlibrarychanrobles
virtual law library
At the time of the filing of both the special civil action and the instant petition, petitioner
Antonio Gallardo was the incumbent Governor of the Province of Camiguin and was seeking
re-election in the 11 May 1992 synchronized elections. Petitioners Antonio Arevalo, Cresencio

Page 256 of 492

Echaves, Emmanuel Aranas and Palermo Sia are the provincial treasurer, provincial auditor,
provincial engineer and provincial budget officer of Camiguin, respectively. Their co-petitioners
Ronnie Rambuyon, Primo Navarro and Noel Navarro are all government project laborers. On
the other hand, the private respondent was the incumbent Congressman of the lone
Congressional District of Camiguin, a candidate for the same office in the said synchronized
elections and the Regional Chairman of the Laban ng Demokratikong Pilipino (LDP) in Region
X.chanroblesvirtualawlibrarychanrobles virtual law library
The antecedents of this case are not complicated.chanroblesvirtualawlibrarychanrobles virtual
law library
On 10 April 1992, private respondent filed his Petition 1(Special Civil Action No. 465) before
the courta quo against petitioners Gallardo, Arevalo, Echaves, Aranas and Sia to prohibit and
restrain them from pursuing or prosecuting certain public works projects; from releasing,
disbursing and/or spending any public funds for such projects; and from issuing, using or
availing of treasury warrants or any device for the future delivery of money, goods and other
things of value chargeable against public funds in connection with the said projects as (1) said
projects were undertaken in violation of the 45-day ban on public works imposed by the
Omnibus Election Code (Batas Pambansa Blg. 881) because although they were initiated a few
days before 27 March 1992, the date the ban took effect, they were not covered by detailed
engineering plans, specifications or a program of work which are preconditions for the
commencement of any public works project; hence, they could not have been lawfully and
validly undertaken; (2) the hiring of hundreds of laborers in the different projects continues
unabated in flagrant violation of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus
Election Code; (3) the projects were undertaken in violation of the provisions of the Local
Government Code 2 governing the use and expenditure of the twenty percent (20%)
development fund of the Province of Camiguin; (4) these projects, which are "Locally-Funded",
were pursued without the requisite approval of the provincial budget by the Regional Office of
Budget and Management as required by Section 326 of the Local Government Code; (5) some
of the projects which are "Foreign-Assisted" and funded by the Spanish Assistance for
Integrated Livelihood Program (SAIL) lack the required building permits and are without any
relevance to those livelihood projects envisioned by the SAIL; and (6) more importantly, as
alleged in paragraph VII of his Petition: 3
. . . the illegal prosecution of these public work projects requiring massive outlay of public
funds during this election period has been and is being done maliciously and intentionally for
the purpose of corrupting the voters and inducing them to support the candidacy of
Respondent Gallardo and his candidates in the coming May 11, 1992 election.
In support of his prayer for a restraining order to be issued upon the filing of the petition and
a writ of preliminary injunction immediately thereafter, herein private respondent alleges in
paragraph XV of his Petition:
That unless the illegal acts of Respondents are enjoined or restrained immediately first by the
issuance of the restraining order upon the filing of this Petition and immediately after that a
Writ of Preliminary Injunction, great or irreparable loss and injury shall be caused not only to
Petitioner himself, as a candidate and as a taxpayer, but also to the entire LDP slate of
candidates, whose supporters are being corrupted and illegally induced to vote for Respondent
Antonio A. Gallardo and his candidates in consideration of their employment in these projects,
Page 257 of 492

but (sic) most of all the greatest and most irreparable loss, damage and injury, in terms of
wanton, irresponsible, excessive, abusive and flagrant waste of public money, is now being
caused and shall continue to be caused, primarily and principally to the sixty-thousand or
more taxpayers of the Province of Camiguin, whom Petitioner represents as Congressman and
whose interests Petitioner is sworn to uphold, promote and protect. 4chanrobles virtual law
library
The questioned projects are classified into two (2) categories: (a ) those that are LocallyFunded, consisting of twenty-nine (29) different projects for the maintenance or concreting of
various roads, the rehabilitation of the Katibawasan Falls and the construction of the Capitol
Building, and (b) those designated as Foreign-Assisted, consisting of fifteen (15) projects
which include the construction of the Human Resource Development Center, various Day Care
cum Production Centers and waterworks systems; the extension and renovation of various
buildings; the acquisition of hospital and laboratory equipment; and the rehabilitation of office
and equipment. 5chanrobles virtual law library
On the same day that the private respondent filed his petition, public respondent Judge issued
the questioned TRO, 6 the pertinent portion of which reads:
It appearing from the verified petition in this case that great and irreparable damage and/or
injury shall be caused to the petitioner as candidate and taxpayer, such damage and injury
taking the form and shape occasioned by the alleged wanton, excessive, abusive and flagrant
waste of public money, before the matter can be heard on notice, the respondents are hereby
Temporarily Restrained from pursuing or prosecuting the projects itemized in Annexes "A" and
"A-1" of the petition; from releasing, disbursing and/or spending any public funds for such
projects; from issuing, using or availing of treasury warrants or any device undertaking future
delivery of money, goods or other things of value chargeable against public funds in
connection with said projects. (Emphasis supplied).
In the same order, the public respondent directed the petitioners to file their Answer within
ten (10) days from receipt of notice and set the hearing on the application for the issuance of
the writ of preliminary injunction for 24 April 1992. Instead of filing the Answer, the
petitioners filed the instant special civil action for certiorari and prohibition, with a prayer for a
writ of preliminary injunction and/or temporary restraining order, alleging as grounds therefor
the following:
Ichanrobles virtual law library
PUBLIC RESPONDENT HAS NO JURISDICTION OVER SPECIAL CIVIL ACTION NO. 465, BEING
(sic) A SUIT INTENDED TO ENJOIN AN ALLEGED VIOLATION OF THE OMNIBUS ELECTION
CODE.
IIchanrobles virtual law library
REGIONAL TRIAL COURT'S JURISDICTION IS LIMITED TO CRIMINAL ACTIONS FOR VIOLATION
OF THE OMNIBUS ELECTION CODE.
IIIchanrobles virtual law library

Page 258 of 492

THE REGIONAL TRIAL COURT HAS NO JURISDICTION TO TAKE COGNIZANCE OF

COMPLAINTS/PETITION BASED ON ELECTION OFFENSES PRIOR TO THE CONDUCT OF
PRELIMINARY INVESTIGATION BY THE COMMISSION ON ELECTIONS; FURTHER, PRIVATE
RESPONDENT HAS NO RIGHT TO FILE SPECIAL CIVIL ACTION NO. 465 SINCE THE AUTHORITY
TO PROSECUTE ELECTION OFFENSES BELONGS TO THE COMMISSION ON ELECTIONS.
IVchanrobles virtual law library
PRIVATE RESPONDENT FAILED TO EXHAUST ALL HIS ADMINISTRATIVE REMEDIES
Vchanrobles virtual law library
THE PETITION DATED 09 APRIL 1992 FILED WITH PUBLIC RESPONDENT IS COMPLETELY
BASELESS SINCE:
A. THE PUBLIC WORKS PROJECTS BEING UNDERTAKEN BY PETITIONERS ARE EXEMPTED
FROM THE PUBLIC WORKS BAN ENFORCED BY THE
COMELEC.chanroblesvirtualawlibrarychanrobles virtual law library
B. THE PUBLIC WORKS PROJECTS WERE COMMENCED ONLY AFTER APPROVAL OF THE
DETAILED ENGINEERING PLANS AND SPECIFICATIONS AND PROGRAM OF
WORK.chanroblesvirtualawlibrarychanrobles virtual law library
C. THE PUBLIC WORKS PROJECTS WERE PROPERLY SUPPORTED BY A BUDGET DULY PASSED
AND APPROVED BY THE SANGGUNIANG PANLALAWIGAN.chanroblesvirtualawlibrarychanrobles
virtual law library
D. THE DEVELOPMENT FUND MAY VALIDLY BE USED TO FINANCE THE MAINTENANCE OF
PROVINCIAL ROADS.
VI
THE TAXPAYER'S SUIT FILED BY PRIVATE RESPONDENT IS IMPROPER SINCE HE IS NOT A
REAL PARTY IN INTEREST.
VIIchanrobles virtual law library
THE PUBLIC RESPONDENT ACTED WITH UNDUE HASTE, MANIFEST PARTIALITY AND EVIDENT
BIAS IN FAVOR OF PRIVATE RESPONDENT AND AGAINST PETITIONERS IN ISSUING THE
TEMPORARY RESTRAINING ORDER. 7chanrobles virtual law library
As adverted to earlier, We issued a Temporary Restraining Order on 20 April
1992.chanroblesvirtualawlibrarychanrobles virtual law library
After considering the allegations, issues and arguments adduced in the Petition, the Comment
thereto and the Reply to the Comment, We gave due course 8 to this Petition and required the
parties to submit their respective Memoranda which they complied
with.chanroblesvirtualawlibrarychanrobles virtual law library

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The main issue in this case is whether or not the trial court has jurisdiction over the subject
matter of Special Civil Action No. 465. The material operative facts alleged in the petition
therein inexorably link the private respondent's principal grievance to alleged violations of
paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code (Batas Pambansa
Blg. 881). There is particular emphasis on the last two (2) paragraphs which read:
Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:chanrobles
virtual law library
(a) Vote-buying and vote-selling. xxx xxx xxxchanrobles virtual law library
(b) Conspiracy to bribe voters. xxx xxx xxxchanrobles virtual law library
(v) Prohibition against release, disbursement or expenditure of public funds. Any public official
or employee including barangay officials and those of government-owned or controlled
corporations and their subsidiaries, who, during forty-five days before a regular election and
thirty days before a special election, releases, disburses or expends any public funds
for:chanrobles virtual law library
(1) Any and all kinds of public works, except the following:
xxx xxx xxxchanrobles virtual law library
(w) Prohibition against construction of public works, delivery of materials for public works and
issuance of treasury warrants and similar devices. - During the period of forty-five days
preceding a regular election and thirty days before a special election, any person who (a)
undertakes the construction of any public works, except for projects or works exempted in the
preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device
undertaking future delivery of money, goods or other things of value chargeable against public
funds.
Private respondent likewise focuses on Resolution No. 2332 (not 2322 as erroneously stated in
page 10 of his Petition) of the COMELEC, promulgated on 2 January 1992, implementing the
aforesaid paragraphs (v) and (w) of Section 261 and fixing the duration of the 45-day ban for
purposes of the synchronized elections from 27 March 1992 to 11 May
1922.chanroblesvirtualawlibrarychanrobles virtual law library
Essentially, therefore, Civil Case No. 465 before the trial court is for the enforcement of laws
involving the conduct of elections; corollarily, the issue that is logically provoked is whether or
not the trial court has jurisdiction over the same. If the respondent Judge had only hearkened
to this Court's teaching about a quarter of a century earlier, this case would not have reached
Us and taken away from more deserving cases so much precious time.

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Zaldivar vs. Estenzo, 9 decided by this Court on 3 May 1968, had squarely resolved the issue
above posed. Speaking through then Associate Justice Enrique Fernando (who later became
Chief Justice), this Court explicitly ruled that considering that the Commission on Elections is
vested by the Constitution with exclusive charge of the enforcement and administration of all
laws relative to the conduct of elections, the assumption of jurisdiction by the trial court over a
case involving the enforcement of the Election Code "is at war with the plain constitutional
command, the implementing statutory provisions, and the hospitable scope afforded such
grant of authority so clear and unmistakable in recent decisions." 10chanrobles virtual law
library
Said case was decided under the aegis of the 1935 Constitution and R.A. No. 180, otherwise
known as the Revised Election Code, which took effect on 21 June 1947. The present
Constitution and extant election laws have further strengthened the foundation for the above
doctrine; there can be no doubt that the present COMELEC has broader powers than its
predecessors. While under the 1935 Constitution it had "exclusive charge of the enforcement
and administration of all laws relative to the conduct of elections," exercised "all other
functions . . . conferred upon it by law" 11 and had the power to deputize all law enforcement
agencies and instrumentalities of the Government for the purpose of insuring free, orderly and
honest elections, 12 and under the 1973 Constitution it had, inter alia, the power (a) "[E]nforce
and administer all laws relative to the conduct of elections" 13 (b) "[D]eputize, with the
consent or at the instance of the Prime Minister, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines, for the
purpose of ensuring free, orderly, and honest elections," 14 and (c) "[P]erform such other
functions as may be provided by law," 15 it was not expressly vested with the power to
promulgate regulations relative to the conduct of an election. That power could only originate
from a special law enacted by Congress; this is the necessary implication of the above
constitutional provision authorizing the Commission to "[P]erform such other functions as may
be provided by law."chanrobles virtual law library
The present Constitution, however, implicitly grants the Commission the power to promulgate
such rules and regulations. The pertinent portion of Section 2 of Article IX-C thereof reads as
follows:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:chanrobles virtual law library
(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall. (Emphasis supplied).
xxx xxx xxx
The word regulations is not found in either the 1935 or 1973 Constitutions. It is thus clear that
its incorporation into the present Constitution took into account the Commission's power under
the Omnibus Election Code (Batas Pambansa Blg. 881), which was already in force when the
said Constitution was drafted and ratified, to:
xxx xxx xxxchanrobles virtual law library

Page 261 of 492

Promulgate rules and regulations implementing the provisions of this Code or other laws which
the Commission is required to enforce and administer, . . . . 16
Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory
authority to grant the Commission broader and more flexible powers to effectively perform its
duties and to insulate it further from legislative intrusions. Doubtless, if its rule-making power
is made to depend on statutes, Congress may withdraw the same at any time. Indeed, the
present Constitution envisions a truly independent Commission on Elections committed to
ensure free, orderly, honest, peaceful and credible elections, 17 and to serve as the guardian of
the people's sacred right of suffrage - the citizenry's vital weapon in effecting a peaceful
change of government and in achieving and promoting political stability.
Additionally, by statutory mandate, the present Commission on Elections possesses, inter alia,
the following powers:
l) Exercise direct and immediate supervision and control over national and local officials or
employees, including members of any national or local law enforcement agency and
instrumentality of the government required by law to perform duties relative to the conduct of
elections. In addition, it may authorize CMT cadets eighteen years of age and above to act as
its deputies for the purpose of enforcing its orders.chanroblesvirtualawlibrarychanrobles virtual
law library
The Commission may relieve any officer or employee referred to in the preceding paragraph
from the performance of his duties relating to electoral processes who violates the election law
or fails to comply with its instructions, orders, decisions or rulings, and appoint his substitute.
Upon recommendation of the Commission, the corresponding proper authority shall suspend
or remove from office any or all of such officers or employees who may, after due process, be
found guilty of such violation or failure. 18
2) To stop any illegal election activity, or confiscate, tear down, and stop any unlawful,
libelous, misleading or false election propaganda, after due notice and hearing. 19chanrobles
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Needless to say, the acts sought to be restrained in Special Civil Action No. 465 before the
court a quo are matters falling within the exclusive jurisdiction of the Commission. As a matter
of fact, the specific allegations in the petition therein of violations of paragraphs (a), (b), (v)
and (w), Section 261 of the Omnibus Election Code provide a stronger basis and reason for
the application of theZaldivar doctrine. At most, the facts in the latter case do not illustrate as
clearly the announced doctrine as the facts in this case do. In Zaldivar, no specific provision of
the Revised Election Code then in force was alleged to have been violated. What was sought to
be enjoined was the alleged wielding by Zaldivar, then a municipal mayor, of the power, by
virtue of his office, to appoint special policemen or agents to terrorize voters into supporting
the congressional candidate of his choice. In holding that the then Court of First Instance did
not have jurisdiction over the case, this Court considered the constitutional power of the
Commission on Elections to have exclusive charge of the enforcement and administration of all
laws relative to the conduct of elections and to exercise all other functions which may be
conferred by law. We likewise relied on the provisions of the Revised Election Code vesting
upon the COMELEC (a) direct and immediate supervision over municipal, city and provincial
officials designated by law to perform duties relative to the conduct of elections and (b)
Page 262 of 492

authority to suspend them from the performance of such duties for failure to comply with its
instructions, orders, decisions or rulings and recommend to the President their removal if
found guilty of non-feasance, malfeasance or misfeasance in connection with the performance
of their duties relative to the conduct of elections. 20chanrobles virtual law library
Under the present law, however, except in case of urgent need, the appointment or hiring of
new employees or the creation or filling up of new positions in any government office, agency
or instrumentality, whether national or local, including government-owned or controlled
corporations, is banned during the period of forty-five (45) days before a regular election and
thirty (30) days before a special election if made without the prior authority of the Commission
on Elections. A violation thereof constitutes an election offense. 21 Then too, no less than the
present Constitution - and not just the Election Law as was the case at the time of Zaldivar expressly provides that the Commission may "[R]ecommend to the President the removal of
any officer or employee it has deputized, or the imposition of any other disciplinary action, for
violation or disregard of, or disobedience to its directive, order, or decision." 22chanrobles
virtual law library
Moreover, the present Constitution also invests the Commission with the power to "investigate
and, where appropriate, prosecute cases of violations of election laws, including acts or
omissions constituting election frauds, offenses, and malpractices." 23chanrobles virtual law
library
It may thus be said without fear of contradiction that this vast array of powers and functions
now enjoyed by the Commission under the present Constitution provides a stronger
foundation for, and adds vigor and vitality to,
the Zaldivar doctrine.chanroblesvirtualawlibrarychanrobles virtual law library
The rationale of the said doctrine needs to be stressed here so that henceforth, no judge will
lose his bearings when confronted with the same issue. Otherwise, he should be held to
account for either the sheer ignorance of the law or the callous disregard of pronouncements
by this Court to accommodate partisan political feelings. We declared in the said case:
The question may be asked: Why should not the judiciary be a
co-participant in this particular instance of enforcing the Election Code as its authority was
invoked? The obvious answer is the literal language of the Constitution which empowers the
Commission on Elections to "have exclusive charge of the enforcement and administration of
all laws relative to the conduct of the elections." Moreover, as was so aptly observed by the
then Justice Frankfurter, although the situation confronting the United States Supreme Court
was of a different character: "Nothing is clearer than that this controversy concerns matters
that brings courts into immediate and active relations with party contests. From the
determination of such issues this Court has traditionally held aloof. It is hostile to a democratic
system to involve the judiciary in the politics of the people. And it is not less pernicious if such
judicial intervention in an essentially political contest be dressed up in the abstract phrases of
the law." 24 Then, too, reference by analogy may be made to the principle that sustains Albano
v. Arranz. For even without the express constitutional prescription that only this Court may
review the decisions, orders and rulings of the Commission on Elections, it is easy to
understand why no inference whatsoever with the performance of the Commission on
Elections of its functions should be allowed unless emanating from this Court. The observation
of Acting Chief Justice J.B.L. Reyes in Albano v. Arranz, 25 while not precisely in point,
Page 263 of 492

indicates the proper approach. Thus: "It is easy to realize the chaos that would ensue if the
Court of First Instance of each and every province were to arrogate unto itself the power to
disregard, suspend, or contradict any order of the Commission on Elections; that constitutional
body would be speedily reduced to impotence."chanrobles virtual law library
This conclusion finds' support from a consideration of weight and influence. What happened in
this case could be repeated elsewhere. It is not improbable that courts of first instance would
be resorted to by leaders of candidates or political factions entertaining the belief whether
rightly or wrongly that local officials would employ all the power at their command to assure
the victory of their candidates. Even if greater care and circumspection, than did exist in this
case, would be employed by judges thus appealed to, it is not unlikely that the shadow of
suspicion as to alleged partisanship would fall on their actuations, whichever way the matter
before them is decided. It is imperative that the faith in the impartiality of the judiciary be
preserved unimpaired. Whenever, therefore, the fear may be plausibly entertained that an
assumption of jurisdiction would lead to a lessening of the undiminished trust that should be
reposed in the courts and the absence of authority discernible the from the wording of
applicable statutory provisions and the trend of judicial decisions, even if no constitutional
mandate as that present in this case could be relied upon, there should be no hesitancy in
declining to act. 26chanrobles virtual law library
The foregoing disquisitions should have rendered unnecessary the resolution of the remaining
collateral issues raised in this petition. In view, however, of their importance, they will be
dealt with in a general way.chanroblesvirtualawlibrarychanrobles virtual law library
It is not true that, as contended by the petitioners, the jurisdiction of the Regional Trial Court
under the election laws is limited to criminal actions for violations of the Omnibus Election
Code. The Constitution itself grants to it exclusive original jurisdiction over contests involving
elective municipal officials. 27 Neither can We agree with the petitioners' assertion that the
Special Civil Action filed in the court below involves the prosecution of election offenses; the
said action seeks some reliefs incident to or in connection with alleged election offenses;
specifically, what is sought is the prevention of the further commission of these offenses
which, by their alleged nature, are continuing.chanroblesvirtualawlibrarychanrobles virtual law
library
There is as well no merit in the petitioners' claim that the private respondent has no legal
standing to initiate the filing of a complaint for a violation of the Omnibus Election Code. There
is nothing in the law to prevent any citizen from exposing the commission of an election
offense and from filing a complaint in connection therewith. On the contrary, under the
COMELEC Rules of Procedure, initiation of complaints for election offenses may be done motu
propio by the Commission on Elections or upon written complaint by any citizen, candidate or
registered political party or organization under the party-list system or any of the accredited
citizens arms of the Commission. 28 However, such written complaints should be filed with the
"Law Department of the Commission; or with the offices of the Election Registrars, Provincial
Election Supervisors or Regional Election Directors, or the State Prosecutor, Provincial Fiscal or
City Fiscal." 29 As earlier intimated, the private respondent was not seriously concerned with
the criminal aspect of his alleged grievances. He merely sought a stoppage of the public works
projects because of their alleged adverse effect on his candidacy. Indeed, while he may have
had reason to fear and may have even done the right thing, he committed a serious

Page 264 of 492

procedural misstep and invoked the wrong authority.chanroblesvirtualawlibrarychanrobles

virtual law library
We have, therefore, no alternative but to grant this petition on the basis Our resolution of the
principal issue. Nevertheless, it must be strongly emphasized that in so holding that the trial
court has no jurisdiction over the subject matter of Special Civil Action No. 465, We are not to
be understood as approving of the acts complained of by the private respondent. If his
charges for the violation of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus
Election Code are true, then no one should be spared from the full force of the law. No
government official should flout laws designed to ensure the holding of free, orderly, honest,
peaceful and credible elections or make a mockery of our electoral processes. The bitter
lessons of the past have shown that only elections of that nature or character can guarantee a
peaceful and orderly change. It is then his duty to respect, preserve and enhance an
institution which is vital in any democratic society.chanroblesvirtualawlibrarychanrobles virtual
law library
WHEREFORE, the instant Petition is hereby GRANTED. The challenged order of respondent
Judge of 10 April 1992 in Special Civil Action No. 465 is SET ASIDE and said Civil Case is
hereby ordered DISMISSED, without prejudice on the part of the private respondent to file, if
he is so minded, the appropriate complaint for an election offense pursuant to the COMELEC
Rules of Procedure.chanroblesvirtualawlibrarychanrobles virtual law library
Costs against the private respondent.chanroblesvirtualawlibrarychanrobles virtual law library
SO ORDERED.
Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Campos,
Jr., JJ., concur.
chanrobles virtual law library
chanrobles virtual law library
Separate Opinions
CRUZ, J., concurring and dissenting:chanrobles virtual law library
I concur but, regretfully, not with the statement that the Commission on Elections now derives
the power to promulgate resolutions directly from Article IX-C, Section 2(l) of the Constitution,
to wit:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall. (Emphasis supplied)
xxx xxx xxx

Page 265 of 492

With all due respect, I submit that what the COMELEC is authorized to do under that provision
is only to "enforce and administer" such laws and regulations, not to promulgate them. The
addition of the word "regulations" in the new subsection does not empower it now to
promulgate regulations any more than it can promulgate laws. As I read it, all that the change
imports is that the scope of the measures the COMELEC may enforce and administer has been
expressly widened, to include "regulations."chanrobles virtual law library
Regulations are mainly intended to implement or supplement a law and may be generally
issued only pursuant to a valid delegation of legislative power. That is why they are known as
"subordinate legislation." In the case of the COMELEC, I see no constitutional vesture in it of
the power to promulgate regulations, much less laws. There does not seem to be even an
"implicit" grant of that authority, as the ponencia suggests.
Narvasa, C.J., and Gutierrez, Jr., J., concur.
Separate Opinions
CRUZ, J., concurring and dissenting:chanrobles virtual law library
I concur but, regretfully, not with the statement that the Commission on Elections now derives
the power to promulgate resolutions directly from Article IX-C, Section 2(l) of the Constitution,
to wit:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall. (Emphasis supplied)
xxx xxx xxx
With all due respect, I submit that what the COMELEC is authorized to do under that provision
is only to "enforce and administer" such laws and regulations, not to promulgate them. The
addition of the word "regulations" in the new subsection does not empower it now to
promulgate regulations any more than it can promulgate laws. As I read it, all that the change
imports is that the scope of the measures the COMELEC may enforce and administer has been
expressly widened, to include "regulations."chanrobles virtual law library
Regulations are mainly intended to implement or supplement a law and may be generally
issued only pursuant to a valid delegation of legislative power. That is why they are known as
"subordinate legislation." In the case of the COMELEC, I see no constitutional vesture in it of
the power to promulgate regulations, much less laws. There does not seem to be even an
"implicit" grant of that authority, as the ponencia suggests.
Narvasa, C. J., and Gutierrez, Jr., J., concur.
Endnotes:

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1 Annex "D" of Petition; Rollo, 45-59.chanrobles virtual law library

2 R.A. No. 7160.chanrobles virtual law library
3 Rollo, 49.chanrobles virtual law library
4 Rollo, 54.chanrobles virtual law library
5 Annexes "A" and "A-1" of Petition in Special Civil Action No. 465; Id., 60-61
6 Rollo, 39.chanrobles virtual law library
7 Rollo, 10-12.chanrobles virtual law library
8 Id., 134.chanrobles virtual law library
9 23 SCRA 533 [1968].chanrobles virtual law library
10 At page 534.chanrobles virtual law library
11 Section 2, Article X.chanrobles virtual law library
12 Third sentence, Id.chanrobles virtual law library
13 Section 2(1), Article XII-C.chanrobles virtual law library
14 Section 2(4), Id.chanrobles virtual law library
15 Section 2(8), Id.chanrobles virtual law library
1j6 Section 52(c), Article VII, Omnibus Election Code.chanrobles virtual law library
17 Section 2(4), Article IX-C, 1987 Constitution.chanrobles virtual law library
18 Section 52(a), Article VII, Omnibus Election Code.chanrobles virtual law library
19 Section 57(2), Id.chanrobles virtual law library
20 Section 3, R. Ra. No. 180.chanrobles virtual law library
21 Section 261(g), Omnibus Election Code.chanrobles virtual law library
22 Section 2(8), Article IX-C.chanrobles virtual law library
23 Section 2(6), Id.
24 Citing Colegrove vs. Green, 328 U.S. 549, 553-554 [1946].chanrobles virtual law library

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25 G.R. No. L-19260, 31 January 1962, 4 SCRA 386.chanrobles virtual law library
26 At pages 540-541.chanrobles virtual law library
27 Section 2(2), Article IX-C of the 1987 Constitution and Section 251 of the Omnibus Election
Code. Also under the former section, courts of limited jurisdiction (Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts) have exclusive original jurisdiction
over contests involving elective barangay officials. These courts likewise have jurisdiction in
inclusion and exclusion cases (Section 138, Omnibus Election Code).chanrobles virtual law
library
28 Section 3, Rule 34, COMELEC Rules of Procedure.chanrobles virtual law library
29 Section 4, Id.

Page 268 of 492

EN BANC
[G.R. NO. 161265. February 24, 2004]
LABAN NG DEMOKRATIKONG PILIPINO,represented by its Chairman EDGARDO J.
ANGARAv.THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO
DECISION
TINGA, J.:
The Bible tells the story of how two women came to King Solomon to decide whoamong them
is the babys true mother. King Solomon, in his legendary wisdom, awarded the baby to the
woman who gave up her claim after he threatened to split the baby into two.
It is fortunate that the two women did not ask the Commission on Elections (COMELEC) to
decide the babys fate; otherwise, it would have cut the baby in half. For that is what the
COMELEC exactly did in this case.
On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a
registered political party, informed the COMELEC by way of Manifestation that only the Party
Chairman, Senator Edgardo J. Angara, or his authorized representative may endorse the
certificate of candidacy of the partys official candidates. The same Manifestation stated that
Sen. Angara had placed the LDP Secretary General, Representative Agapito A. Aquino, on
indefinite forced leave. In the meantime, Ambassador Enrique A. Zaldivar was designated
Acting Secretary General. The Manifestationconcluded with this
prayer:rbl rl l lbrr
A.The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are
attached Certificates of Nomination executed by LDP Party Chairman Edgardo J. Angara or by
such other officers of the LDP whom he may authorize in writing, and whose written
authorizations shall be deposited with the Honorable Commission by the LDP General Counsel.
B.The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels
[sic] all Certificates of Candidacy not endorsed by LDP Party Chairman Angara or by such
other LDP officials as may be authorized by him.
C.The Honorable Commission takes [sic] note of the designation of Ambassador Enrique Ike A.
Zaldivar as Acting Secretary General of the LDP, and for the Honorable Commission to honor
and recognize the official acts, to the exclusion of everyone, of Ambassador Zaldivar for and in
behalf of the LDP as Secretary General.1 rll
On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman
does not have the authority to impose disciplinary sanctions on the Secretary General. As
the Manifestationfiled by the LDP General Counsel has no basis, Rep. Aquino asked the
COMELEC to disregard the same.

Page 269 of 492

On December 17, 2003, the parties agreed to file a joint manifestation pending which the
proceedings were deemed suspended. On December 22, 2003, however, only the LDP General
Counsel filed anUrgent Manifestation reiterating the contents of the December 8,
2003 Manifestation. The COMELEC also received a Letter from Rep. Aquino stating that the
parties were unable to arrive at a joint manifestation.
The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing
newspaper accounts that Rep. Aquino had suspended Sen. Angara as Party Chairman.
On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified
petition. It turned out that, two days before, Sen. Angara had submitted a verified Petition , in
essence,reiterating the contents of its previous Manifestations. Attached to the Petition was a
Resolution2 adopted by the LDP National Executive Council,
stating:rbl rl l lbrr
WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng
Demokratikong Pilipino (LDP) convened and unanimously passed a resolution granting full
authority to Party Chairman Edgardo J. Angara to enter, negotiate and conclude a coalition
agreement with other like-minded opposition parties, aggrupations and interest groups with
the sole purpose of uniting the political opposition and fielding a unity ticket for the May 10,
2004 elections;chanroblesvirtuallawlibrary
WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino
(PMP) and the Partido Demokratiko ng Pilipinas - LABAN (PDP-LABAN) forged a coalition to
form the Koalisyon ng Nagkakaisang Pilipino (KNP);chanroblesvirtuallawlibrary
WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled:
Resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the Koalisyon ng
Nagkakaisang Pilipino (KNP) for President of the Republic of the Philippines in the May 10,
2004 National Elections;chanroblesvirtuallawlibrary
.. ..
WHEREAS, the process of unification of the political opposition and the actions taken in
connection therewith by Chairman Angara and by other governing bodies of the LDP required
the taking of immediate and forceful action by them to preserve and protect the integrity,
credibility, unity and solidarity of the LDP, and ensure the attainment of unification of the
political opposition;chanroblesvirtuallawlibrary
WHEREAS, such immediate and forceful action include those that have to do with pre-emptive
efforts to diffuse the chaos, confusion and disunity projected by the pronouncements and acts
of some officers and members to the general membership of the LDP and the electorate, such
as the one taken by the Regional Committee for Region VI (Western Visayas) on December 6,
2003; the enforcement of order in the LDP through the voice of a central leadership in
command in an otherwise extraordinary and emergency situation, such as the one taken by
Party Chairman Angara on December 6, 2003; the filing of the Manifestation with the
COMELEC on the matter of the authorized signatories for the nominations and, the adoption of
resolutions by the regional committees affirming their trust and confidence in Chairman

Page 270 of 492

Angara, and authorizing him to choose the presidential standard bearer for the May 10, 2004
elections; NOW THEREFORE, BE IT
RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and
confirm the Covenant of National Unity, the Declaration of Unity entered into by Party
Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce and
implement the same;chanroblesvirtuallawlibrary
RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara
and other governing bodies to preserve the integrity, credibility, unity and solidarity of the
LDP; and,
RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in,
and support to, the continued efforts of Chairman Angara to unite the political
opposition.3 rll
Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the
parties on oral arguments on the same day, after which the case was submitted for resolution.
Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for
President was filed with the COMELEC. The Certificate of Nomination was signed by Rep.
Aquino as LDP Secretary General.
On January 6, 2004, the COMELEC came to a decision.
The Commission identified the sole issue as who among the [LDP] officers [are] authorized to
authenticate before the Commission that the person filing the certificate of candidacy as party
nominee for a certain position is the official candidate of the party chosen in accordance with
its Constitution.4 rll
The COMELEC recognized that it has the authority to act on matters pertaining to the
ascertainment of the identity of [a] political party and its legitimate officers.5 In the same
breath, however, it held that internal party matters and wranglings [sic] are purely for the
party members to settle among themselves and any unsettled controversy should be brought
to the proper forum with jurisdiction. The question of who was suspended by whom was thus
left for such proper forum to resolve.6 Noting that the intramurals in the LDP as an internal
party matter seems to be irreconcilable for the present when the filing of Certificate of
Candidacy and Certificate of Nomination are about to reach the deadline, the COMELEC
disposed of the Petition in the following fashion:rbl rl l lbrr
WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both
Petitioner and Oppositor. The candidates for President down to the last Sangguniang Bayan
Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are recognized by the
Commission as official candidates of LDP Angara Wing. The candidates from President down
to the last Sangguniang Bayan Kagawad as nominated and endorsed by LDP Secretary
General Agapito Butz Aquino are recognized as official candidates of LDP Aquino Wing.

Page 271 of 492

Consequently, each faction or Wing is entitled to a representative to any election committee to

which it may be entitled as created by the Commission for the May 10, 2004 elections.For the
copies of the election returns, the Angara Wing will be entitled to the copies corresponding
to odd number of precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the Aquino Wing to
the even number of precincts, that is Precinct Nos. 2, 4, 6, etc. This is on the assumption
that the LDP or as a party within a registered Political Coalition becomes a recognized and
denominated as a Dormant [sic] Minority Party under the Election Laws. The two LDP Wings
are further entitled to and be accorded the rights and privileges with corresponding legal
obligations under Election Laws.7 rll
Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and
Florentino A. Tuason, Jr. concurred in the Resolution authored by Commissioner Rufino S.B.
Javier. Chair Benjamin S. Abalos, Sr., joined by Commissioner Mehol K. Sadain, submitted
dissenting opinions.
Sen. Angara thus filed the present petition for Certiorari8 assailing the COMELEC Resolution for
having been issued with grave abuse of discretion.
Thereafter, Rep. Aquino filed his Comment.
The Office of the Solicitor General submitted a Manifestation and Motion praying for the
granting of the Petition . The COMELEC thus filed a separate Comment to the Petition.
The COMELEC correctly stated that the ascertainment of the identity of [a] political party and
its legitimate officers is a matter that is well within its authority. The source of this authority is
no other than the fundamental law itself, which vests upon the COMELEC the power and
function to enforce and administer all laws and regulations relative to the conduct of an
election.9 In the exercise of such power and in the discharge of such function, the Commission
is endowed with ample wherewithal and considerable latitude in adopting means and methods
that will ensure the accomplishment of the great objectives for which it was created to
promote free, orderly and honest elections.10 rll
Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal
Party, 11this Court held:rbl rl l lbrr
that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-021
[involving a petition to prohibit Eva Estrada Kalaw from usurping or using the title or position
of President of the Liberal Party] in view of its powers under Article IX-C, Section 2, of the
Constitution to, among others, enforce and administer all laws relative to the conduct of
elections, decide all questions affecting elections, register and regulate political parties, and
insure orderly elections. These powers include the determination of the conflicting claims
made in SP Case No. 85-021, which are likely to cause confusion among the electorate if not
resolved. Additionally, the COMELEC is mandated by the Election Code to inter alia require
candidates to specify their political party affiliation in their certificates of candidacy, allow
political parties to appoint watchers, limit the expenditures of each political party, determine
whether or not a political party shall retain its registration on the basis of its showing in the
preceding elections, etc. These matters include the ascertainment of the identity of the
political party and its legitimate officers responsible for its acts and the resolution of

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such controversies as the one now before it where one party appears to be divided
into two wings under separate leaders each claiming to be the president of the
entire party. [Emphasis supplied.]
Likewise in Palmares v. Commission on Elections,12 to which the assailed Resolution made
reference and which involved the Nacionalista Party,13 this Court ruled
that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the
Constitution, the COMELEC is empowered to register political parties [Sec. 2(5), Article IX-C.]
Necessarily, the power to act on behalf of a party and the responsibility for the acts of such
political party must be fixed in certain persons acting as its officers. In the exercise of the
power to register political parties, the COMELEC must determine who these officers are.
Consequently, if there is any controversy as to leadership, the COMELEC may, in a proper case
brought before it, resolve the issue incidental to its power to register political parties.
This Court then proceeded to quote from Kalaw, supra.
The two cited decisions find support in Sumulong v. Commission on Elections14 and Sotto v.
Commission on Elections,15 where this Court, in resolving the issue as to who between the
factions of a political party was entitled to nominate election inspectors, necessarily settled
claims to the partys leadership. Both cases were decided without question on the COMELECs
power to determine such claims. In conformity with jurisprudence, this Court did not identify
the COMELECs jurisdiction as an issue when this case was heard on oral argument.
There is no inconsistency between the above cases on the one hand and this Courts more
recent ruling in Sinaca v. Mula16 on the other. In the latter case, this Court
held:rbl rl l lbrr
A political party has the right to identify the people who constitute the association and to
select a standard bearer who best represents the partys ideologies and preference. Political
parties are generally free to conduct their internal affairs free from judicial supervision; this
common-law principle of judicial restraint, rooted in the constitutionally protected right of free
association, serves the public interest by allowing the political processes to operate without
undue interference. Thus, the rule is that the determination of disputes as to party
nominations rests with the party, in the absence of statutes giving the courts [sic] jurisdiction.
Quintessentially, where there is no controlling statute or clear legal right involved, the
court will not assume jurisdiction to determine factional controversies within a political party,
but will leave the matter for determination by the proper tribunals of the party itself or by the
electors at the polls. Similarly, in the absence of specific constitutional or legislative
regulations defining how nominations are to be made, or prohibiting nominations from being
made in certain ways, political parties may handle such affairs, including nominations, in such
manner as party rules may establish. [Emphasis supplied.]
Sinaca, unlike previous cases, did not involve the question of party identity or leadership;
hence, it was not necessary for the COMELEC to delve therein. None of the candidates
involved in that case were claiming to be the political partys sole candidate.

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In the case at bar, the Party Chairman, purporting to represent the LDP, contends that under
the Party Constitution only he or his representative, to the exclusion of the Secretary General,
has the authority to endorse and sign party nominations. The Secretary General vigorously
disputes this claim and maintains his own authority. Clearly, the question of party identity or
leadership has to be resolved if the COMELEC is to ascertain whether the candidates are
legitimate party standard bearers or not.
The repercussions of the question of party identity and leadership do not end at the validity of
the endorsement of the certificates of candidacy of persons claiming to be the partys standard
bearer. The law grants a registered political party certain rights and privileges,17 which,
naturally, redound to the benefit of its candidates. It is also for this significant dimension
that Sinaca is not applicable in this case.As conceded in Sinaca itself, the Court will have to
assume jurisdiction to determine factional controversies within a political party where a
controlling statute or clear legal right is involved.18Verily, there is more than one law, as well
as a number of clear legal rights, that are at stake in the case at bar.
The law accords special treatment to political parties. The dominant majority party, the
dominant minority party as determined by the COMELEC, for instance, is entitled to a copy of
the election returns.19 The six (6) accredited major political parties may nominate the principal
watchers to be designated by the Commission.20 The two principal watchers representing the
ruling coalition and the dominant opposition coalition in a precinct shall, if available, affix their
signatures and thumbmarks on the election returns for that precinct.21 Three (3) of the six
accredited major political parties are entitled to receive copies of the certificate of
canvass.22 Registered political parties whose candidates obtained at least ten percent (10%) of
the total votes cast in the next preceding senatorial election shall each have a watcher and/or
representative in the procurement and watermarking of papers to be used in the printing of
election returns and official ballots and in the printing, numbering, storage, and distribution
thereof.23 Finally, a candidate and his political party are authorized to spend more per voter
than a candidate without a political party.24 rll
It is, therefore, in the interest of every political party not to allow persons it had not chosen to
hold themselves out as representatives of the party. Corollary to the right of a political party
to identify the people who constitute the association and to select a standard bearer who best
represents the partys ideologies and preference25 is the right to exclude persons in its
association and to not lend its name and prestige to those which it deems undeserving to
represent its ideals. A certificate of candidacy makes known to the COMELEC that the person
therein mentioned has been nominated by a duly authorized political group empowered to act
and that it reflects accurately the sentiment of the nominating body.26 A candidates political
party affiliation is also printed followed by his or her name in the certified list of
candidates.27 A candidate misrepresenting himself or herself to be a partys candidate,
therefore, not only misappropriates the partys name and prestige but foists a deception upon
the electorate, who may unwittingly cast its ballot for him or her on the mistaken belief that
he or she stands for the partys principles. To prevent this occurrence, the COMELEC has the
power and the duty to step in and enforce the law not only to protect the party but, more
importantly, the electorate, in line with the Commissions broad constitutional mandate to
ensure orderly elections.
Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party
identity and leadership as an incident to its enforcement powers, this Court cannot help but be
Page 274 of 492

baffled by the COMELECs ruling declining to inquire into which party officer has the authority
to sign and endorse certificates of candidacy of the partys nominees.
The only issue in this case, as defined by the COMELEC itself, is who as between the Party
Chairman and the Secretary General has the authority to sign certificates of candidacy of the
official candidates of the party. Indeed, the petitioners Manifestation and Petition before the
COMELEC merely asked the Commission to recognize only those certificates of candidacy
signed by petitioner Sen. Angara or his authorized representative, and no other.
To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need
not go so far as to resolve the root of the conflict between the party officials. It need only
resolve such questions as may be necessary in the exercise of its enforcement powers.
The LDP has a set of national officers composed of, among others, the Party Chairman and the
Secretary General.28 The Party Chairman is the Chief Executive Officer of the Party, whose
powers and functions include:rbl rl l lbrr
(1) To represent the Party in all external affairs and concerns, sign documents for and on
its behalf, and call the meetings and be the presiding officer of the National Congress and the
National Executive Council.29 rll
The Secretary General, on the other hand, assists the Party Chairman in overseeing the dayto-day operations of the Party. Among his powers and functions
is:rbl rl l lbrr
(1) When empowered by the Party Chairman, to sign documents for and on behalf of the
Party.30 rll
The Secretary Generals authority to sign documents, therefore, is only a delegated power,
which originally pertains to the Party Chairman.
Rep. Aquino claims that he was authorized to exercise to sign the party candidates certificates
of candidacy in the previous elections. Indeed, the COMELEC found
that:rbl rl l lbrr
In fact, during the May 14, 2001 elections, oppositor Agapito Butz Aquino, as LDP Secretary
General, was authorized by the LDP to sign for the Certificates of Nomination of the LDP
Senatorial Candidates, including the Certificate of Nomination for Senatorial Candidate
Edgardo J. Angara, a copy of said Certificate of Nomination and a copy of the Certificate for
Senator Edgardo J. Angara are attached as Annexes A and B, respectively. This action by
Secretary General Aquino is in accordance with the Constitution and By-laws of LDP, not
questioned by the LDP signed by its Secretary General. This revocation has not been revoked
or recalled by the National Congress of the LDP which is the one authorized to nominate
candidates for President and Vice-President, respectively.31 rll
Assuming that Rep. Aquino previously had such authority, this Court cannot share the
COMELECs finding that the same has not been revoked or recalled. No revocation of such
authority can be more explicit than the totality of Sen. Angaras Manifestations and Petition

Page 275 of 492

before the COMELEC, through which he informed the Commission that Rep. Aquinos had been
placed on indefinite forced leave and that Ambassador Zaldivar has been designated Acting
Secretary General, who shall henceforth exercise all the powers and functions of the Secretary
General under the Constitution and By-Laws of the LDP.32 As the prerogative to empower Rep.
Aquino to sign documents devolves upon Sen. Angara, so he may choose, at his discretion, to
withhold or revoke such power.
Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No.
645333as basis for the Party Secretary Generals authority to sign certificates of candidacy.
Said Section 6 states:rbl rl l lbrr
SEC. 6. Certificate of nomination of official candidates by political party. The certificate of
nomination of registered political parties or coalitions of political parties of their official
candidates shall be filed not later than the last day for filing of certificates of candidacy, which
is January 2, 2004 duly signed and attested under oath by the party president,
chairman, secretary-general or any other duly authorized officer and shall bear the
acceptance of the nominee by affixing his signature in the space provided therein. [Emphasis
and underscoring supplied.]
Clearly, however, the above provision presupposes that the party president, chairman or
secretary-general has been duly authorized by the party to sign the certificate of candidacy.
COMELEC Resolution No. 6453 cannot grant a party official greater authority than what the
party itself grants, lest such Resolution amount to a violation of the partys freedom of
association.
Neither does the Party Secretary General have the power to nominate the official candidates of
the LDP. That power resides in the governing bodies of the Party.34 In particular, the National
Congress, which is the highest policy-making and governing body of the Party, has the power
(6) To nominate the official candidates of the Party for President, Vice President, and
Senators, and, whenever the corresponding conventions fail to meet or to make the requisite
nominations, to nominate the official candidates for municipal city, congressional district,
provincial and regional elective offices.35 rll
Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on behalf of the
LDP but he would also deny Sen. Angara that power on account of the latters preventive
suspension. It seems, however, that respondent has abandoned this tack by the silence of
his Memorandum on the matter.
In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP Region
VI Regional Chairman, filed a complaint with Rep. Aquino against Party Chairman Sen. Angara
for disloyalty to the Party, gross violation of the Party Constitution, and other divisive acts
inimical to the interest of the party and its members. Rep. Aquino, as Secretary General,
created a committee composed of three (3) members of the LDP National Executive Council to
investigate the complaint and recommend appropriate action thereon. On December 12, 2003,
the investigating committee issued a resolution placing Sen. Angara under preventive
suspension effective immediately and directing him to refrain from performing acts in behalf of
the party until the committee finishes its investigation and submits its final recommendations.

Page 276 of 492

The authority to create the investigating committee supposedly rests on Section 9 (4), Article
VI of the LDP Constitution, which enumerates the powers and functions of the Secretary
General:rbl rl l lbrr
(4) With the concurrence of the Party Chairman, to enforce Party discipline. {Emphasis
supplied.]
Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of the
LDP, neither does he have the power to enforce Party discipline or, as an incident thereto, to
create an investigating committee, without the Party Chairmans concurrence.Much less does
the investigating committee so created have the power to place the Party Chairman under
preventive suspension since its authority stems from a nullity. Simply put, the spring has no
source.
The lack of Rep. Aquinos authority to sign documents or to nominate candidates for the LDP
would not result in the denial of due course to or the cancellation of the certificates of
candidacy he may have signed on behalf of the LDP.36 The exclusive ground for the denial of
due course to or the cancellation of a certificate of candidacy for any elective office is that any
material representation contained therein as required by law is false.37 Since the signature of
Rep. Aquino was affixed either prior to, or on the basis of, the
challenged Resolution recognizing his authority to sign on behalf of the LDP, the same would
not constitute material representation that is false. In such case, the candidates are simply
deemed as not nominated by the LDP and are considered independent candidates pursuant to
Section 7 of COMELEC Resolution No. 6453:rbl rl l lbrr
SEC. 7. Effect of filing certificate of nomination. A candidate who has not been nominated by a
registered political party or its duly authorized representative, or whose nomination has not
been submitted by a registered political party shall be considered as an independent
candidate.
COMELEC Commissioner Sadain referred to the above provision in his Dissenting Opinion, and
this Court finds refreshing wisdom so sorely wanting in the majority opinion in his suggestion
that:rbl rl l lbrr
All other party members representing themselves to be candidates of the party shall not be
deprived of their right to file their respective certificates of candidacy and run for office, if so
qualified, but that they shall not be accorded the rights and privileges reserved by election
laws for official nominees of registered political parties.Instead, they shall be treated as
independent candidates.38 rll
From the foregoing, it is plain that the COMELEC misapplied equity in the present case. For all
its conceded merits, equity is available only in the absence of law and not as its
replacement.39 Equity is described as justice without legality, which simply means that it
cannot supplant, although it may, as often happens, supplement the law.40 The COMELEC
should have decided the case on the basis of the party constitution and election laws. It chose
not to because of its irrational fear of treading, as respondent Aquino put it, on unchartered
territories.41 But, as shown above, these territories have long been charted by jurisprudence

Page 277 of 492

and, in any case, the COMELEC need not have sailed far from the shore to arrive at the correct
conclusion. In truth, the COMELEC Resolution is indecision in the guise of equity.
Worse, the COMELEC divided the LDP into wings, each of which may nominate candidates for
every elective position.Both wings are also entitled to representatives in the election
committees that the Commission may create. In the event that the LDP is accorded dominant
minority party election status, election returns of odd-numbered precincts shall be furnished
the Angara wing and those of even-numbered precincts, the Aquino wing.
By creating the two wings, the COMELEC effectively diffused the LDPs strength and undeniably
emasculated its chance of obtaining the Commissions nod as the dominant minority party.
By allowing each wing to nominate different candidates, the COMELEC planted the seeds of
confusion among the electorate, who are apt to be confounded by two candidates from a
single political party. In Recabo, Jr. v. Commission on Elections ,42 this Court declared that the
electoral process envisions one candidate from a political party for each position, and disunity
and discord amongst members of a political party should not be allowed to create a mockery
thereof. The admonition against mocking the electoral process not only applies to political
parties but with greater force to the COMELEC.
By according both wings representatives in the election committees, the COMELEC has eroded
the significance of political parties and effectively divided the opposition. The COMELEC has
lost sight of the unique political situation of the Philippines where, to paraphrase Justice
Perfectos concurring opinion in Sotto, supra, the administration party has always been
unnecessarily and dangerously too big and the opposition party too small to be an effective
check on the administration. The purpose of according dominant status and representation to
a minority party is precisely to serve as an effective check on the majority.The COMELEC
performed a disservice to the opposition and, ultimately, to the voting public, as
its Resolution facilitated, rather than forestalled, the division of the minority party.
By splitting copies of the election returns between the two factions, the COMELEC has
fractured both wings.The practical purpose of furnishing a party with a copy of the election
returns is to allow it to tally the results of the elections at the precinct level. Ultimately, it is a
guard against fraud. Thus, resort to copies thereof may be had when the election returns are
delayed, lost or destroyed,43 or when they appear to be tampered or falsified.44 A split party
without a complete set of election returns cannot successfully help preserve the sanctity of the
ballot.
It bears reminding respondent Commission of this Courts pronouncement in Peralta v.
Commission on Elections,45 which, while made in the backdrop of a parliamentary form of
government, holds equally true under the present government
structure:rbl rl l lbrr
political parties constitute a basic element of the democratic institutional apparatus.
Government derives its strength from the support, active or passive, of a coalition of elements
of society. In modern times the political party has become the instrument for the organization
of societies. This is predicated on the doctrine that government exists with the consent of the
governed. Political parties perform an essential function in the management of succession to

Page 278 of 492

power, as well as in the process of obtaining popular consent to the course of public policy.
They amass sufficient support to buttress the authority of governments; or, on the contrary,
they attract or organize discontent and dissatisfaction sufficient to oust the government. In
either case they perform the function of the articulation of the interests and aspirations of a
substantial segment of the citizenry, usually in ways contended to be promotive of the
national weal.
The assailed COMELEC Resolution does not advance, but subverts, this philosophy behind
political parties.
As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a free and
open party system.46 This policy, however, envisions a system that shall evolve according to
the free choice of the people,47 not one molded and whittled by the COMELEC. When the
Constitution speaks of a multi-party system, it does not contemplate the COMELEC splitting
parties into two.For doing just that, this pretender to the throne of King Solomon acted
whimsically and capriciously. Certiorari lies against it, indeed.
WHEREFORE, the assailed COMELEC Resolution is ANNULLED and the Petition is GRANTED IN
PART. Respondent Commission on Elections is directed to recognize as official candidates of
the Laban ng Demokratikong Pilipino only those whose Certificates of Candidacy are signed by
LDP Party Chairman Senator Edgardo J. Angara or his duly authorized representative/s.
SO ORDERED.
Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, CarpioMorales, Callejo, Sr., and Azcuna, JJ., concur.
Davide, Jr., C.J., in the result.
Puno, J., on leave.
Vitug, J., please see separate opinion.
Sandoval-Gutierrez, J., please see dissenting opinion.
Corona, J., joins the dissenting opinion of J. Gutierrez.
Endnotes:

Rollo, p. 58.

Resolution Ratifying and Confirming the Covenant of National Unity, the

Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and All Acts
and Decisions taken by him to Enforce and Implement the same; Ratifying and
Confirming All other Acts and Decisions of Chairman Angara and other Governing
Bodies to Preserve the Integrity, Credibility, Unity and Solidarity of the Party; and,

Page 279 of 492

further Reiterating the Vote of Confidence of the National Executive Council in, and
support to, the continued efforts of Chairman Angara to Unite the Political
Opposition.
3

Rollo, pp. 63-65.

Id., at 44.

Id., at 46.

Id., at 43.

Id., at 47-48. Emphasis in the original.

Sen. Angara was authorized to filed the Petition pursuant to a Resolution of the
LDP National Executive Council issued adopted and confirmed on January 8, 2004,
and stating:rbl rl l lbrr
RESOLVED, That Senator Edgardo J. Angara, LDP Party Chairman, be as he is hereby,
authorized to sign, verify, and cause the filing with the Supreme Court, of the
Petition for Certiorari from the Resolution dated January 6, 2004 of the Commission
on Elections in Election Matter No. 03-018 entitled: In Re[:] Certificates of Candidacy
of Official Candidates of the Laban ng Demokratikong Pilipino for the May 10, 2004
Elections, Laban ng Demokratikong Pilipino, Petitioner. [Rollo, p. 38.]
9

Constitution,art. IX-C, sec. 2 (1).

10

Sanchez v. Commission on Elections, 199 Phil. 617

(1982), citing Cauton v. Comelec, L-25467, April 27, 1967, 19 SCRA 911 (1967).
11

G.R. No. 80218, November 5, 1987.

12

G.R. NOS. 86177-78, August 31, 1989.

13

Rollo, p. 46, at note 12.

14

70 Phil. 703 (1940).

15

76 Phil. 516 (1946).

16

373 Phil. 896 (1999).

17

Omnibus Election Code, sec. 60.

18

Note 13, supra.

19

Rep. Act No. 7166, sec. 27, as amended by Rep. Act No. 8173.

Page 280 of 492

20

Id ., sec. 26.

21

Rep. Act No. 6646, sec. 12.

22

Rep. Act. No. 7166, sec. 29.

23

Rep. Act No. 6646, sec. 8.

24

Rep. Act No. 7166, sec. 13.

25

Sinaca v. Mula, supra.

26

Alialy v. Commission on Elections, L-16165, July 31, 1961, 2 SCRA 957.

27

Rep. Act. No. 6646, sec. 4.

28

LDP Constitution, art. VI, sec. 1 (1) and (4).

29

Id ., sec. 5. Emphasis supplied.

30

Id ., sec. 9. Emphasis supplied.

31

Rollo, p. 45.

32

Id ., at 57, 85.

33

Guidelines on the Filing of Certificates of Candidacy and Nomination of Official

Candidates of Registered Political Parties in Connection with the May 10, 2004
National and Local Elections.
34

The governing bodies of the Party are: (1) the Municipal Committee, (2) the City
Committee, (3) the Congressional District Committee, (4) the Provincial Committee,
(5) the Regional Committee, for each region, including the National Capital Region
and Autonomous Regions, and (6) the National Congress. [LDP Constitution, art. V,
sec. 1.] The first four Committees and the Autonomous Region Regional Committee
also act as conventions to choose the official candidates of the Party for the elective
offices in their corresponding political units.[LDP Constitution, art. V, sec. 3(7), sec.
5 in relation to sec. 3(7), sec. 7 (2), sec. 9 (5) and sec. 13.]
35

LDP Constitution, art. V, sec. 1.

36

See Alialy v. Commission on Elections, supra.

37

Omnibus Election Code,sec. 78.

38

Rollo, p. 50.

Page 281 of 492

39

Tankiko v. Cezar, G.R. No. 131277, 362 Phil. 184 (1999), 302 SCRA 559.

40

Ibid .

41

Comment, p. 20.

42

G.R. No. 134293, June 21, 1999, 308 SCRA 793.

43

Omnibus Election Code, sec. 233.

44

Id ., sec. 235.

45

L-47771, March 11, 1978, 82 SCRA 30.

46

Comment, p. 6.

47

Constitution,art. IX-C, sec. 6.

Page 282 of 492

EN BANC
[G.R. No. 108399. July 31, 1997.]
RAFAEL M. ALUNAN III, in his capacity as Secretary of the Department of Interior
and Local Government (DILG), the BOARD OF ELECTION SUPERVISORS composed of
Atty. RUBEN M. RAMIREZ, Atty. RAFAELITO GARAYBLAS, and Atty. ENRIQUE C. ROA,
GUILLERMINA RUSTIA, in her capacity as Director of the Barangay Bureau, City
Treasurer Atty. ANTONIO ACEBEDO, Budget Officer EUFEMIA DOMINGUEZ, all of the
City Government of Manila, Petitioners, v. ROBERT MIRASOL, NORMAN NOEL T.
SANGUYA, ROBERT DE JOYA, ARNEL R. LORENZO, MARY GRACE ARIAS, RAQUEL L.
DOMINGUEZ, LOURDES ASENCIO, FERDINAND ROXAS, MA. ALBERTINA RICAFORT
and BALAIS M. LOURICH and the HONORABLE WILFREDO D. REYES, Presiding Judge
of the Regional Trial Court, Branch 36, Metro Manila, Respondents.
The Solicitor General, for Petitioners.
Pedro Q. Quadra for Private Respondents.
SYNOPSIS
The Local Government Code, which took effect on January 1, 1992, provides, in Section
532(a), that the first election for the Sangguniang Kabataan (SK) shall be held thirty days
after the next local election. The first local election under the Code was held on May 11, 1992.
Accordingly, the Commission on Elections issued Resolution No. 2499, providing guidelines for
the holding of the general election for the SK on September 30, 1992. The guidelines placed
the SK elections under the direct control and supervision of the DILG.
The DILG, however, through then Secretary Rafael M. Alunan III, issued a letter-resolution
exempting the City of Manila from holding election for the SK on the ground that the election
previously held on May 26, 1990 was to be considered the first under the newly enacted Local
Government Code.
Private respondents filed a petition for certiorari and mandamus in the RTC of Manila to set
aside the resolution of the DILG, arguing that the Secretary of the DILG had no power to
amend the resolutions of the COMELEC calling for general elections of SKs and that the DILG
resolution in question denied them the equal protection of the laws.
Petitioners maintain that the Secretary of the DILG had authority to determine whether the
City of Manila came within the exception clause of Section 532(d) so as to be exempt from
holding the election on December 4, 1992. COMELECs placing the SK election under the direct
control and supervision of the DILG did not contravene Art. IX, C, Sec. 2(1) of the Constitution
which provides that the COMELEC shall have the power to "enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall."

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Elections for SK officers are not subject to the supervision of the COMELEC in the same way
that contests involving elections of SK officials do not fall within the jurisdiction of the
COMELEC.
Section 532(d) may thus be deemed to be a curative law. Curative laws, which in essence are
retrospective in effect, are enacted to validate acts done which otherwise would be invalid
under existing laws, by considering them as having complied with the existing laws. Such laws
are recognized in this jurisdiction.
The decision of the RTC of Manila, Branch 36, is REVERSED.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; MOOT AND ACADEMIC; RESOLUTION OF ISSUE STILL PROPER
WHERE IT IS CAPABLE OF REPETITION, YET EVADING REVIEW. The preliminary question is
whether the holding of the second elections on May 13, 1996 rendered this case moot and
academic. There are two questions raised in this case. The first is whether the Secretary of
Interior and Local Government can "exempt" a local government unit from holding elections
for SK officers on December 4, 1992 and the second is whether the COMELEC can provide that
"the Department of Interior and Local Government shall have direct control and supervision
over the election of sangguniang kabataan with the technical assistance by the Commission on
Elections." We hold that this case is not moot and that it is in fact necessary to decide the
issues raised by the parties. For one thing, doubt may be cast on the validity of the acts of
those elected in the May 26, 1990 KB elections in Manila because this Court enjoined the
enforcement of the decision of the trial court and these officers continued in office until May
13, 1996. For another, this case comes within the rule that courts will decide a question
otherwise moot and academic if it is "capable of repetition, yet evading review." For the
question whether the COMELEC can validly vest in the DILG the control and supervision of SK
elections is likely to arise in connection with every SK election and yet the question may not
be decided before the date of such elections.
2. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; RESOLUTION NO. 2499 PLACING
SANGGUNIANG KABATAAN ELECTIONS UNDER DIRECT CONTROL AND SUPERVISION OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, CONSTITUTIONAL; CONTESTS
INVOLVING ELECTIONS OF SANGGUNIANG OFFICIALS DO NOT FALL WITHIN COMMISSION
ON ELECTIONS JURISDICTION. As already stated, by 4 of Resolution No. 2499, the
COMELEC placed the SK elections under the direct control and supervision of the DILG.
Contrary to respondents contention, this did not contravene Art. IX, C 2(1) of the
Constitution which provides that the COMELEC shall have the power to "enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite initiative,
referendum, and recall." Elections for SK officers are not subject to the supervision of the
COMELEC in the same way that, as we have recently held, contests involving elections of SK
officials do not fall within the jurisdiction of the COMELEC.
3. ID.; ID.; ID.; ID.; SANGGUNIANG KABATAAN CHAIRMAN NOT AN ELECTED BARANGAY
OFFICIAL. Section 252 of the Omnibus Election Code and that portion of paragraph (2),
Section 2, Article IX-C of the Constitution on the COMELECs exclusive appellate jurisdiction

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over contests involving elective barangay officials refer to the elective barangay officials under
the pertinent laws in force at the time the Omnibus Election Code was enacted and upon the
ratification of the Constitution. That law was B.P. Blg. 337, otherwise known as the Local
Government Code, and the elective barangay officials referred to were the punong barangay
and the six sangguniang bayan members. In the light of the foregoing, it is indisputable that
contests involving elections of SK (formerly KB) officials do not fall within Section 252 of the
Omnibus Election Code and paragraph 2, Section 2, Article IX-C of the Constitution and that
no law in effect prior to the ratification of the Constitution had made the SK chairman an
elective barangay official. His being an ex-officio member of the sangguniang barangay does
not make him one for the law specifically provides who are its elective members.
4. ID.; ID.; ID.; INCLUSION OF BARANGAYS IN SANGGUNIANG KABATAAN ELECTIONS, TO BE
DETERMINED BY DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT. It is contended
that, in its resolution in question, the COMELEC did not name the barangays which, because
they had conducted kabataang barangay elections between January 1, 1988 and January 1,
1992, were not included in the SK elections to be held on December 4, 1992. That these
barangays were precisely to be determined by the DILG is, however, fairly inferable from the
authority given to the DILG to supervise the conduct of the elections. Since 532(d) provided
for kabataang barangay officials whose term of office was extended beyond 1992, the
authority to supervise the conduct of elections in that year must necessarily be deemed to
include the authority to determine which kabataang barangay would not be included in the
1992 elections. The authority granted was nothing more than the ascertainment of a fact,
namely, whether between January 1, 1988 and January 1, 1992 elections had been held in a
given kabataang barangay. If elections had been conducted, then no new elections had to be
held on December 4, 1992 since by virtue of 532(d) the term of office of the kabataang
barangay officials so elected was "extended correspondingly to coincide with the term of office
of those elected under [the Local Government Code of 1991]." In doing this, the Secretary of
Interior and Local Government was to act merely as the agent of the legislative department,
to determine and declare the event upon which its expressed will was to take effect. There
was no undue delegation of legislative power but only of the discretion as to the execution of a
law. That this is constitutionally permissible is the teaching of our cases.
5. ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; SECTION 532 (d) PROVIDING THAT
THE KABATAANG BARANGAY ELECTIONS CONDUCTED BETWEEN JANUARY 1, 1988 AND
JANUARY 1, 1992 SHALL BE CONSIDERED AS THE FIRST ELECTIONS PROVIDED FOR IN THIS
CODE, LEGAL AND BINDING, A CURATIVE LAW. Petitioners sought this review on certiorari.
They insist that the City of Manila, having already conducted elections for the KB on May 26,
1990, was exempted from holding elections on December 4, 1992. In support of their
contention, they cite 532(d) of the Local Government Code of 1991, which provides that: ". .
. elections for the kabataang barangay conducted under Batas Pambansa Blg. 337 at any time
between January 1, 1988 and January 1, 1992 shall be considered as the first elections
provided for in this Code. The term of office of the kabataang barangay officials elected within
the said period shall be extended correspondingly to coincide with the term of office of those
elected under this Code." It was precisely to foreclose any question regarding the validity of
KB elections held in the aftermath of the EDSA revolution and upon the effectivity of the new
Local Government Code that the exception clause of 532(d) was inserted. Section 532(d)
may thus be deemed to be a curative law. Curative laws, which in essence are retrospective in
effect, are enacted to validate acts done which otherwise would be invalid under existing laws,
by considering them as having complied with the existing laws. Such laws are recognized in

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this jurisdiction.
6. CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION CLAUSE; EXEMPTION OF
BARANGAYS IN MANILA FROM HOLDING ELECTION, NOT DISCRIMINATION. It is finally
contended that the exemption of the barangays of the City of Manila from the requirement to
hold elections for SK officers on December 4, 1992 would deny the youth voters in those
barangays of the equal protection of laws. Respondents claim that only in the barangays in the
City of Manila, which then numbered 897, were elections for SK not held in 1992 on the
ground that between January 1, 1988 and January 1, 1992 there had already been SK
elections held, when, according to petitioners own evidence, during that period, SK elections
had actually been conducted in 5,000 barangays. Whether this claim is true cannot be
ascertained from the records of this case. Merely showing that there were 5,000 barangays
which similarly held KB elections between January 1, 1988 and January 1, 1992 does not
prove that despite that fact these same barangays were permitted to hold elections on
December 4, 1992. For one thing, according to the Manila Bulletin issue of November 18, 1992
(p. 9), 568 barangays in the Province of Bulacan did not have SK elections on December 4,
1992 either, because they already had elections between January 1, 1988 and January 1,
1992. For another, even assuming that only barangays in Manila were not permitted to hold
SK elections on December 4, 1992 while the rest of the 5,000 barangays were allowed even if
KB elections had already been held there before, this fact does not give the youth voters in
the 897 Manila barangays ground for complaint because what the other barangays did was
contrary to law. There is no discrimination here.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision dated January 19, 1993 of the
Regional Trial Court of Manila (Branch 36), 1 nullifying an order of the Department of Interior
and Local Government (DILG), which in effect cancelled the general elections for the
Sangguniang Kabataan (SK) slated on December 4, 1992 in the City of Manila, on the ground
that the elections previously held on May 26, 1990 served the purpose of the first elections for
the SK under the Local Government Code of 1991 (R.A. No. 7160).
Section 423 of the Code provides for a SK in every barangay, to be composed of a chairman,
seven (7) members, a secretary, and a treasurer. Section 532(a) provides that the first
elections for the SK shall be held thirty (30) days after the next local elections. The Code took
effect on January 1, 1992.
The first local elections under the Code were held on May 11, 1992. Accordingly, on August
27, 1992, the Commission on Elections issued Resolution No. 2499, providing guidelines for
the holding of the general elections for the SK on September 30, 1992. The guidelines placed
the SK elections under the direct control and supervision of the DILG, with the technical
assistance of the COMELEC. 2 After two postponements, the elections were finally scheduled
on December 4, 1992.

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Accordingly, registration in the six districts of Manila was conducted. A total of 152,363
youngsters, aged 15 to 21 years old, registered, 15,749 of them filing certificates of
candidacies. The City Council passed the necessary appropriations for the elections.
On September 18, 1992, however, the DILG, through then Secretary Rafael M. Alunan III,
issued a letter-resolution "exempting" the City of Manila from holding elections for the SK on
the ground that the elections previously held on May 26, 1990 were to be considered the first
under the newly-enacted Local Government Code. The DILG acted on a letter of Joshue R.
Santiago, acting president of the KB City Federation of Manila and a member of City Council of
Manila, which called attention to the fact that in the City of Manila elections for the Kabataang
Barangay (the precursor of the Sangguniang Kabataan) had previously been held on May 26,
1990. In its resolution, the DILG stated:chanrob1es virtual 1aw library
[A] close examination of . . . RA 7160 would readily reveal the intention of the legislature to
exempt from the forthcoming Sangguniang Kabataan elections those kabataang barangay
chapters which may have conducted their elections within the period of January 1, 1988 and
January 1, 1992 under BP 337. Manifestly the term of office of those elected KB officials have
been correspondingly extended to coincide with the term of office of those who may be elected
under RA 7160.
On November 27, 1992 private respondents, claiming to represent the 24,000 members of the
Katipunan ng Kabataan, filed a petition for certiorari and mandamus in the RTC of Manila to
set aside the resolution of the DILG. They argued that petitioner Secretary of Interior and
Local Government had no power to amend the resolutions of the COMELEC calling for general
elections for SKs and that the DILG resolution in question denied them the equal protection of
the laws.
On November 27, 1992, the trial court, through Executive Judge, now COMELEC Chairman,
Bernardo P. Pardo, issued an injunction, ordering petitioners "to desist from implementing the
order of the respondent Secretary dated September 18, 1992, . . . until further orders of the
Court." On the same day, he ordered petitioners "to perform the specified pre-election
activities in order to implement Resolution No. 2499 dated August 27, 1992 of the Commission
on Elections providing for the holding of a general election of the Sangguniang Kabataan on
December 4, 1992 simultaneously in every barangay throughout the
country." chanroblesvirtuallawlibrary:red
The case was subsequently reraffled to Branch 36 of the same court. On January 19, 1993,
the new judge, Hon. Wilfredo D. Reyes, rendered a decision, holding that (1) the DILG had no
power to "exempt" the City of Manila from holding SK elections on December 4, 1992 because
under Art. IX, C, 2(1) of the Constitution the power to enforce and administer "all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall"
is vested solely in the COMELEC; (2) the COMELEC had already in effect determined that there
had been no previous elections for KB by calling for general elections for SK officers in every
barangay without exception; and (3) the "exemption" of the City of Manila was violative of the
equal protection clause of the Constitution because, according to the DILGs records, in 5,000
barangays KB elections were held between January 1, 1988 and January 1, 1992 but only in
the City of Manila, where there were 897 barangays, was there no elections held on December
4, 1992.

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Petitioners sought this review on certiorari. They insist that the City of Manila, having already
conducted elections for the KB on May 26, 1990, was exempted from holding elections on
December 4, 1992. In support of their contention, they cite 532(d) of the Local Government
Code of 1991, which provides that:chanrob1es virtual 1aw library
All seats reserved for the pederasyon ng mga sangguniang kabataan in the different
sanggunians shall be deemed vacant until such time that the sangguniang kabataan chairmen
shall have been elected and the respective pederasyon presidents have been selected:
Provided, That, elections for the kabataang barangay conducted under Batas Pambansa Blg.
337 at any time between January 1, 1988 and January 1, 1992 shall be considered as the first
elections provided for in this Code. The term of office of the kabataang barangay officials
elected within the said period shall be extended correspondingly to coincide with the term of
office of those elected under this Code. (emphasis added)
They maintain that the Secretary of the DILG had authority to determine whether the City of
Manila came within the exception clause of 532(d) so as to be exempt from holding the
elections on December 4, 1992.
The preliminary question is whether the holding of the second elections on May 13, 1996 3
rendered this case moot and academic. There are two questions raised in this case. The first is
whether the Secretary of Interior and Local Government can "exempt" a local government unit
from holding elections for SK officers on December 4, 1992 and the second is whether the
COMELEC can provide that "the Department of Interior and Local Government shall have direct
control and supervision over the election of sangguniang kabataan with the technical
assistance by the Commission on Elections."cralaw virtua1aw library
We hold that this case is not moot and that it is in fact necessary to decide the issues raised
by the parties. For one thing, doubt may be cast on the validity of the acts of those elected in
the May 26, 1990 KB elections in Manila because this Court enjoined the enforcement of the
decision of the trial court and these officers continued in office until May 13, 1996. For
another, this case comes within the rule that courts will decide a question otherwise moot and
academic if it is "capable of repetition, yet evading review." 4 For the question whether the
COMELEC can validly vest in the DILG the control and supervision of SK elections is likely to
arise in connection with every SK election and yet the question may not be decided before the
date of such elections.
In the Southern Pacific Terminal case, where the rule was first articulated, appellants were
ordered by the Interstate Commerce Commission to cease and desist from granting a shipper
what the ICC perceived to be preferences and advantages with respect to wharfage charges.
The cease and desist order was for a period of about two years, from September 1, 1908
(subsequently extended to November 15), but the U.S. Supreme Court had not been able to
hand down its decision by the time the cease and desist order expired. The case was decided
only on February 20, 1911, more than two years after the order had expired. Hence, it was
contended that the case had thereby become moot and the appeal should be dismissed. In
rejecting this contention, the Court held:chanrob1es virtual 1aw library
The question involved in the orders of the Interstate Commerce Commission are usually
continuing (as are manifestly those in the case at bar), and these considerations ought not to
be, as they might be, defeated, by short-term orders, capable of repetition, yet evading

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review, and at one time the government, and at another time the carriers, have their rights
determined by the Commission without a chance of redress. 5
In Roe v. Wade, 6 petitioner, a pregnant woman, brought suit in 1970 challenging antiabortion statutes of Texas and Georgia on the ground that she had a constitutional right to
terminate her pregnancy at least within the first trimester. The case was not decided until
1973 when she was no longer pregnant. But the U.S. Supreme Court refused to dismiss the
case as moot. It was explained:" [W]hen, as here, pregnancy is a significant fact in the
litigation, the normal 266-day human gestation period is so short that the pregnancy will come
to term before the usual appellate process is complete. If that termination makes a case moot,
pregnancy litigation seldom will survive. Our laws should not be that rigid. Pregnancy provides
a classic justification for a conclusion of nonmootness. It truly could be capable of repetition,
yet evading review." 7
We thus reach the merits of the questions raised in this case. The first question is whether
then DILG Secretary Rafael M. Alunan III had authority to determine whether under 532(d)
of the Local Government Code, the City of Manila was required to hold its first elections for SK.
As already stated, petitioners sustain the affirmative side of the proposition. On the other
hand, respondents argue that this is a power which Art. IX, C, 2(1) of the Constitution vests
in the COMELEC. Respondents further argue that, by mandating that elections for the SK be
held on December 4, 1992 "in every barangay," the COMELEC in effect determined that there
had been no elections for the KB previously held in the City of Manila.
We find the petition to be meritorious.
First. As already stated, by 4 of Resolution No. 2499, the COMELEC placed the SK elections
under the direct control and supervision of the DILG. Contrary to respondents contention, this
did not contravene Art. IX, C, 2(1) of the Constitution which provides that the COMELEC shall
have the power to "enforce and administer all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum, and recall." Elections for SK officers are not
subject to the supervision of the COMELEC in the same way that, as we have recently held,
contests involving elections of SK officials do not fall within the jurisdiction of the COMELEC. In
Mercado v. Board of Election Supervisors, 8 it was contended thatchanroblesvirtual|awlibrary
COMELEC Resolution No. 2499 is null and void because: (a) it prescribes a separate set of
rules for the election of the SK Chairman different from and inconsistent with that set forth in
the Omnibus Election Code, thereby contravening Section 2, Article 1 of the said Code which
explicitly provides that "it shall govern all elections of public officers" ; and, (b) it constitutes a
total, absolute, and complete abdication by the COMELEC of its constitutionally and statutorily
mandated duty to enforce and administer all election laws as provided for in Section 2(1),
Article IX-C of the Constitution; Section 52, Article VIII of the Omnibus Election Code; and
Section 2, Chapter 1, Subtitle C, Title 1, Book V of the 1987 Administrative Code. 9
Rejecting this contention, this Court, through Justice Davide, held:chanrob1es virtual 1aw
library
Section 252 of the Omnibus Election Code and that portion of paragraph (2), Section 2, Article
IX-C of the Constitution on the COMELECs exclusive appellate jurisdiction over contests
involving elective barangay officials refer to the elective barangay officials under the pertinent

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laws in force at the time the Omnibus Election Code was enacted and upon the ratification of
the Constitution. That law was B.P. Blg. 337, otherwise known as the Local Government Code,
and the elective barangay officials referred to were the punong barangay and the six
sangguniang bayan members. They were to be elected by those qualified to exercise the right
of suffrage. They are also the same officers referred to by the provisions of the Omnibus
Election Code of the Philippines on election of barangay officials. Metropolitan and municipal
trial courts had exclusive original jurisdiction over contests relating to their election. The
decisions of these courts were appealable to the Regional Trial Courts.
x

In the light of the foregoing, it is indisputable that contests involving elections of SK (formerly
KB) officials do not fall within Section 252 of the Omnibus Election Code and paragraph 2,
Section 2, Article IX-C of the Constitution and that no law in effect prior to the ratification of
the Constitution had made the SK chairman an elective barangay official. His being an exofficio member of the sangguniang barangay does not make him one for the law specifically
provides who are its elective members, viz., the punong barangay and the seven regular
sangguniang barangay members who are elected at large by those who are qualified to
exercise the right of suffrage under Article V of the Constitution and who are duly registered
voters of the barangay. 10
The choice of the DILG for the task in question was appropriate and was in line with the
legislative policy evident in several statutes. Thus, P.D. No. 684 (April 15, 1975), in creating
Kabataang Barangays in every barangay throughout the country, provided in 6 that the
"Secretary of Local Government and Community Development shall promulgate such rules and
regulations as may be deemed necessary to effectively implement the provisions of this
Decree." Again, in 1985 Proclamation No. 2421 of the President of the Philippines, in calling
for the general elections of the Kabataang Barangay on July 13-14, 1985, tasked the then
Ministry of Local Government, the Ministry of Education, Culture and Sports, and the
Commission on Elections to assist the Kabataang Barangay in the conduct of the elections. On
the other hand, in a Memorandum Circular dated March 7, 1988, President Corazon C. Aquino
directed the Secretary of Local Government to issue the necessary rules and regulations for
effecting the representation of the Kabataang Barangay, among other sectors, in the
legislative bodies of the local government units.
The role of the COMELEC in the 1992 elections for SK officers was by no means
inconsequential. DILG supervision was to be exercised within the framework of detailed and
comprehensive rules embodied in Resolution No. 2499 of the COMELEC. What was left to the
DILG to perform was the enforcement of the rules.
Second. It is contended that, in its resolution in question, the COMELEC did not name the
barangays which, because they had conducted kabataang barangay elections between January
1, 1988 and January 1, 1992, were not included in the SK elections to be held on December 4,
1992. That these barangays were precisely to be determined by the DILG is, however, fairly
inferable from the authority given to the DILG to supervise the conduct of the elections. Since
532(d) provided for kabataang barangay officials whose term of office was extended beyond
1992, the authority to supervise the conduct of elections in that year must necessarily be
deemed to include the authority to determine which kabataang barangay would not be

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included in the 1992 elections.

The authority granted was nothing more than the ascertainment of a fact, namely, whether
between January 1, 1988 and January 1, 1992 elections had been held in a given kabataang
barangay. If elections had been conducted, then no new elections had to be held on December
4, 1992 since by virtue of 532(d) the term of office of the kabataang barangay officials so
elected was "extended correspondingly to coincide with the term of office of those elected
under [the Local Government Code of 1991]." In doing this, the Secretary of Interior and Local
Government was to act merely as the agent of the legislative department, to determine and
declare the event upon which its expressed will was to take effect. 11 There was no undue
delegation of legislative power but only of the discretion as to the execution of a law. That this
is constitutionally permissible is the teaching of our cases. 12
Third. Respondents claim, however, that the May 26, 1990 KB elections in Manila were void
because (a) they were called at the instance of then Mayor Gemiliano C. Lopez who did not
have authority to do so and (b) it was not held under COMELEC supervision.
The 1990 elections for the Kabataang Barangay were called by then Manila Mayor Gemiliano
C. Lopez, Jr., who in his Executive Order No. 21 dated April 25, 1990 stated:chanrob1es
virtual 1aw library
WHEREAS, the Kabataang Barangay as an organization provided for under Batas Pambansa
Bilang 337, has been practically dormant since the advent of the present national
administration;
WHEREAS, there is an urgent need to involve the youth in the affairs and undertakings of the
government to ensure the participation of all sectors of our population in the task of nation
building;
WHEREAS, the last elections for the Kabataang Barangay officers were held in November 1985
yet, which is over their three years term of office;
WHEREAS, most of the present crop of KB officers are way past the age limit provided for
under the law;
x

The elections were actually held on May 26, 1990 in the 897 barangays of Manila. Later, on
June 30, 1990, KB City Federation elections were conducted.
It was precisely to foreclose any question regarding the validity of KB elections held in the
aftermath of the EDSA revolution and upon the effectivity of the new Local Government Code
that the exception clause of 532(d) was inserted. The proceedings of the Bicameral
Conference Committee which drafted the Code show the following: 13
CHAIRMAN DE PEDRO: Isa-cite na lang ko ano iyong title o chapter o section, ha!
HON. LINA: . . .

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Page 436, lines 13 to 14 delete within eighteen months prior to December 31, 1990, and in
lieu thereof, insert from 1988 up to the effectivity of the Code. The rationale. . . .
CHAIRMAN DE PEDRO: How should it be read?
HON. LINA: It will read as follows: "Provided however, that the Local Government Units which
have conducted elections for the Kabataang Barangay as provided for, in Batas Pambansa
Bilang 337, up to the effectivity. . . ."cralaw virtua1aw library
CHAIRMAN DE PEDRO: So, any deletion from the word "within," ha, up to. . . .
HON. LINA: Remove the words, the phrase, "within eighteen months prior to December 31,
1990, and insert from 1988 up to the effectivity of this Code."cralaw virtua1aw library
CHAIRMAN DE PEDRO: From?
HON. LINA: From 1988 up to the effectivity of this Code. Kasi meron nang mga election, eh,
na ginawa, eh. There are five thousand barangays, based on the record of the DILG, out of
forty thousand, imagine that, na nag-conduct na ng election nila based on the KB Constitution
and By-Laws, and theyre sitting already, now if we do not recognize that, mag[ka]karoon sila
ng question.
CHAIRMAN DE PEDRO: Accepted, Mr. Chairman.
Section 532(d) may thus be deemed to be a curative law. Curative laws, which in essence
are retrospective in effect, are enacted to validate acts done which otherwise would be invalid
under existing laws, by considering them as having complied with the existing laws. Such laws
are recognized in this jurisdiction. 14
Fourth. It is finally contended that the exemption of the barangays of the City of Manila from
the requirement to hold elections for SK officers on December 4, 1992 would deny the youth
voters in those barangays of the equal protection of laws. Respondents claim that only in the
barangays in the City of Manila, which then numbered 897, were elections for SK not held in
1992 on the ground that between January 1, 1988 and January 1, 1992 there had already
been SK elections held, when, according to petitioners own evidence, during that period, SK
elections had actually been conducted in 5,000 barangays.
Whether this claim is true cannot be ascertained from the records of this case. Merely showing
that there were 5,000 barangays which similarly held KB elections between January 1, 1988
and January 1, 1992 does not prove that despite that fact these same barangays were
permitted to hold elections on December 4, 1992. For one thing, according to the Manila
Bulletin issue of November 18, 1992 (p. 9), 568 barangays in the Province of Bulacan did not
have SK elections on December 4, 1992 either, because they already had elections between
January 1, 1988 and January 1, 1992. For another, even assuming that only barangays in
Manila were not permitted to hold SK elections on December 4, 1992 while the rest of the
5,000 barangays were allowed even if KB elections had already been held there before, this
fact does not give the youth voters in the 897 Manila barangays ground for complaint because
what the other barangays did was contrary to law. There is no discrimination

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here.chanroblesvirtuallawlibrary
In People v. Vera 15 this Court struck down the Probation Law because it permitted unequal
application of its benefits by making its applicability depend on the decision of provincial
governments to appropriate or not to appropriate funds for the salaries of probation officers,
with the result that those not disposed to allow the benefits of probations to be enjoyed by
their inhabitants could simply omit to provide for the salaries of probation officers. The
difference between that case and the one at bar lies in the fact that what youth voters in the
other barangays might have been allowed was not a right which was denied to youth voters in
Manila. If those barangays were not entitled to have SK elections on December 4, 1992 but
nevertheless were allowed to have such elections, that fact did not mean those in Manila
should similarly have been allowed to conduct elections on December 4, 1992 because the fact
was that they already had their own, just two years before on May 26, 1990. Respondents
equal protection argument violates the dictum that one wrong does not make another wrong
right.
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 36 is REVERSED and
the case filed against petitioner by private respondents is DISMISSED.
SO ORDERED.
Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco,
Hermosisima, Jr. and Panganiban, JJ., concur.
Narvasa, C.J. and Torres, Jr., J., are on leave.
Endnotes:

1. Per Judge Wilfredo D. Reyes, Rollo, pp. 72-80.

2. Resolution No. 2499, 2 and 4.
3. The second elections were held pursuant to R.A. No. 7808, approved on September 2, 1994
which provided that "the regular elections for the sangguniang kabataan shall be held on the
first Monday of May 1996: Provided, further, That the succeeding regular elections for the
sangguniang kabataan shall be held every three (3) years thereafter; Provided, finally, that
the national, special metropolitan, provincial, city, and municipal federations of the
sangguniang kabataan shall conduct the election of their respective officers thirty (30) days
after the May 1996 sangguniang kabataan elections on dates to be scheduled by the
Commission on Elections."cralaw virtua1aw library
4. Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 55 L.Ed. 310 (1911); Moore v. Ogilvie,
394 U.S. 814, 23 L.Ed.2d 1 (1969) (challenge to signature requirement on nominating
petitions, election had been held before the U.S. Supreme Court could decide case); Dunn v.
Blumstein, 405 U.S. 330, 31 L.Ed.2d 274 (1972) (U.S. Supreme Court decided merits of a
challenge to durational residency requirement for voting even though Blumstein had in the
meantime satisfied that requirement).

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5. Id., at 515, 55 L.Ed at 316.

6. 410 U.S. 113, 35 L.Ed.2d 147 (1973).
7. Id., at 125, 35 L.Ed.2d at 161
8. 243 SCRA 422 (1995).
9. Id., at 426.
10. Id., at 434.
11. Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L.Ed. 469 (1935).
12. Cruz v. Youngberg, 56 Phil. 234 (1931); Edu v. Ericta, 146 Phil. 469 (1970).
13. Records of Deliberations of the Bicameral Conference Committee on Local Government,
May 31, 1991, pp. 4-5 (emphasis added).
14. Municipality of San Narciso, Quezon v. Mendez, Sr., 239 SCRA 11 (1994).
15. 65 Phil. 56 (1937).

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EN BANC
G.R. Nos. 122250 & 122258 July 21, 1997
EDGARDO C. NOLASCO, Petitioner, v. COMMISSION ON ELECTIONS, MUNICIPAL
BOARD OF CANVASSERS, MEYCAUAYAN, BULACAN, and EDUARDO A.
ALARILLA, Respondents.
FLORENTINO P. BLANCO, Petitioner, v. COMMISSION ON ELECTIONS, and EDUARDO A.
ALARILLA, Respondents.
PUNO, J.:
First, we rewind the facts. The election for mayor of Meycauayan, Bulacan was held on May 8,
1995. The principal protagonists were petitioner Florentino P. Blanco and private respondent
Eduardo A. Alarilla. Blanco received 29,753 votes, while Alarilla got 23,038 votes. 1 Edgardo
Nolasco was elected Vice-Mayor with 37,240 votes.
On May 9, 1995, Alarilla filed with the COMELEC a petition to disqualify Blanco. He alleged:
xxx xxx xxx
4. Based on intelligence reports that respondent was maintaining his own "private army" at his
aforesaid resident, P/Insp. Ronaldo O. Lee of the Philippine National Police assigned with the
Intelligence Command at Camp Crame, applied for and was granted search warrant no. 95147 by Branch 37 of the Regional Trial Court of Manila on 5 May 1995. A copy of the said
search warrant is attached as Annex "A" hereof.
5. In compliance with said search warrant no. 95-147, an elite composite team of the PNP
Intelligence Command, Criminal Investigation Service (CIS), and Bulacan Provincial
Command, backed up by the Philippine National Police Special Action Force, accompanied by
mediamen who witnessed and recorded the search by video and still cameras, raided the
house of respondent Florentino Blanco at his stated address at Bancal, Meycauayan, Bulacan.
6. Enclosed as Annex "A-1" is a video tape taken of the proceedings during the raid.
7. The composite team was able to enter the said premises of respondent Florentino Blanco
where they conducted a search of the subject firearms and ammunition.
8. The search resulted in the arrest of six (6) men who were found carrying various high
powered firearms without any license or authority to use or possess such long arms. These
persons composing respondent's "private army," and the unlicensed firearms are as follows:
A. Virgilio Luna y Valderama -

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1 PYTHOM (sic) Cal . 347 SN 26946

with six (6) Rounds of Ammo.
2 INGRAM M10 Cal. 45 MP with
Suppressor SN: 45457 with two
(2) Mags and 54 Rounds of Ammo.
B. Raymundo Bahala y Pon 1. HKMP5 Sn. C334644 with two (2)
Mags and 47 Rounds of Ammo.
C. Roberto Santos y Sacris 1. Smith and Wesson 357 Magnum Sn:
522218 with six (6) Rounds of
Ammo.
D. Melchor Cabanero y Oreil 1. Armscor 12 Gauge with three (3)
Rounds of Ammo.
E. Edgardo Orteza y Asuncion 1. Paltik Cal. 38 Rev with six (6)
Rounds of Ammo.
F. Francisco Libari y Calimag 1. Paltik Cal. 38 SN: 36869
Copies of the inventory receipts are hereto attached as Annexes "B" to "B-5" hereof.
9. During the search, members of the composite team saw through a large clear glass window,
respondent's Galil assault rifle on a sofa inside a closed room of the subject premises.
10. Not allowed entry thereto by respondent and his wife, the members of the composite
police-military team applied for the issuance of a second search warrant (Annex "B-6") so that
they could enter the said room to seize the said firearm.
11. While waiting for the issuance of the second search warrant, respondent's wife and
respondent's brother, Mariano Blanco, claiming to be the campaign manager of respondent in
the Nationalist People's Coalition Party, asked permission to enter the locked room so they
could withdraw money in a vault inside the locked room to pay their watchers, and the
teachers of Meycauayan in the 8 May 1995 elections.

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12. For reasons not known to petitioner, Mrs. Florentino Blanco and Mariano Blanco, were
allowed to withdraw ten (10) large plastic bags from the vault.
13. When the said PNP composite team examined the ten (10) black plastic bags, they found
out that each bag contained ten (10) shoe boxes. Each shoe box when examined contained
200 pay envelopes, and each pay envelope when opened contained the amount of P1,000.00.
When questioned, respondent's brother Mariano Blanco and respondent's wife, admitted to the
raiding team that the total amount of money in the ten (10) plastic bags is P10,000,000.00.
14. The labels found in the envelope shows that the money were intended as respondent's
bribe money to the teachers of Meycauayan. Attached as Annex "C" is the cover of one of the
shoe boxes containing the inscription that it is intended to the teachers of Brgy. Lawa,
Meycauayan, Bulacan.
15. On election day 8 May 1995, respondent perpetrated the most massive vote-buying
activity ever in the history of Meycauayan politics. Attached as Annex "D" is the envelope
where this P10,000,000.00 was placed in 100 peso denominations totalling one thousand
pesos per envelope with the inscription "VOTE!!! TINOY."
This massive vote-buying activity was engineered by the respondent through his organization
called "MTB" or "MOVEMENT FOR TINOY BLANCO VOLUNTEERS." The chairman of this
movement is respondent's brother, Mariano P. Blanco, who admitted to the police during the
raid that these money were for the teachers and watchers of Meycauayan, Bulacan.
Attached as Annex "E" hereof is an MTB ID issued to one Armando Bulan of Precinct 77-A,
Brgy. Jasmin, Bancal, Meycauayan, Bulacan. You will note that the ID is perforated in the
middle. The purpose is for the voter to tear the office copy and return it to respondent's
headquarters to receive the balance of the P500.00 of the bribe money after voting for
respondent during the elections. The voter will initially be given a down-payment of 500.00.
16. This massive vote-buying was also perpetrated by respondent thru the familiar use of
flying voters. Attached as Annex "F" hereof is a copy of the Police Blotter dated 8 May 1995
showing that six (6) flying voters were caught in different precincts of Meycauayan, Bulacan,
who admitted after being caught and arrested that they were paid P200.00 to P300.00 by
respondent and his followers, to vote for other voters in the voter's list.
17. Not satisfied, and with his overflowing supply of money, respondent used another scheme
as follows. Respondent's paid voter will identify his target from the list of voter and will
impersonate said voter in the list and falsify his signature.
Attached as Annex "G" hereof is the Minutes of Voting and Counting of Votes in Precinct No.
26, Brgy. Calvario, Meycauayan, Bulacan. Annex "G-1" is the statement of one Ma. Luisa de
los Reyes Cruz stating that when she went to her precinct to vote, her name was already
voted upon by another person. This entry was noted by Leticia T. Villanco, Poll Chairman;
Estelita Artajo, - Poll Clerk; and Nelson John Nito - Poll Member.
18. Earlier before the election, respondent used his tremendous money to get in the good
graces of the local Comelec Registrar, who was replaced by this Office upon the petition of the

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people of Meycauayan. Attached as Annex "H" hereof is an article in the 3 May 1995 issue of
Abante entitled "1 M Suhol sa Comelec Registrar."
19. The second search warrant on respondent's residence yielded to more firearms and
thousands of rounds of ammunition. These guns were used by respondent to terrorize the
population and make the people afraid to complain against respondent's massive vote buying
and cheating in today's elections. Respondent's bribery of the teachers ensured the
implementation of his vote buying ballot box switching, impersonations, and other cheating
schemes.
Attached as Annexes "I-1" to "I-2" are the pertinent Receipts of the guns and ammunitions
seized from respondent. Attached as Annex "J" is a Certification to the same effect.
20. The above acts committed by respondent are clear grounds for disqualification under Sec.
68 of the Omnibus Election Code for giving money to influence, induce or corrupt the voters or
public officials performing election functions; for committing acts of terrorism to enhance his
candidacy; and for spending in his election campaign an amount in excess of that allowed by
the Election Code. There are only 97,000 registered voters in Meycauayan versus respondent's
expenses of at least P10,000,000.00 as admitted above. (Emphasis supplied).
On May 15, 1995, Alarilla filed a Very Urgent Ex Parte Motion to Suspend Proclamation. The
COMELEC (First Division) granted the motion after finding that there was a "probable
commission of election offenses which are grounds for disqualification pursuant to the
provisions of section 68 of the Omnibus Election Code (BP 881), and the evidence in support
of disqualification is strong." It directed the Municipal Board of Canvassers "to complete the
canvassing of election returns of the municipality of Meycauayan, but to suspend proclamation
of respondent Florentino P. Blanco should he obtain the winning number of votes for the
position of Mayor of Meycauayan, Bulacan until such time when the petitions for
disqualification against him shall have been resolved."
On May 25, 1995, Blanco filed a Motion to Lift or Set Aside the Order suspending his
proclamation. On May 29, 1995, he filed his Answer to the petition to disqualify him.
On May 30, 1995, the COMELEC (First Division) heard the petition to disqualify Blanco. The
parties thereafter submitted their position papers. 2 Blanco even replied to the position paper
of Alarilla on June 9, 1995.
On August 15, 1995, the COMELEC (First Division) disqualified Blanco on the ground of votebuying, viz.: 3
xxx xxx xxx
WHEREFORE, premises considered, the Commission (First Division) RESOLVES to DISQUALIFY
Respondent Florentino P. Blanco as a candidate for the Office of Mayor of Meycauayan,
Bulacan in the May 8, 1995 elections for having violated Section 261 (a) of the Omnibus
Election Code. The Order suspending the proclamation of herein Respondent is now made
PERMANENT. The Municipal Board of Canvassers of Meycauayan, Bulacan shall immediately

Page 298 of 492

reconvene and, on the basis of the completed canvass of the election returns, determine the
winner out of the remaining qualified candidates who shall be immediately proclaimed.
SO ORDERED.
Blanco moved for reconsideration on August 19, 1995 in the COMELEC en banc. Nolasco, as
vice mayor, intervened in the proceedings. 4 He moved for reconsideration of that part of the
resolution directing the Municipal Board of Canvassers to "immediately reconvene and, on the
basis of the completed canvass of the election returns, determine the winner out of the
remaining qualified candidates who shall be immediately proclaimed." He urged that as vicemayor he should be declared mayor in the event Blanco was finally disqualified. The motions
were heard on September 7, 1995. The parties were allowed to file their memoranda with
right of reply. On October 23, 1995, the COMELEC en banc denied the motions for
reconsideration.
In this petition for certiorari, 5 Blanco contends:
xxx xxx xxx
18. Respondent COMELEC En Banc committed grave abuse of discretion amounting to lack or
excess of jurisdiction and acted arbitrarily in affirming en toto and adopting as its own the
majority decision of the First Division in that:
18.1 It upheld the validity of the May 17, 1995 order suspending proclamation of Petitioner
Blanco herein as the winning candidate for Mayor of Meycauayan without the benefit of any
notice or hearing in gross and palpable violation of Blanco's constitutional right to due process
of law.
18.2 It violated the provisions of COMELEC Res. No. 2050 as amended, prescribing the
procedure for disposing of disqualification cases arising out of the prohibited acts mentioned in
Sec. 68 of the Omnibus Election Code, which Resolution this Honorable Tribunal explicitly
sanctioned in the case of Lozano v. Yorac. Moreover, it (COMELEC) violated Blanco's right to
equal protection of the laws by setting him apart from other respondents facing similar
disqualification suits whose case were referred by COMELEC to the Law Department pursuant
to Com. Res. No. 2050 and ordering their proclamation - an act which evidently discriminated
against Petitioner Blanco herein.
18.3 It decided Petitioner Blanco's disqualification case in a SUMMARY PROCEEDING in
violation of law and the precedents which consistently hold that questions of VOTE-BUYING,
terrorism and similar such acts should be resolve in a formal election protest where the issue
of vote buying is subjected to a full-dress hearing instead of disposing of the issue in a
summary proceeding;
18.4 It declared Petitioner Blanco as having been involved in a conspiracy to engage in VOTEBUYING without that minimum quantum of proof required to establish a disputable
presumption of vote-buying in gross and palpable violation of the provisions of Section 28,
Rep. Act. 6646;

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18.5 It ordered the proclamation of a SECOND PLACER as the duly elected Mayor of
Meycauayan, Bulacan, in gross violation and utter disregard of the doctrine laid down by this
Honorable Supreme Court in the case of LABO vs. COMELEC which was reiterated only recently
in the case of Aquino vs. Syjuco.
On the other hand, Nolasco contends in his petition for certiorari 6 that he should be declared
as Mayor in view of the disqualification of Blanco. He cites section 44 of R.A. No. 7160
otherwise known as the Local Government Code of 1991 and our decision in Labo
vs. COMELEC. 7
We shall first resolve the Blanco petition.
Blanco was not denied due process when the COMELEC (First Division) suspended his
proclamation as mayor pending determination of the petition for disqualification against him.
Section 6 of R.A. No. 6646 and sections 4 and 5 of the Rule 25 of the Comelec Rules of
Procedure merely require that evidence of guilt should be strong to justify the COMELEC in
suspending a winning candidate's proclamation. It ought to be emphasized that the
suspension order is provisional in nature and can be lifted when the evidence so warrants. It is
akin to a temporary restraining order which a court can issue ex-parte under exigent
circumstances.
In any event, Blanco was given all the opportunity to prove that the evidence on his
disqualification was not strong. On May 25, 1995, he filed a Motion to Lift or Set Aside the
Order suspending his proclamation. On May 29, 1995, he filed his Answer to the petition to
disqualify him. The COMELEC heard the petition. Blanco thereafter submitted his position
paper and reply to Alarilla's position paper. The COMELEC considered the evidence of the
parties and their arguments and thereafter affirmed his disqualification. The hoary rule is that
due process does not mean prior hearing but only an opportunity to be heard. The COMELEC
gave Blanco all the opportunity to be heard. Petitions for disqualification are subject to
summary hearings. 8
Blanco also faults the COMELEC for departing from the procedure laid down in COMELEC
Resolution 2050 as amended, in disqualification cases. The resolution pertinently provides:
xxx xxx xxx
Where a similar complaint is filed after election but before proclamation of the respondent
candidate the complaint shall, nevertheless, be dismissed as a disqualification case. However,
the complaint shall be referred for preliminary investigation to the Law Department. If, before
proclamation, the Law Department makes a prima facie finding of guilt and the corresponding
information has been filed with the appropriate trial court, the complainant may file a petition
for suspension of the proclamation of the respondent with the court before which the criminal
case is pending and the said court may order the suspension of the proclamation if the
evidence of guilt is strong.
It is alleged that the violation is fatal as it deprived Blanco of equal protection of our laws.

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We do not agree. It cannot be denied that the COMELEC has jurisdiction over proclamation
and disqualification cases. Article IX-C, section 2 of the Constitution endows the COMELEC the
all encompassing power to "enforce and administer all laws and regulations relative to the
conduct of an
election . . . ." We have long ruled that this broad power includes the power to cancel
proclamations.9 Our laws are no less explicit on the matter. Section 68 of B.P. Blg. 881
(Omnibus Election Code) provides:
Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is
declared by final decision of a competent court guilty of, or found by the Commission of having
(a) given money or other material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that allowed by this
Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96,
97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an immigrant
to a foreign country shall not be qualified to run for an elective office under this Code, unless
said person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the elections laws.
Section 6 of R.A. No. 6646 likewise provides:
Sec. 6. Effect of Disqualification Case - Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong.
Despite these laws and existing jurisprudence, Blanco contends that COMELEC must follow the
procedure in Resolution No. 2050 as amended. We hold that COMELEC cannot always be
straitjacketed by this procedural rule. The COMELEC has explained that the resolution was
passed to take care of the proliferation of disqualification cases at that time. It deemed it wise
to delegate its authority to its Law Department as partial solution to the problem. The May 8,
1995 elections, however, did not result in a surfeit of disqualification cases which the
COMELEC cannot handle. Hence, its decision to resolve the disqualification case of Blanco
directly and without referring it to its Law Department is within its authority, a sound exercise
of its discretion. The action of the COMELEC is in accord with Section 28 of R.A. No. 6646, viz:
xxx xxx xxx
Sec. 28. Prosecution of Vote-Buying and Vote-selling. - The presentation of a complaint for
violations of paragraph (a) or (b) of Section 261 of Batas Pambansa Blg. 881 supported by
affidavits of complaining witness attesting to the offer or promise by or of the voter's
acceptance of money or other consideration from the relatives, leaders or sympathizers of a
candidate, shall be sufficient basis for an investigation to be immediately conducted by the
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Commission, directly or through its duly authorized legal officers under Section 68 or Section
265 of said Batas Pambansa Blg. 881. (emphasis supplied)
xxx xxx xxx
Indeed, even Commissioner Maambong who dissented from the majority ruling, clings to the
view that "Resolution No. 2050 cannot divest the Commission of its duty to resolve
disqualification cases under the clear provision of section 6 of R.A. No. 6646." 10 Clearly too,
Blanco's contention that he was denied equal protection of the law is off-line. He was not the
object of any invidious discrimination. COMELEC assumed direct jurisdiction over his
disqualification case not to favor anybody but to discharge its constitutional duty of disposing
the case in a fair and as fast a manner as possible.
Blanco also urges that COMELEC erred in using summary proceedings to resolve his
disqualification case. Again, the COMELEC action is safely anchored on section 4 of its Rules of
Procedure which expressly provides that petitions for disqualification "shall be
heard summarily after due notice." Vote-buying has its criminal and electoral aspects.
Its criminal aspect to determine the guilt or innocence of the accused cannot be the subject of
summary hearing. However, its electoral aspect to ascertain whether the offender should be
disqualified from office can be determined in an administrative proceeding that is summary in
character.
The next issue is whether there is substantial evidence to prove the vote buying activities of
Blanco.
The factual findings of the COMELEC (First Division) are as follows: 11
xxx xxx xxx
Respondent argues that the claim of vote-buying has no factual basis because the affidavits
and sworn statements admitted as evidence against him are products of hearsay; inadmissible
because of the illegal searches; they violate the Rule of Res Inter Alios Acta and the offense of
vote-buying requires consummation.
We are not impressed.
A studied reading of the affidavits [Respondent's affidavit is unsigned] attached to the Reply of
the Respondent to the Position Paper of the Petitioner [Annexes 1, 2 and 3] would reveal that
they are in the nature of general denials emanating from individuals closely associated or
related to respondent Blanco.
The same holds true with the affidavits attached to Respondent's Position Paper [Annexes 1,
2, 3 and 4]. Said affidavits were executed by Blanco's political leaders and private secretary.
On the other hand, the affidavit of Romeo Burgos [Exhibit "E-1"] is rich in detail as to how the
alleged vote-buying was conducted.

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Moreover, the same is corroborated by object evidence in the nature of MTB [Movement for
Tinoy Blanco] cards which were in the possession of the affiants and allegedly used as a
means to facilitate the vote-buying scheme.
There are also admissions of certain individuals who received money to vote for Respondent
[Annexes "E-2", "E-3" , "E-4" , "E-5" ,"E-6", "E-7", "E-8", "E-9" and "E-10"].
On the day of the elections, two individuals were apprehended for attempting to vote for
Respondent when they allegedly are not registered voters of Meycauayan. A criminal
complaint for violation of section 261 [2] of BP 881 was filed by P/Sr. Inspector Alfred S.
Corpus on May 9, 1995 with the Municipal Trial Court of Bulacan. The same was docketed as
Criminal Case 95-16996 [Exhibit F-2].
Again, similar pay envelopes with money inside them were found in the possession of the
suspected flying voters.
The incident was corroborated by Adriano Llorente in his affidavit narrating the same [Exhibit
"F-1"]. Llorente, a poll watcher of Petitioner, was the one who accosted the two suspected
flying voters when the latter attempted to vote despite failing to locate their names in the
voter's list.
From this rich backdrop of detail, We are disappointed by the general denial offered by
Respondent. In People of the Philippines vs. Navarro, G.R. No. 96251, May 11, 1993, 222
SCRA 684, the Supreme Court noted that "Denial is the weakest defense" [page 692].
In People of the Philippines vs. Rolando Precioso, et al., G.R. No. 95890, May 12, 1993, 221
SCRA 1993, the Supreme Court observed that,
We have consistently ruled that denials if unsubstantiated by clear and convincing evidence
are negative and self-serving evidence which deserves no weight in law and cannot be given
greater evidentiary weight over the testimony of credible witnesses. Ergo, as between the
positive declarations of the prosecution witness and the negative statements of the accused,
the former deserves more credence. [page 754].
However, Respondent conveniently resorts to section 33, Rule 130 of the Revised Rules of
Court which states that a declaration of an accused acknowledging his guilt of the offense
charged, or of any offense necessarily included herein, may be given in evidence against him
[affiants who executed Exhibits E-1 to E-10] but not against Respondent.
There is no merit in this contention.
The affiants are not the accused. Their participation in the herein case is in the nature of
witnesses who have assumed the risk of being subsequently charged with violating Section
261 [1] of BP 881. In fact, their affidavits were sought by the Petitioner and not by any law
enforcement agency. Even Respondent admits this finding when he filed his Reply to
Petitioner's Position Paper and Motion to Refer for Preliminary Investigation and Filing of
Information in Court against the Persons Who Executed Exhibits E-1l to E-10 for Having

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Admitted Commission of Election Offense. If they were the accused, why file the motion?
Would not this be redundant if not irrelevant?
xxx xxx xxx
Another telling blow is the unexplained money destined for the teachers. Why such a huge
amount? Why should the Respondent, a mayoralty candidate, and according to his own
admission, be giving money to teachers a day before the elections? What were the peso bills
doing in pay envelopes with the inscription "VOTE!!! TINOY", and kept in shoe boxes with the
word "Teachers" written on the covers thereof ?
There is also something wrong with the issuance of the aforementioned MTB cards when one
considers the testimony of Burgos that more or less 50,000 of these cards, which is equivalent
to more or less 52% of the 97,000 registered voters of Meycauayan, Bulacan, were printed by
respondent; that there are only 443 precincts in Meycauayan; that under the law, a candidate
is allowed only one watcher per polling place and canvassing area; and, finally, that there is
no explanation at all by the respondent as to what these "watchers" did in order to get paid
P300.00 each.
xxx xxx xxx
Respondent also avers that for an allegation of vote-buying to prosper, the act of giving must
be consummated.
Section 281 [a] of BP 881 states "any person who gives, offers, or promises money . . ."
Section 28 of RA 6646 also states that "the giver, offeror, the promisor as well as the solicitor,
recipient and conspirator referred to in paragraphs [a] and [b] of section 261 of Batas
Pambansa Blg. 881 shall be liable as principals: . . . .
While the giving must be consummated, the mere act of offering or promising something in
consideration for someone's vote constitutes the offense of vote-buying.
In the case at bar, the acts of offering and promising money in consideration for the votes of
said affiants is sufficient for a finding of the commission of the offense of vote-buying.
These factual findings were affirmed by the COMELEC en banc against the lone dissent of
Commissioner Maambong.
There is an attempt to discredit these findings. Immediately obvious in the effort is the resort
to our technical rules of evidence. Again, our ingrained jurisprudence is that technical rules of
evidence should not be rigorously applied in administrative proceedings especially where the
law calls for the proceeding to be summary in character. More importantly, we cannot depart
from the settled norm of reviewing decisions of the COMELEC, i.e., that "this Court cannot
review the factual findings of the COMELEC absent a grave abuse of discretion and a showing
of arbitrariness in its decision, order or resolution." 12

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We now come to the petition of Nolasco that he should be declared as mayor in the event
Blanco is finally disqualified. 13 We sustain the plea. Section 44, Chapter 2 of the Local
Government Code of 1991 (R.A. No. 7160) is unequivocal, thus:
xxx xxx xxx
Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice
Mayor. - (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice
governor or vice mayor concerned shall become the governor or mayor. If a permanent
vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the
highest ranking sanggunian member or, in case of his permanent inability, the second highest
ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor,
as the case may be. Subsequent vacancies in the said office shall be filled automatically by the
other sanggunian members according to their ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking
sanggunian barangay member or, in case of his permanent inability, the second highest
ranking sanggunian member, shall become the punong barangay.
(c) A tie between or among the highest ranking sangguniang members shall be resolved by
the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of their
predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a
higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his
office.
For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be
determined on the basis of the proportion of votes obtained by each winning candidate to the
total number of registered voters in each distribution the immediately preceding election.
In the same vein, Article 83 of the Rules and Regulations Implementing, the Local Government
Code of 1991 provides:
xxx xxx xxx
Art. 83. Vacancies and Succession of Elective Local Officials. - (a) What constitutes permanent
vacancy - A permanent vacancy arises when an elective local official fills a higher vacant
office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily
resigns, or is otherwise permanently incapacitated to discharge the functions of his office.
(b) Permanent vacancies in the offices of the governor, vice governor, mayor and vice mayor (1) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor
or vice mayor concerned shall ipso facto become the governor or mayor. If a permanent

Page 305 of 492

vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the
highest ranking sanggunian member or, in case of his permanent inability, the second highest
ranking sanggunian member, shall ipso facto become the governor, vice governor, mayor or
vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled
automatically by the other sanggunian members according to their ranking as defined in this
Article.
Our case law is now settled that in a mayoralty election, the candidate who obtained the
second highest number of votes, in this case Alarilla, cannot be proclaimed winner in case the
winning candidate is disqualified. Thus, we reiterated the rule in the fairly recent case of Reyes
v. COMELEC,14 viz:
xxx xxx xxx
We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner
Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U.
Reyes.
That the candidate who obtains the second highest number of votes may not be proclaimed
winner in case the winning candidate is disqualified is now settled. The doctrinal instability
caused by see-sawing rulings has since been removed. In the latest ruling on the question,
this Court said:
To simplistically assume that the second placer would have received the other votes would be
to substitute our judgment for the mind of the voter. The second placer is just that, a second
placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He
could not be considered the first among qualified candidates because in a field which excludes
the disqualified candidate, the conditions would have substantially changed. We are not
prepared to extrapolate the results under the circumstances.
Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for
Reyes are presumed to have been cast in the belief that Reyes was qualified and for that
reason can not be treated as stray, void, or meaningless. The subsequent finding that he is
disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for
him.
Consequently, respondent COMELEC committed grave abuse of discretion insofar as it failed to
follow the above doctrine, a descendant of our ruling in Labo v. COMELEC. 15
A final word. The dispute at bar involves more than the mayoralty of the municipality of
Meycauayan,Bulacan. It concerns the right of suffrage which is the bedrock of
republicanism. Suffrage is the means by which our people express their sovereign
judgment. Its free exercise must be protected especially against the purchasing power of the
peso. As we succinctly held in People v. San Juan, 16"each time the enfranchised citizen goes
to the polls to assert this sovereign will, that abiding credo of republicanism is translated into
living reality. If that will must remain undefiled at the starting level of its expression and
application, every assumption must be indulged in and every guarantee adopted to assure the
unmolested exercise of the citizen's free choice. For to impede, without authority valid in law,

Page 306 of 492

the free and orderly exercise of the right of suffrage, is to inflict the ultimate indignity on the
democratic process."
IN VIEW WHEREOF, the resolution of the respondent COMELEC en banc dated October 23,
1995 is affirmed with the modification that petitioner Edgardo C. Nolasco is adjudged as Mayor
of Meycauyan, Bulacan in view of the disqualification of Florentino P. Blanco. No costs.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Vitug, Mendoza and Francisco, JJ., concur.
Panganiban, J., took no part.
Padilla, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ., are on leave.
Separate Opinions
BELLOSILLO, J.: concurring and dissenting
I find difficulty in concurring with the majority that the COMELEC order disqualifying Blanco is
based on substantial evidence; therefore I vote to set aside that order. I however join the
majority opinion that, as a result of the disqualification of Blanco, the Labo doctrine 1should
apply.
The law on vacancies and succession of elective local officials is very clear. Section 44 (a),
Chapter 2, R.A. No. 7160, otherwise known as The Local Government Code of 1991, provides
that "[i]f a permanent vacancy occurs in the office of the . . . mayor, the . . . vice mayor
concerned shall become the . . . mayor." Paragraph 2 of the same provision states that "a
permanent vacancy arises when an elective local official . . . fails to qualify . . . . These
provisions are echoed in Art. 83 of the Implementing Rules and Regulations of the Local
Government Code of 1991.
When the language of the law is clear, explicit and unequivocal, it admits no room for
interpretation, but simply application. This is a basic legal precept. In the issue at hand, I find
no necessity to make distinctions as the applicable law is clear. Accordingly, considering that
Blanco has been adjudged by the majority to be disqualified, he comes within the purview of
"fail(ing) to qualify" for the said office. And since a "permanent vacancy" has occurred in the
office of the mayor, Nolasco who is the duly elected vice mayor, and who now occupies the
position of mayor in an acting capacity, should succeed as provided for by law. And this is in
consonance with the pronouncements of this Court in Geronimo v. Ramos2 and Topacio
v. Paredes 3 which were reiterated in Labo v. COMELEC 4 . . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him.

Page 307 of 492

Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a plurality of the legal votes cast in the election (20
Corpus Juris 2nd, 243, p. 676).
The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle
the candidate who obtained the second highest number of votes to be declared the winner of
the elective office . . . .
The rightful assumption of Nolasco to the office of mayor is however only a consequence of
the disqualification of Blanco to which I dissent. For, I do not agree with the submission that
the COMELEC order disqualifying Blanco is based on substantial evidence. While the dossier of
evidence submitted by Alarilla to show that Blanco committed massive vote-buying may
appear at first blush to be overwhelming, a careful scrutiny of each piece of evidence does not
measure up. I simply find no evidence to link Blanco to the alleged vote-buying. Consequently,
I agree with Commissioner Maambong that Alarilla has failed to substantiate his allegation that
Blanco engaged in or had knowledge of and consented to the buying of votes.
Alarilla relies on several affidavits narrating incidents to prove that Blanco supposedly bought
votes. But aside from the inaccuracies and the doubtful origin of these affidavits, which were
executed only about a month after the petition to disqualify Blanco was filed, using fill-in-theblanks forms, none of the affiants was presented before respondent COMELEC to substantiate
the allegations. 5 At the very least, some affiants should have been presented in the hearings
supposedly conducted.
In his Petition (to disqualify Blanco), Alarilla alleged that "[w]hen the said PNP composite team
examined the ten (10) black plastic bags, they found out that each bag contained then (10)
shoe boxes. Each shoe box when examined contained 200 pay envelopes, and each pay
envelope when opened contained the amount of P1,000.00. When questioned, respondent's
brother (Mariano P. Blanco) and respondent's wife allegedly admitted to the raiding team that
the total amount of money in the ten (10) plastic bags is (was) P10,000,000.00." 6
But Alarilla has miserably failed to substantiate his allegations. He merely presented the sworn
statement of Orlando Mauricio y Labora who claims to have filmed the raid. But the
statements of Mauricio are not even consistent with the allegations of Alarilla in his Petition to
disqualify Blanco. In his Petition, Alarilla claims that each "pay envelope" contained
P1,000.00, 7 while in the affidavit of Mauricio it is stated that there were envelopes which
contained P2,000.00 (Exh. "A-3"). Alarilla should have presented at least one (1) member of
the PNP raiding team who supposedly examined the ten (10) black plastic bags and
questioned Blanco's brother and wife as to the amount of the supposed money. In the absence
of a credible testimony, the alleged admission of the brother and wife of Blanco that "the total
amount of money in the ten (10) plastic bags is P10,000,000.00" becomes quite doubtful. For,
the imputed admission is simply contrary to human nature and experience. If there really was
P10,000,000.00 in the plastic bags, there was no need to divulge the amount to the raiding
team. The Blancos could have just kept quiet and let the raiding team count the money.

Page 308 of 492

The video tape marked Exh. "A-1" could not be of any help to Alarilla as its contents were not
even viewed by the COMELEC; 8 neither the photograph of a cover of one of the shoe boxes
with the words "LAWA" and "TEACHERS" (Exh. "C"), nor the photograph of an envelope with
the inscription "VOTE!!! TINOY!!!" (Exh. "D"), which by themselves mean nothing. Suffice it to
say that these pieces of evidence are miserably insufficient to link Blanco to the alleged votebuying. The same is true with the MTB identification card with perforation in the middle
portion with the inscription "Office Copy" on the right half of the card (Exh. "E"); it cannot by
itself be evidence of vote-buying. On its face it is simply an evidence of membership with
the Movement for Tinoy Blanco Volunteers and the "Office Copy" may only be for the files of
the office. Certainly it may be speculated that these identification cards may somehow be used
to carry out a vote-buying scheme. But speculations that they are, it is still difficult to surmise
how they could ensure that the cardholders would surely vote for Blanco.
Even the uniform claim of the nine (9) individuals who filled out computerized print-outs
stating that they received MTB identification cards and envelopes containing P300.00 each
from the henchmen of Blanco and for the "Office Copy" of their respective MTB cards, and that
petitioner Blanco himself promised to give them additional P200.00 in exchange for the other
half of their MTB cards after the elections, if he won as Mayor (Exhs. "E-2" to "E-10"),
deserves scant consideration. These statements are contrary to the allegations in the petition
to disqualify Blanco where it is alleged that MTB cardholders were initially given P500.00 and
promised another P500.00. 9
I cannot disagree with the observations of Commissioner Maambong that the affidavits appear
contrived as they are "1. Form Affidavits (computerized print-outs) in Pilipino, containing the
same wordings, except the blank spaces in paragraph 1 and paragraph 2, filled up with the
same date "April 17" and "May 17", respectively, notarized by the same Notary Public (Donato
G. Mabbayao, Jr.) on the same date (June 4, 1995 [about a month after the elections]). 10
The "handwritten admissions" of alleged flying voters Ponciano Velasquez and Lito Ramirez
stating that they were paid P300.00 each to vote for Blanco (Exhs. "F-3" and "F-4") are
likewise doubtful. Save for the names of the supposed flying voters, the wordings of the two
"handwritten admissions" are exactly the same, including the alleged residence of the said
flying voters, i.e., Bo. Malhacan, Meycauayan, Bulacan. However, both the criminal complaints
and the affidavit of Barangay Captain Romeo Garcia state that Ponciano Velasquez is a native
of Lupacan, Tiaong, Quezon, and a resident of Lolomboy, Bucaue, Bulacan, while Lito Ramirez
is a native of Rosario, Batangas, and a resident of Zamora, Meycauayan, Bulacan. It is thus
apparent that they are not actually residents of Bo. Malhacan, Meycauayan, Bulacan, as stated
in their respective "handwritten admissions." Could it then be that the "handwritten
admissions" were dictated or were actually written by other persons, for how could Ponciano
Velasquez and Lito Ramirez make a mistake with their respective addresses?
For sure, the affidavit of Barangay Captain Romeo C. Garcia stating that he retrieved two (2)
envelopes with P300.00 each from flying voters Ponciano Velasquez and Lito Ramirez and
turned them over to the police (Exh. "F-5") is not an evidence that Blanco engaged in or knew
about and consented to the alleged vote-buying.
Thus even the affidavit of Romeo Burgos executed before Notary Public Donato G. Mabbayao,
Jr., together with all the other affidavits sworn before the same Notary Public, spawns serious

Page 309 of 492

doubt as it was notarized only on 4 June 1995 - almost a month after the petition to disqualify
Blanco was filed.
In fine, I do not find any competent substantial evidence to link Blanco to the alleged votebuying, much less the alleged massive vote-buying. At best respondent Alarilla would indulge
in presumptions which, unfortunately, cannot be sufficient basis to unseat his political rival
who obtained 29,753 votes as against his 23,038 votes. The pieces of evidence presented by
Alarilla, to my mind, are too inadequate to support his stance. It may be true that the
electoral aspect of vote-buying may be determined in an administrative proceeding that is
summary in character and where technical rules of evidence may not be applied rigorously.
Yet, caution should not be thrown to the winds especially here where the two opposing
factions that have been hotly contesting the same post are known to have formidable
followers, for it would not be difficult to manufacture spurious affidavits and even real
evidence. It is imperative to scrutinize carefully the evidence presented by Alarilla to
determine whether they are relevant evidence which a reasonable mind might accept as
adequate to support the conclusion that Blanco indeed bought votes.
The disqualification of Blanco should come from the strength of the evidence of Alarilla, not
from the weakness of the former's defense. Upon scrutiny, I submit that the pieces of
evidence submitted by Alarilla have not met the mandated standard. The evidence presented
in my opinion falls on its own weight as it fails to show that Blanco himself bought votes or
that he was aware of and consented to any vote-buying.
In view of the foregoing. I VOTE TO SET ASIDE AND REVERSE THE RESOLUTION OF
RESPONDENT COMELEC DISQUALIFYING PETITIONER BLANCO AS A CANDIDATE FOR THE
OFFICE OF MAYOR OF MEYCAUAYAN, BULACAN, for having allegedly violated Sec. 261, par.
(a), of BP 881.
It is my view that respondent COMELEC gravely abused its discretion when it based its
findings on unfounded assumptions and unsubstantiated allegations.
BELLOSILLO, J.: concurring and dissenting
I find difficulty in concurring with the majority that the COMELEC order disqualifying Blanco is
based on substantial evidence; therefore I vote to set aside that order. I however join the
majority opinion that, as a result of the disqualification of Blanco, the Labo doctrine 1should
apply.
The law on vacancies and succession of elective local officials is very clear. Section 44 (a),
Chapter 2, R.A. No. 7160, otherwise known as The Local Government Code of 1991, provides
that "[i]f a permanent vacancy occurs in the office of the . . . mayor, the . . . vice mayor
concerned shall become the . . . mayor." Paragraph 2 of the same provision states that "a
permanent vacancy arises when an elective local official . . . fails to qualify . . . . These
provisions are echoed in Art. 83 of the Implementing Rules and Regulations of the Local
Government Code of 1991.
When the language of the law is clear, explicit and unequivocal, it admits no room for
interpretation, but simply application. This is a basic legal precept. In the issue at hand, I find

Page 310 of 492

no necessity to make distinctions as the applicable law is clear. Accordingly, considering that
Blanco has been adjudged by the majority to be disqualified, he comes within the purview of
"fail(ing) to qualify" for the said office. And since a "permanent vacancy" has occurred in the
office of the mayor, Nolasco who is the duly elected vice mayor, and who now occupies the
position of mayor in an acting capacity, should succeed as provided for by law. And this is in
consonance with the pronouncements of this Court in Geronimo v. Ramos2 and Topacio
v. Paredes 3 which were reiterated in Labo v. COMELEC 4 . . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a plurality of the legal votes cast in the election (20
Corpus Juris 2nd, 243, p. 676).
The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle
the candidate who obtained the second highest number of votes to be declared the winner of
the elective office . . . .
The rightful assumption of Nolasco to the office of mayor is however only a consequence of
the disqualification of Blanco to which I dissent. For, I do not agree with the submission that
the COMELEC order disqualifying Blanco is based on substantial evidence. While the dossier of
evidence submitted by Alarilla to show that Blanco committed massive vote-buying may
appear at first blush to be overwhelming, a careful scrutiny of each piece of evidence does not
measure up. I simply find no evidence to link Blanco to the alleged vote-buying. Consequently,
I agree with Commissioner Maambong that Alarilla has failed to substantiate his allegation that
Blanco engaged in or had knowledge of and consented to the buying of votes.
Alarilla relies on several affidavits narrating incidents to prove that Blanco supposedly bought
votes. But aside from the inaccuracies and the doubtful origin of these affidavits, which were
executed only about a month after the petition to disqualify Blanco was filed, using fill-in-theblanks forms, none of the affiants was presented before respondent COMELEC to substantiate
the allegations. 5 At the very least, some affiants should have been presented in the hearings
supposedly conducted.
In his Petition (to disqualify Blanco), Alarilla alleged that "[w]hen the said PNP composite team
examined the ten (10) black plastic bags, they found out that each bag contained then (10)
shoe boxes. Each shoe box when examined contained 200 pay envelopes, and each pay
envelope when opened contained the amount of P1,000.00. When questioned, respondent's
brother (Mariano P. Blanco) and respondent's wife allegedly admitted to the raiding team that
the total amount of money in the ten (10) plastic bags is (was) P10,000,000.00." 6

Page 311 of 492

But Alarilla has miserably failed to substantiate his allegations. He merely presented the sworn
statement of Orlando Mauricio y Labora who claims to have filmed the raid. But the
statements of Mauricio are not even consistent with the allegations of Alarilla in his Petition to
disqualify Blanco. In his Petition, Alarilla claims that each "pay envelope" contained
P1,000.00, 7 while in the affidavit of Mauricio it is stated that there were envelopes which
contained P2,000.00 (Exh. "A-3"). Alarilla should have presented at least one (1) member of
the PNP raiding team who supposedly examined the ten (10) black plastic bags and
questioned Blanco's brother and wife as to the amount of the supposed money. In the absence
of a credible testimony, the alleged admission of the brother and wife of Blanco that "the total
amount of money in the ten (10) plastic bags is P10,000,000.00" becomes quite doubtful. For,
the imputed admission is simply contrary to human nature and experience. If there really was
P10,000,000.00 in the plastic bags, there was no need to divulge the amount to the raiding
team. The Blancos could have just kept quiet and let the raiding team count the money.
The video tape marked Exh. "A-1" could not be of any help to Alarilla as its contents were not
even viewed by the COMELEC; 8 neither the photograph of a cover of one of the shoe boxes
with the words "LAWA" and "TEACHERS" (Exh. "C"), nor the photograph of an envelope with
the inscription "VOTE!!! TINOY!!!" (Exh. "D"), which by themselves mean nothing. Suffice it to
say that these pieces of evidence are miserably insufficient to link Blanco to the alleged votebuying. The same is true with the MTB identification card with perforation in the middle
portion with the inscription "Office Copy" on the right half of the card (Exh. "E"); it cannot by
itself be evidence of vote-buying. On its face it is simply an evidence of membership with
the Movement for Tinoy Blanco Volunteers and the "Office Copy" may only be for the files of
the office. Certainly it may be speculated that these identification cards may somehow be used
to carry out a vote-buying scheme. But speculations that they are, it is still difficult to surmise
how they could ensure that the cardholders would surely vote for Blanco.
Even the uniform claim of the nine (9) individuals who filled out computerized print-outs
stating that they received MTB identification cards and envelopes containing P300.00 each
from the henchmen of Blanco and for the "Office Copy" of their respective MTB cards, and that
petitioner Blanco himself promised to give them additional P200.00 in exchange for the other
half of their MTB cards after the elections, if he won as Mayor (Exhs. "E-2" to "E-10"),
deserves scant consideration. These statements are contrary to the allegations in the petition
to disqualify Blanco where it is alleged that MTB cardholders were initially given P500.00 and
promised another P500.00. 9
I cannot disagree with the observations of Commissioner Maambong that the affidavits appear
contrived as they are "1. Form Affidavits (computerized print-outs) in Pilipino, containing the
same wordings, except the blank spaces in paragraph 1 and paragraph 2, filled up with the
same date "April 17" and "May 17", respectively, notarized by the same Notary Public (Donato
G. Mabbayao, Jr.) on the same date (June 4, 1995 [about a month after the elections]). 10
The "handwritten admissions" of alleged flying voters Ponciano Velasquez and Lito Ramirez
stating that they were paid P300.00 each to vote for Blanco (Exhs. "F-3" and "F-4") are
likewise doubtful. Save for the names of the supposed flying voters, the wordings of the two
"handwritten admissions" are exactly the same, including the alleged residence of the said
flying voters, i.e., Bo. Malhacan, Meycauayan, Bulacan. However, both the criminal complaints
and the affidavit of Barangay Captain Romeo Garcia state that Ponciano Velasquez is a native
of Lupacan, Tiaong, Quezon, and a resident of Lolomboy, Bucaue, Bulacan, while Lito Ramirez
Page 312 of 492

is a native of Rosario, Batangas, and a resident of Zamora, Meycauayan, Bulacan. It is thus

apparent that they are not actually residents of Bo. Malhacan, Meycauayan, Bulacan, as stated
in their respective "handwritten admissions." Could it then be that the "handwritten
admissions" were dictated or were actually written by other persons, for how could Ponciano
Velasquez and Lito Ramirez make a mistake with their respective addresses?
For sure, the affidavit of Barangay Captain Romeo C. Garcia stating that he retrieved two (2)
envelopes with P300.00 each from flying voters Ponciano Velasquez and Lito Ramirez and
turned them over to the police (Exh. "F-5") is not an evidence that Blanco engaged in or knew
about and consented to the alleged vote-buying.
Thus even the affidavit of Romeo Burgos executed before Notary Public Donato G. Mabbayao,
Jr., together with all the other affidavits sworn before the same Notary Public, spawns serious
doubt as it was notarized only on 4 June 1995 - almost a month after the petition to disqualify
Blanco was filed.
In fine, I do not find any competent substantial evidence to link Blanco to the alleged votebuying, much less the alleged massive vote-buying. At best respondent Alarilla would indulge
in presumptions which, unfortunately, cannot be sufficient basis to unseat his political rival
who obtained 29,753 votes as against his 23,038 votes. The pieces of evidence presented by
Alarilla, to my mind, are too inadequate to support his stance. It may be true that the
electoral aspect of vote-buying may be determined in an administrative proceeding that is
summary in character and where technical rules of evidence may not be applied rigorously.
Yet, caution should not be thrown to the winds especially here where the two opposing
factions that have been hotly contesting the same post are known to have formidable
followers, for it would not be difficult to manufacture spurious affidavits and even real
evidence. It is imperative to scrutinize carefully the evidence presented by Alarilla to
determine whether they are relevant evidence which a reasonable mind might accept as
adequate to support the conclusion that Blanco indeed bought votes.
The disqualification of Blanco should come from the strength of the evidence of Alarilla, not
from the weakness of the former's defense. Upon scrutiny, I submit that the pieces of
evidence submitted by Alarilla have not met the mandated standard. The evidence presented
in my opinion falls on its own weight as it fails to show that Blanco himself bought votes or
that he was aware of and consented to any vote-buying.
In view of the foregoing. I VOTE TO SET ASIDE AND REVERSE THE RESOLUTION OF
RESPONDENT COMELEC DISQUALIFYING PETITIONER BLANCO AS A CANDIDATE FOR THE
OFFICE OF MAYOR OF MEYCAUAYAN, BULACAN, for having allegedly violated Sec. 261, par.
(a), of BP 881.
It is my view that respondent COMELEC gravely abused its discretion when it based its
findings on unfounded assumptions and unsubstantiated allegations.
Endnotes:
1 A third candidate, Mauro SC del Rosario received 6,359 votes.

Page 313 of 492

2 Blanco submitted his position paper on June 5, 1995.

3 Composed of Presiding Commissioner Regalado E. Maambong and Commissioners
Graduacion A. Reyes-Claravall and Julio F. Desamito with Commissioner Maambong
dissenting.
4 He filed a Motion to Admit Intervenor's Motion for Reconsideration on August 18, 1995.
5 G.R. No. 122258.
6 G.R. No. 122250.
7 176 SCRA 1.
8 See section 4 of COMELEC Rules of Procedure.
9 Lacson v. COMELEC, G.R. No. L-16261, December 28, 1951.
10 See p. 27 of his August 15, 1995 Concurring and Dissenting Opinion.
11 See pp. 50-53 of August 15, 1995 Resolution.
12 Lozano v. Yorac, 203 SCRA 256.
13 The same plea is made by Blanco in his petition.
14 254 SCRA 514 (1996).
15 Supra.
16 22 SCRA 505.
Bellosillo, J.; concurring and dissenting
1 G.R. No. 86564, 1 August 1989, 179 SCRA 1, 21.
2 G.R. No. 60504, 14, May 1985, 136 SCRA 435.
3 23 Phil. 238 (1912).
4 See Note 1.
5 See Dissenting Opinion of Commissioner Maambong, p. 23; Rollo of G.R. No. 122258, p.
142.
6 Petition (to disqualify Meycauayan, Bulacan, moyaralty candidate Florentino P. Blanco), par.
13, p. 4; Rollo, G.R. No. 122250, p. 26.

Page 314 of 492

7 Ibid.
8 See Concurring and Dissenting Opinion of Commissioner Maambong in the Resolution of 15
August 1995 of the COMELEC, (First Division), p. 3; Rollo, G.R. No. 122258, p. 63.
9 See Note 5.
10 Id., p. 43; Id., p. 103.

EN BANC
[G.R. Nos. L-68379-81. September 22, 1986.]
EVELIO B. JAVIER, Petitioner, v. THE COMMISSION ON ELECTIONS, and ARTURO F.
PACIFICADOR, Respondents.
Raul S. Roco and Lorna Patajo-Kapunan for Petitioner.
SYLLABUS
1. REMEDIAL LAW; DISMISSAL OF ACTION; ISSUES BECAME MOOT AND ACADEMIC; NOT A
CASE OF. The abolition of the Batasang Pambansa and the disappearance of the office in
dispute between the petitioner and the private respondent both of whom have gone their
separate ways could be a convenient justification for dismissing this case. But there are
larger issues involved that must be resolved now, once and for all, not only to dispel the legal
ambiguities here raised. The more important purpose is to manifest in the clearest possible
terms that this Court will not disregard and in effect condone wrong on the simplistic and
tolerant pretext that the case has become moot and academic. The Supreme Court is not only
the highest arbiter of legal questions but also the conscience of the government. The citizen
comes to us in quest of law but we must also give him justice. The two are not always the
same. There are times when we cannot grant the latter because the issue has been settled
and decision is no longer possible according to the law. But there are also times when
although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved.
Justice demands that we act then, not only for the vindication of the outraged right, though
gone, but also for the guidance of and as a restraint upon the future.
2. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; GIVEN FULL AUTHORITY TO HEAR
AND DECIDE CASES FROM BEGINNING TO END AND ALL MATTERS RELATED THERETO. We
believe that in making the Commission on Elections the sole judge of all contests involving the
election, returns and qualifications of the members of the Batasang Pambansa and elective
provincial and city officials, the Constitution intended to give it full authority to hear and
decide these cases from beginning to end and on all matters related thereto, including those
arising before the proclamation of the winners.
3. ID.; ID.; "CONTEST" ; SHOULD NOT BE GIVEN A RESTRICTIVE MEANING. The word

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"contests" should not be given a restrictive meaning; on the contrary, it should receive the
widest possible scope conformably to the rule that the words used in the Constitution should
be interpreted liberally. As employed in the 1973 Constitution, the term should be understood
as referring to any matter involving the title or claims as title to an elective office, made
before or after proclamation of the winner, whether or not the contestant is claiming the office
in dispute. Needless to stress, the term should be given a consistent meaning and understood
in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution.
4. ID.; ID.; PHRASE "ELECTION RETURNS AND QUALIFICATION," DEFINED IN THE SAME
SENSE UNDER SEC. 2(2) AND SEC. 3, ART. XII-C, CONSTITUTION. The phrase "election,
returns and qualifications" should be interpreted in its totality as referring to all matters
affecting the validity of the contestees title. But if it is necessary to specify, we can say that
"election" referred to the conduct of the polls, including the listing of voters, the holding of the
electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the
returns and the proclamation of the winners, including questions concerning the composition
of the board of canvassers and the authenticity of the election returns; and "qualifications" to
matters that could be raised in a quo warranto proceeding against the proclaimed winner,
such as his delivery or ineligibility or the inadequacy of his certificate of candidacy.
5. ID.; ID.; ISSUED ON ELECTION, RETURNS AND QUALIFICATIONS; TO BE HEARD AND
DECIDED ONLY BY SITTING EN BAND INSOFAR AS THEY APPLIED TO MEMBERS OF B.P. All
these came under the exclusive jurisdiction of the Commission on Elections insofar as they
applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section
3, of the 1973 Constitution, could be heard and decided by it only en banc.
6. ID.; ID.; ID.; CASES INVOLVING MEMBERS OF B.P. TO BE HEARD AND DECIDED BY
SITTING EN BANC; PURPOSE. As correctly observed by the petitioner, the purpose of
Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and
decided by the Commission en banc was to insure the most careful consideration of such
cases. Obviously, that objective could not be achieved if the Commission could act en banc
only after the proclamation had been made, for it might then be too late already. We are alltoo-familiar with the grab-the-proclamation-and-delay-the-protest strategy of many
unscrupulous candidates which has resulted in the frustration of the popular will and the
virtual defeat of the real winners in the election. The respondents theory would make this
gambit possible for the pre-proclamation proceedings, being summary in nature, could be
hastily decided by only three members in division, without the cause and deliberation that
would have otherwise been observed by the Commission en banc. After that, the delay. The
Commission en banc might then no longer be able to rectify in time the proclamation
summarily and not very judiciously made by the division. While in the end the protestant
might be sustained, he might find himself with only a Phyrric victory because the term of his
office would have already expired.
7. ID.; BILL OF RIGHTS; DUE PROCESS GUARANTY; VIOLATED IN CASE AT BAR. Another
matter deserving the highest consideration of this Court but accorded cavalier attention by the
respondent Commission on Elections is due process of law, that ancient guaranty of justice
and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked
to inhibit himself on the ground that he was formerly a law partner of the private respondent,
he obstinately insisted on participating in the case, denying he was biased.

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8. ID.; ID.; COLD NEUTRALITY OF AN IMPARTIAL JUDGE; INDISPENSABLE IMPERATIVE OF

DUE PROCESS. This Court has repeatedly and consistently demanded "the cold neutrality of
an impartial judge" as the indispensable imperative of due process. To bolster that
requirement we have held that the judge must not only be impartial but must also appear to
be impartial as an added assurance to the parties that his decision will be just. The litigants
are entitled to no less than that. They should be sure that when their rights are violated they
can go to a judge who shall give them justice. They must trust the judge, otherwise they will
not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his
judgment. Without such confidence, there would be no point in invoking his action for the
justice they expect.
9. ID.; ID.; DUE PROCESS; INTENDED TO INSURE COMPLIANCE WITH RUDIMENTS OF FAIR
PLAY. Due process is intended to insure that confidence by requiring compliance with what
Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There
cannot be equal justice where a suitor approaches a court already committed to the other
party and with a judgment already made and waiting only to be formalized after the litigants
shall have undergone the charade of a formal hearing. Judicial (and also extra-judicial
proceedings are not orchestrated plays in which the parties are supposed to make the motions
and reach the denouement according to a prepared script. There is no writer to foreordain the
ending. The judge will reach his conclusions only after all the evidence is in and all the
arguments are filed, on the basis of the established facts and the pertinent law.
10. ID.; ID.; ID.; DEMANDS THAT THE JUDGE INHIBIT HIMSELF OUT OF A SENSE OF
DELICADEZA. The relationship of the judge with one of the parties may color the facts and
distort the law to the prejudice of a just decision. Where this is probable or even only possible,
due possible, due process demands that the judge inhibit himself, if only out of a sense of
delicadeza. For like Caesars wife, he must be above suspicion. Commissioner Opinion, being a
lawyer, should have recognized his duty and abided by this well-known rule of judicial
conduct. For refusing to do so, he divested the Second Division of the necessary vote for the
questioned decision, assuming it could act, and rendered the proceedings null and void.
FELICIANO, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; MUST DECIDE ALL ELECTION
CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA SITTING EN BANC.
Although this petition has become moot and academic, the decision, dated 23 July 1984, of
the Second Division of the Commission on Elections which had proclaimed Arturo F. Pacificador
as the duly elected Assemblyman of the province of Antique must be set aside or, more
accurately, must be disregarded as bereft of any effect in law. J. Feliciano reaches this result
on the same single, precisely drawn, ground relied upon by Melencio-Herrera, J., that all
election contests involving members of the former Batasan Pambansa must be decided by the
Commission on Elections en banc under Sections 2 and 3 of Article XII-C of the 1973
Constitution. These Sections do not distinguish between "pre-proclamation" and "postproclamation" contests nor between "cases" and "contests."cralaw virtua1aw library
MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; HAS JURISDICTION OVER
CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA. I concur in the result. The

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questioned Decision of the Second Division of the COMELEC, dated July 23, 1984, proclaiming
private respondent, Arturo F. Pacificador, as the duly elected Assemblyman of the province of
Antique, should be set aside for the legal reason that all election contests, without distinction
as to cases or contests, involving members of the defunct Batasang Pambansa fall under the
jurisdiction of the COMELEC en banc pursuant to Sections 2 and 3 of Article XII-C of the 1973
Constitution.

DECISION
CRUZ, J.:
The new Solicitor General has moved to dismiss this petition on the ground that as a result of
supervening events it has become moot and academic. It is not as simple as that, Several
lives have been lost in connection with this case, including that of the petitioner himself. The
private respondent is now in hiding. The purity of suffrage has been defiled and the popular
will scorned through a confabulation of those in authority. This Court cannot keep silent in the
face of these terrible facts. The motion is denied.
The petitioner and the private respondent were candidates in Antique for the Batasang
Pambansa in the May 1984 elections. The former appeared to enjoy more popular support but
the latter had the advantage of being the nominee of the KBL with all its perquisites of power.
On May 13, 1984, the eve of the elections, the bitter contest between the two came to a head
when several followers of the petitioner were ambushed and killed, allegedly by the latters
men. Seven suspects, including respondent Pacificador, are now facing trial for these murders.
The incident naturally heightened tension in the province and sharpened the climate of fear
among the electorate. Conceivably, it intimidated voters against supporting the Opposition
candidate or into supporting the candidate of the ruling party.
It was in this atmosphere that the voting was held, and the post-election developments were
to run true to form. Owing to what he claimed were attempts to railroad the private
respondents proclamation, the petitioner went to the Commission on Elections to question the
canvass of the election returns. His complaints were dismissed and the private respondent was
proclaimed winner by the Second Division of the said body. The petitioner thereupon came to
this Court, arguing that the proclamation was void because made only by a division and not by
the Commission on Elections en banc as required by the Constitution. Meanwhile, on the
strength of his proclamation, the private respondent took his oath as a member of the
Batasang Pambansa.
The case was still being considered by this Court when on February 11, 1986, the petitioner
was gunned down in cold blood and in broad daylight. The nation, already indignant over the
obvious manipulation of the presidential elections in favor of Marcos, was revolted by the
killing, which flaunted a scornful disregard for the law by the assailants who apparently
believed they were above the law. This ruthless murder was possibly one of the factors that

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strengthened the cause of the Opposition in the February revolution that toppled the Marcos
regime and installed the present government under President Corazon C. Aquino.
The abolition of the Batasang Pambansa and the disappearance of the office in dispute
between the petitioner and the private respondent both of whom have gone their separate
ways could be a convenient justification for dismissing this case. But there are larger issues
involved that must be resolved now, once and for all, not only to dispel the legal ambiguities
here raised. The more important purpose is to manifest in the clearest possible terms that this
Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that
the case has become moot and academic.
The Supreme Court is not only the highest arbiter of legal questions but also the conscience of
the government. The citizen comes to us in quest of law but we must also give him justice.
The two are not always the same. There are times when we cannot grant the latter because
the issue has been settled and decision is no longer possible according to the law. But there
are also times when although the dispute has disappeared, as in this case, it nevertheless
cries out to be resolved. Justice demands that we act then, not only for the vindication of the
outraged right, though gone, but also for the guidance of and as a restraint upon the future.
It is a notorious fact decried by many people and even by the foreign press that elections
during the period of the Marcos dictatorship were in the main a desecration of the right of
suffrage. Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and
other elections anomalies misrepresented and vitiated the popular will and led to the induction
in office of persons who did not enjoy the confidence of the sovereign electorate. Genuine
elections were a rarity. The price at times was human lives. The rule was chicanery and
irregularity, and on all levels of the polls, from the barangay to the presidential. This included
the rigged plebiscites and referenda that also elicited the decision and provoked the
resentments of the people.
Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections
in other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by
the killings previously mentioned, which victimized no less than one of the main protagonists
and implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of
their lives even as their supporters were gripped with fear of violence at the hands of the
party in power.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
What made the situation especially deplorable was the apparently indifferent attitude of the
Commission on Elections toward the anomalies being committed. It is a matter of record that
the petitioner complained against the terroristic acts of his opponents. All the electoral body
did was refer the matter to the Armed Forces without taking a more active step as befitted its
constitutional role as the guardian of free, orderly and honest elections. A more assertive
stance could have averted the Sibalom election eve massacre and saved the lives of the nine
victims of the tragedy.
Public confidence in the Commission on Elections was practically nil because of its transparent
bias in favor of the administration. This prejudice left many opposition candidates without
recourse except only to this Court.
Alleging serious anomalies in the conduct of the elections and the canvass of the election

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returns, the petitioner went to the Commission on Elections to prevent the impending
proclamation of his rival, the private respondent herein. 1 Specifically, the petitioner charged
that the elections were marred by "massive terrorism, intimidation, duress, vote-buying,
fraud, tampering and falsification of election returns under duress, threat and intimidation,
snatching of ballot boxes perpetrated by the armed men of respondent Pacificador." 2
Particular mention was made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Lauaan, and also of San Remigio, where the petitioner claimed the election returns were not placed
in the ballot boxes but merely wrapped in cement bags or manila paper.
On May 18, 1984, the Second Division of the Commission on Elections directed the provincial
board of canvassers of Antique to proceed with the canvass but to suspend the proclamation
of the winning candidate until further orders. 3 On June 7, 1984, the same Second Division
ordered the board to immediately convene and to proclaim the winner without prejudice to the
outcome of the case before the Commission. 4 On certiorari before this Court, the
proclamation made by the board of canvassers was set aside as premature, having been made
before the lapse of the 5-day period of appeal, which the petitioner had seasonably made. 5
Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this
petition which inter alia proclaimed Arturo F. Pacificador the elected assemblyman of the
province of Antique. 6
This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion
and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that he was a
former law partner of private respondent Pacificador, Opinion had refused. 7
The petitioner then came to this Court, asking us to annul the said decision.
The core question in this case is one of jurisdiction, to wit: Was the Second Division of the
Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming
the private respondent the winner in the election?chanrobles.com:cralaw:red
The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973
Constitution.
Section 2 confers on the Commission on Elections the power to:jgc:chanrobles.com.ph
"(2) Be the sole judge of all contests relating to the election, returns and qualifications of all
member of the Batasang Pambansa and elective provincial and city officials."cralaw virtua1aw
library
Section 3 provides:jgc:chanrobles.com.ph
"The Commission on Elections may sit en banc or in three divisions. All election cases may be
heard and decided by divisions except contests involving members of the Batasang Pambansa,
which shall be heard and decided en banc. Unless otherwise provided by law, all election cases
shall be decided within ninety days from the date of their submission for decision."cralaw
virtua1aw library
While both invoking the above provisions, the petitioner and the respondents have arrived at
opposite conclusions. The records are voluminous and some of the pleadings are exhaustive

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and in part even erudite. And well they might be, for the noble profession of the law despite
all the canards that have been flung against it exerts all efforts and considers all possible
viewpoints in its earnest search of the truth.
The petitioner complains that the proclamation made by the Second Division is invalid because
all contests involving the members of the Batasang Pambansa come under the jurisdiction of
the Commission on Elections en banc. This is as it should be, he says, to insure a more careful
decision, considering the importance of the offices involved. The respondents, for their part,
argue that only contests need to be heard and decided en banc and all other cases can be
in fact, should be filed with and decided only by any of the three divisions.
The former Solicitor General makes much of this argument and lays a plausible distinction
between the terms "contests" and "cases" to prove his point. 8 Simply put, his contention is
that the pre-proclamation controversy between the petitioner and the private respondent was
not yet a contest at that time and therefore could be validly heard by a mere division of the
Commission on Elections, consonant with Section 3. The issue was at this stage still
administrative and so was resoluble by the Commission under its power to administer all laws
relative to the conduct of elections, 9 not its authority as sole judge of the election contest.
A contest, according to him, should involve a contention between the parties for the same
office "in which the contestant seeks not only to oust the intruder but also to have himself
inducted into the office." 10 No proclamation had as yet been made when the petition was
filed and later decided. Hence, since neither the petitioner nor the private respondent had at
that time assumed office, there was no Member of the Batasang Pambansa from Antique
whose election, returns or qualifications could be examined by the Commission on Elections en
banc.
In providing that the Commission on Elections could act in division when deciding election
cases, according to this theory, the Constitution was laying down the general rule. The
exception was the election contest involving the members of the Batasang Pambansa, which
had to be heard and decided en banc. 11 The en banc requirement would apply only from the
time a candidate for the Batasang Pambansa was proclaimed as winner, for it was only then
that a contest could be permitted under the law. All matters arising before such time were,
necessarily, subject to decision only by division of the Commission as these would come under
the general heading of "election cases."cralaw virtua1aw library
As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the
Commission on Elections into two, viz.: (1) over matters arising before the proclamation,
which should be heard and decided by division in the exercise of its administrative power; and
(2) over matters arising after the proclamation, which could be heard and decided only en
banc in the exercise of its judicial power. Stated otherwise, the Commission as a whole could
not act as sole judge as long as one of its divisions was hearing a pre-proclamation matter
affecting the candidates for the Batasang Pambansa because there was as yet no contest; or
to put it still another way, the Commission en banc could not do what one of its divisions was
competent to do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the
Commission on Elections could hear and decide, save only those involving the election, returns
and qualifications of the members of the Batasang Pambansa, all cases involving elective
provincial and city officials from start to finish, including pre-proclamation controversies and
up to the election protest, In doing so, it would exercise first administrative and then judicial

Page 321 of 492

powers. But in the case of the Commission en banc, its jurisdiction would begin only after the
proclamation was made and a contest was filed and not at any time and on any matter before
that, and always in the exercise only of judicial power.
This interpretation would give to the part more powers than were enjoyed by the whole,
granting to the division while denying to the banc. We do not think this was the intention of
the Constitution. The framers could not have intended such an irrational rule.
We believe that in making the Commission on Elections the sole judge of all contests involving
the election, returns and qualifications of the members of the Batasang Pambansa and elective
provincial and city officials, the Constitution intended to give it full authority to hear and
decide these cases from beginning to end and on all matters related thereto, including those
arising before the proclamation of the winners.chanrobles virtual lawlibrary
It is worth observing that the special procedure for the settlement of what are now called
"pre-proclamation controversies" is a relatively recent innovation in our laws, having been
introduced only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code.
Section 175 thereof provided:jgc:chanrobles.com.ph
"Sec. 175. Suspension and annulment of proclamation. The Commission shall be the sole
judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be
final and executory. It may, motu proprio or upon written petition, and after due notice and
hearing order the suspension of the proclamation of a candidate-elect or annul any
proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173
and 174 thereof."cralaw virtua1aw library
Before that time all proceedings affecting the election, returns and qualifications of public
officers came under the complete jurisdiction of the competent court or tribunal from
beginning to end and in the exercise of judicial power only. It therefore could not have been
the intention of the framers in 1935, when the Commonwealth Charter was adopted, and even
in 1973, when the past Constitution was imposed, to divide the electoral process into the preproclamation stage and the post-proclamation stage and to provide for a separate jurisdiction
for each stage, considering the first administrative and the second judicial.
Besides, the term "contest" as it was understood at the time Article XII-C, Section 2(2) was
incorporated in the 1973 Constitution did not follow the strict definition of a contention
between the parties for the same office. Under the Election Code of 1971, which presumably
was taken into consideration when the 1973 Constitution was being drafted, election contests
included the quo warranto petition that could be filed by any voter on the ground of disloyalty
or ineligibility of the contestee although such voter was himself not claiming the office
involved. 12
The word "contests" should not be given a restrictive meaning; on the contrary, it should
receive the widest possible scope conformably to the rule that the words used in the
Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term
should be understood as referring to any matter involving the title or claim of title to an
elective office, made before or after proclamation of the winner, whether or not the contestant
is claiming the office in dispute. Needless to stress, the term should be given a consistent
meaning and understood in the same sense under both Section 2(2) and Section 3 of Article

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XII-C of the Constitution.

The phrase "election, returns and qualifications" should be interpreted in its totality as
referring to all matters affecting the validity of the contestees title. But if it is necessary to
specify, we can say that "election" referred to the conduct of the polls, including the listing of
voters, the holding of the electoral campaign, and the casting and counting of the votes;
"returns" to the canvass of the returns and the proclamation of the winners, including
questions concerning the composition of the board of canvassers and the authenticity of the
election returns; and "qualifications" to matters that could be raised in a quo warranto
proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the
inadequacy of his certificate of candidacy.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
All these came under the exclusive jurisdiction of the Commission on Elections insofar as they
applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section
3, of the 1973 Constitution, could be heard and decided by it only en banc.
We interpret "cases" as the generic term denoting the actions that might be heard and decided
by the Commission on Elections, only by division as a general rule except where the case was
a "contest" involving members of the Batasang Pambansa, which had to be heard and decided
en banc.
As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases
involving members of the Batasang Pambansa be heard and decided by the Commission en
banc was to insure the most careful consideration of such cases. Obviously, that objective
could not be achieved if the Commission could act en banc only after the proclamation had
been made, for it might then be too late already. We are all-too-familiar with the grab-theproclamation-and-delay-the-protest strategy of many unscrupulous candidates which has
resulted in the frustration of the popular will and the virtual defeat of the real winners in the
election. The respondents theory would make this gambit possible for the pre-proclamation
proceedings, being summary in nature, could be hastily decided by only three members in
division, without the care and deliberation that would have otherwise been observed by the
Commission en banc.
After that, the delay. The Commission en banc might then no longer be able to rectify in time
the proclamation summarily and not very judiciously made by the division. While in the end
the protestant might be sustained, he might find himself with only a Phyrric victory because
the term of his office would have already expired.
It may be argued that in conferring the initial power to decide the pre-proclamation question
upon the division, the Constitution did not intend to prevent the Commission en banc from
exercising the power directly, on the theory that the greater power embraces the lesser. It
could if it wanted to but then it could also allow the division to act for it. That argument would
militate against the purpose of the provision, which precisely limited all questions affecting the
election contest, as distinguished from election cases in general, to the jurisdiction of the
Commission en banc as sole judge thereof. "Sole judge" excluded not only all other tribunals
but also and even the division of the Commission. A decision made on the contest by less than
the Commission en banc would not meet the exacting standard of care and deliberation
ordained by the Constitution.

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Incidentally, in making the Commission the "sole judge" of pre-proclamation controversies in

Section 175, supra, the law was obviously referring to the body sitting en banc. In fact, the
pre-proclamation controversies involved in Aratuc v. Commission on Elections, 13 where the
said provision was applied, were heard and decided en banc.
Another matter deserving the highest consideration of this Court but accorded cavalier
attention by the respondent Commission on Elections is due process of law, that ancient
guaranty of justice and fair play which is the hallmark of the free society. Commissioner
Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner
of the private respondent, he obstinately insisted on participating in the case, denying he was
biased. 14
Given the general attitude of the Commission on Elections toward the party in power at the
time, and the particular relationship between Commissioner Opinion and MP Pacificador, one
could not be at least apprehensive, if not certain, that the decision of the body would be
adverse to the petitioner. As in fact it was. Commissioner Opinions refusal to inhibit himself
and his objection to the transfer of the case to another division cannot be justified by any
criterion of propriety. His conduct on this matter belied his wounded protestations of
innocence and proved the motives of the Second Division when it rendered its
decision.chanroblesvirtualawlibrary
This Court has repeatedly and consistently demanded "the cold neutrality of an impartial
judge" as the indispensable imperative of due process. 15 To bolster that requirement, we
have held that the judge must not only be impartial but must also appear to be impartial as an
added assurance to the parties that his decision will be just. 16 The litigants are entitled to no
less than that. They should be sure that when their rights are violated they can go to a judge
who shall give them justice. They must trust the judge, otherwise they will not go to him at
all. They must believe in his sense of fairness, otherwise they will not seek his judgment.
Without such confidence, there would be no point in invoking his action for the justice they
expect.
Due process is intended to insure that confidence by requiring compliance with what Justice
Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be
equal justice where a suitor approaches a court already committed to the other party and with
a judgment already made and waiting only to be formalized after the litigants shall have
undergone the charade of a formal hearing. Judicial (and also extrajudicial) proceedings are
not orchestrated plays in which the parties are supposed to make the motions and reach the
denouement according to a prepared script. There is no writer to foreordain the ending. The
judge will reach his conclusions only after all the evidence is in and all the arguments are filed,
on the basis of the established facts and the pertinent law.
The relationship of the judge with one of the parties may color the facts and distort the law to
the prejudice of a just decision. Where this is probable or even only possible, due process
demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesars
wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have
recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do
so, he divested the Second Division of the necessary vote for the questioned decision,
assuming it could act, and rendered the proceeding null and void. 17

Page 324 of 492

Since this case began in 1984, many significant developments have taken place, not the least
significant of which was the February revolution of "people power" that dislodged the past
regime and ended well nigh twenty years of travail for this captive nation. The petitioner is
gone, felled by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet
to be disclosed. The private respondent has disappeared with the "pomp of power" he had
before enjoyed. Even the Batasang Pambansa itself has been abolished, "an iniquitous vestige
of the previous regime" discontinued by the Freedom Constitution. It is so easy now, as has
been suggested not without reason, to send the records of this case to the archives and say
the case is finished and the book is closed.
But not yet.
Let us first say these meager words in tribute to a fallen hero who was struck down in the
vigor of his youth because he dared to speak against tyranny. Where many kept a meekly
silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even
reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt
him. Power did not awe him. His was a singular and allexacting obsession: the return of
freedom to his country. And though he fought not in the barricades of war amid the sound and
smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his
people against the enemies of his race, unfortunately of his race too, who would impose upon
the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad
to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was,
like Saul and Jonathan, "swifter than eagles and stronger than lions."cralaw virtua1aw library
A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto
Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and
Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve
ambush in Antique last year." She pleaded, as so did hundreds of others of her provincemates
in separate signed petitions sent us, for the early resolution of that horrible crime, saying "I
am 82 years old now. I am sick. May I convey to you my prayer in church and my plea to you,
Before I die, I would like to see justice to my son and grandsons, May I also add that the
people of Antique have not stopped praying that the true winner of the last elections will be
decided upon by the Supreme Court soon." chanrobles law library : red
That was a year ago and since then a new government has taken over in the wake of the
February revolution. The despot has escaped, and with him, let us pray, all the oppressions
and repressions of the past have also been banished forever. A new spirit is now upon our
land. A new vision limns the horizon. Now we can look forward with new hope that under the
Constitution of the future every Filipino shall be truly sovereign in his own country, able to
express his will through the pristine ballow with only his conscience as his counsel.
This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if
we are able at last, after our long ordeal, to say never again to tyranny. If we can do this with
courage and conviction, then and only then, and not until then, can we truly say that the case
is finished and the book is closed.
WHEREFORE, let it be spread in the records of this case that were it not for the supervening
events that have legally rendered it moot and academic, this petition would have been granted

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and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of
the Constitution.
SO ORDERED.
Feria, Yap, Narvasa, Alampay and Paras, JJ., concur.
Teehankee, C.J., I concur and reserve the filing of a separate concurrence.
Fernan and Gutierrez, Jr., JJ., concur in the result.
Separate Opinions
MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library
I concur in the result. The questioned Decision of the Second Division of the COMELEC, dated
July 23, 1984, proclaiming private respondent, Arturo F. Pacificador, as the duly elected
Assemblyman of the province of Antique, should be set aside for the legal reason that all
election contests, without any distinction as to cases or contests, involving members of the
defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en banc pursuant to
Sections 2 and 3 of Article XII-C of the 1973 Constitution.
FELICIANO, J., concurring:chanrob1es virtual 1aw library
I agree with the result reached, that is, although this petition has become moot and academic,
the decision, dated 23 July 1984, of the Second Division of the Commission on Elections which
had proclaimed Arturo F. Pacificador as the duly elected Assemblyman of the Province of
Antique must be set aside or, more accurately, must be disregarded as bereft of any effect in
law. I reach this result on the same single, precisely drawn, ground relied upon by MelencioHerrera, J.: that all election contests involving members of the former Batasan Pambansa
must be decided by the Commission on Elections en banc under Sections 2 and 3 of Article
XII-C of the 1973 Constitution. These Sections do not distinguish between "pre-proclamation"
and "post-proclamation" contests nor between "cases" and "contests."cralaw virtua1aw library
Endnotes:

1. Rollo, p. 26.
2. Rollo, p. 26.
3. Ibid., p. 9; p. 28.
4. Id., p. 30.
5. Id., p. 30.

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6. Id., p. 62.
7. Id., p. 62; pp. 107-111.
8. Id., pp. 11-16; pp. 196-208.
9. Art. XII-C, Sec. 2(1), 1973 Constitution.
10. Vera v. Avelino, 77 Phil. 191.
11. Art. XII-C, Sec. 3, 1973 Constitution.
12. Election Code of 1971, Sec. 219.
13. 88 SCRA 251.
14. Rollo, pp. 109-111.
15. Mateo v. Villaluz, 50 SCRA 18; Gutierrez v. Santos, 2 SCRA 249.
16. People v. Opida, G.R. No. L-46272, July 13, 1986, citing Fernandez v. Presbitero, 79 SCRA
61; Sardinia-Linco v. Pineda, 104 SCRA 757.
17. Comelec Res. No. 1669, Sec. 5.

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EN BANC
[G.R. No. 120265. September 18, 1995.]
AGAPITO A. AQUINO, Petitioner, v. COMMISSION ON ELECTIONS, MOVE MAKATI,
MATEO BEDON and JUANITO ICARO, Respondents.
Haydee B. Yorac, R.A.V. Saguisag and Clarence D. Guerrero for Petitioner.
Felix D. Carao, Jr., collaborating counsel for Petitioner.
Pete Quirino Quadra for private respondents Move Makati and Mateo B. Bedon.
SYLLABUS
1. ELECTION LAW; COMMISSION ON ELECTIONS; JURISDICTION OVER QUALIFICATION
CASES OF CANDIDATES FOR MEMBERS OF HOUSE OF REPRESENTATIVES; CONTINUES EVEN
AFTER THE ELECTION. Petitioner vigorously contends that after the May 8, 1995 elections,
the COMELEC lost its jurisdiction over the question of petitioners qualifications to run for
member of the House of Representatives. He claims that jurisdiction over the petition for
disqualification is exclusively lodged with the House of Representatives Electoral Tribunal
(HRET). Given the yet unresolved question of jurisdiction, petitioner avers that the
COMELEC committed serious error and grave abuse of discretion in directing the suspension of
his proclamation as the winning candidate in the Second Congressional District of Makati City.
We disagree. Petitioner conveniently confuses the distinction between an unproclaimed
candidate to the House of Representatives and a member of the same. Obtaining the highest
number of votes in an election does not automatically vest the position in the winning
candidate. Under Section 17 of Article VI of the 1987 Constitution, the Senate and the House
of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns and qualifications of their respective Members. The electoral
tribunal clearly assumes jurisdiction over all contests relative to the election, returns and
qualifications of candidates for either the Senate or the House only when the latter become
members of either the Senate or the House of Representatives. A candidate who has not been
proclaimed and who has not taken his oath of office cannot be said to be a member of the
House of Representatives subject to Section 17 of Article VI of the Constitution. While the
proclamation of a winning candidate in an election is ministerial, B.P. 881 in conjunction with
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Sec. 6 of RA. 6646 allows suspension of proclamation under circumstances mentioned therein.
Thus, petitioners contention that "after the conduct of the election and (petitioner) has been
established the winner of the electoral exercise from the moment of election, the COMELEC is
automatically divested of authority to pass upon the question of qualification" finds no basis in
law, because even after the elections the COMELEC is empowered by Section 6 (in relation to
Section 7) of R.A. 6646 to continue to hear and decide questions relating to qualifications of
candidates.
2. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; HOUSE OF REPRESENTATIVES;
QUALIFICATION OF CANDIDATES FOR MEMBERS; RESIDENCY REQUIREMENT; CANDIDATE
MUST PROVE THAT HE HAS ESTABLISHED NOT JUST RESIDENCE BUT DOMICILE OF CHOICE.
Clearly, the place "where a party actually or constructively has his permanent home,"
where he, no matter where he may be found at any given time, eventually intends to return
and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of
residence for the purposes of election law. The manifest purpose of this deviation from the
usual conceptions of residency in law as explained in Gallego v. Vera, (73 Phil. 453 [1941]) is
"to exclude strangers or newcomers unfamiliar with the conditions and needs of the
community" from taking advantage of favorable circumstances existing in that community for
electoral gain. While there is nothing wrong with the practice of establishing residence in a
given area for meeting election law requirements, this nonetheless defeats the essence of
representation, which is to place through the assent of voters those most cognizant and
sensitive to the needs of a particular district, if a candidate falls short of the period of
residency mandated by law for him to qualify. That purpose could be obviously best met by
individuals who have either had actual residence in the area for a given period or who have
been domiciled in the same area either by origin or by choice. It would, therefore, be
imperative for this Court to inquire into the threshold question as to whether or not petitioner
actually was a resident for a period of one year in the area now encompassed by the Second
Legislative District of Makati at the time of his election or whether or not he was domiciled in
the same.
3. ID.; ID.; ID.; ID.; ID.; RESIDENCE SYNONYMOUS WITH DOMICILE FOR ELECTION
PURPOSES. We agree with COMELECs contention that in order that petitioner could qualify
as a candidate for Representative of the Second District of Makati City the latter "must prove
that he has established not just residence but domicile of choice." The Constitution requires
that a person seeking election to the House of Representatives should be a resident of the
district in which he seeks election for a period of not less than one (1) year prior to the
elections. Residence, for election law purposes, has a settled meaning in our jurisdiction. In Co
v. Electoral Tribunal of the House of Representatives (199 SCRA 692 [1991]) this Court held
that the term "residence" has always been understood as synonymous with "domicile" not only
under the previous Constitutions but also under the 1987 Constitution.
4. ID.; ID.; ID.; ID.; ID.; CLEAR AND POSITIVE PROOF SHOWING A SUCCESSFUL
ABANDONMENT OF DOMICILE MUST BE ESTABLISHED; CASE AT BAR. While property
ownership is not and should never be an indicia of the right to vote or to be voted upon, the
fact that petitioner himself claims that he has other residences in Metro Manila coupled with
the short length of time he claims to be a resident of the condominium unit in Makati (and the
fact, of his stated domicile in Tarlac) "indicate that the sole purpose of (petitioner) in
transferring his physical residence" is not to acquire a new residence or domicile "but only to
qualify as a candidate for Representative of the Second District of Makati City." The absence of

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clear and positive proof showing a successful abandonment of domicile under the conditions
stated above, the lack of identification sentimental, actual or otherwise with the area,
and the suspicious circumstances under which the lease agreement was effected all belie
petitioners claim of residency for the period required by the Constitution, in the Second
District of Makati. As the COMELEC en banc emphatically pointed out: [T]he lease agreement
was executed mainly to support the one year residence requirement as a qualification for a
candidate of Representative, by establishing a commencement date of his residence. If a
perfectly valid lease agreement cannot, by itself establish a domicile of choice, this particular
lease agreement cannot do better. Moreover, his assertion that he has transferred his domicile
from Tarlac to Makati is a bare assertion which is hardly supported by the facts in the case at
bench. Domicile of origin is not easily lost. To successfully effect a change of domicile,
petitioner must prove an actual removal or an actual change of domicile; a bona fide intention
of abandoning the former place of residence and establishing a new one and definite acts
which correspond with the purpose. These requirements are hardly met by the evidence
adduced in support of petitioners claims of a change of domicile from Tarlac to the Second
District of Makati. In the absence of clear and positive proof, the domicile of origin should be
deemed to continue.
5. ID.; ELECTORAL REFORM LAW OF 1987 (R.A. 6646); EFFECT OF DISQUALIFICATION;
OBTAINING THE HIGHEST NUMBER OF VOTES WILL NOT RESULT IN THE SUSPENSION OR
TERMINATION OF THE PROCEEDINGS WHEN THE EVIDENCE OF GUILT IS STRONG. Under
Section 6 of R.A. 6646, not only is a disqualification case against a candidate allowed to
continue after the election (and does not oust the COMELEC of its jurisdiction), but his
obtaining the highest number of votes will not result in the suspension or termination of the
proceedings against him when the evidence of guilt is strong. While the phrase "when the
evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be
applicable only to disqualification cases under Section 68 of the Omnibus Election Code,
Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to cases involving
disqualification based on ineligibility under Section 78 of B.P. 881.
6. ID.; INELIGIBILITY OF CANDIDATE; DOES NOT ENTITLE THE ELIGIBLE CANDIDATE
RECEIVING THE NEXT HIGHEST NUMBER OF VOTES TO BE DECLARED ELECTED. In the
more recent cases of Labo, Jr. v. Comelec (176 SCRA 1 [1989]). Abella v. Comelec (201 SCRA
253 [1991]); and Benito v. Comelec, (235 SCRA 436 [1994]), this Court reiterated and upheld
the ruling in Topacio v. Paredes, and Geronimo v. Ramos to the effect that the ineligibility of a
candidate receiving the majority votes does not entitle the eligible candidate receiving the
next higher number of votes to be declared elected, and that a minority or defeated candidate
cannot be declared elected to the office. In these cases, we put emphasis on our
pronouncement in Geronimo v. Ramos that: The fact that a candidate who obtained the
highest number of votes is later declared to be disqualified or not eligible for the office to
which he was elected does not necessarily entitle the candidate who obtained the second
highest number of votes to be declared the winner of the elective office. The votes cast for a
dead, disqualified, or non-eligible person may be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a contrary
political and legislative policy on the matter, if the votes were cast in sincere belief that that
candidate was alive, qualified, or eligible; they should not be treated as stray, void or
meaningless.
PADILLA, J., separate concurring opinion:chanrob1es virtual 1aw library

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1. ELECTION LAW; QUALIFICATION OF CANDIDATES; RESIDENCY REQUIREMENT;

CANDIDATE MUST PROVE THAT HE HAD ACTUALLY AND PHYSICALLY RESIDED IN THE PLACE
TO BE VOTED UPON. In G.R. No. 119976, Marcos v. Comelec, J. Padilla have maintained
that the phrase "a resident thereof for a period of not less than one year" means actual and
physical presence in the legislative district of the congressional candidate, and that said period
of one year must be satisfied regardless of whether or not a persons residence or domicile
coincides. To my mind, petitioner should be declared disqualified to run as representative in
the 2nd district of Makati City in the 8 May 1995 elections not because he failed to prove his
residence therein as his domicile of choice, but because he failed altogether to prove that he
had actually and physically resided therein for a period of not less than one (1) year
immediately preceding the 8 May 1995 elections. Petitioner evidently wants to impress the
Court that his other residences in Metro Manila could never have become his domicile of choice
because it never entered his mind and suddenly, seemingly not contented with these
residences, he rents a condominium unit in Makati, and calls it his domicile of choice all
these without adding clear and convincing evidence that he did actually live and reside in
Makati for at least one year prior to 8 May 1995 and that he no longer lived and resided in
his other residences during said one year period. It follows, likewise, that the lease contract
relied upon by petitioner, standing alone, established only the alleged date (April 25, 1994) of
its due execution. Stated otherwise, the lease contract tells us that petitioner had been leasing
a condominium unit in Makati City for more than a year prior to 8 May 1995, but it does not
prove that petitioner actually and physically resided therein for the same period, in the light of
his admission that he maintained other residences in Metro Manila.
2. ID.; DISQUALIFICATION OF CANDIDATES; VOTES CAST IN FAVOR OF SAID CANDIDATE
SHALL NOT BE COUNTED. J. Padilla agrees with the proposition advanced by the Solicitor
General that Sec. 6 of R.A. 6646 clearly provides that votes cast for a disqualified candidate
shall not be counted. There can be no dispute that if a final judgment is rendered before the
election, declaring a particular candidate as disqualified, such disqualified candidate shall not
be voted for and votes cast for him shall not be counted, thus posing no problem in
proclaiming the candidate who receives the highest number of votes among the qualified
candidates. But what about after the election? Sec. 6 appears categorical enough in stating: "if
for any reason" no final judgment of disqualification is rendered before the elections, and the
candidate facing disqualification is voted for and receives the winning number of votes, the
Comelec or the Court is not ousted of its jurisdiction to hear and try the case up to final
judgment, hence, the power to even suspend the proclamation of the erstwhile winning
candidate when evidence of guilt is strong. It thus appear clear that the law does not
dichotomize the effect of a final judgment of disqualification in terms of time considerations.
There is only one natural and logical effect: the disqualified candidate shall not be voted and,
if voted, the votes case for him shall not be counted. Ubi lex non ditinguit nec nos distinguere
debemus (where the law does not distinguish, we should not distinguish.)
3. ID.; ID.; ID.; CANDIDATE WHO RECEIVED THE HIGHEST NUMBER OF VOTES SHOULD BE
PROCLAIMED. At this point, what J. Padilla said in Marcos, supra, follows: "What happens
then when after the elections are over, one is declared disqualified? Then, votes cast for him
"shall not be counted" and in legal contemplation, he no longer received the highest number of
votes. It stands to reason that Section 6 of RA 6646 does not make the second placer the
winner simply because a "winning candidates is disqualified," but that the law considers him as
the candidate who had obtained the highest number of votes as a result of the votes cast for

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the disqualified candidate not being counted or considered. As this law clearly reflects the
legislative policy on the matter, then there is no reason why this Court should not re-examine
and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the
qualifications prescribed for elective office cannot be erased by the electorate alone. The will of
the people as expressed through the ballot cannot cure the vice of ineligibility" most especially
when it is mandated by no less than the Constitution." Therefore the candidate who received
the highest number of votes from among the qualified candidates, should be proclaimed.
FRANCISCO, J., concurring and dissenting opinion:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; HOUSE OF REPRESENTATIVE
ELECTORAL TRIBUNAL; PROCLAMATION OF WINNER IN THE CONTESTED ELECTION AN
ESSENTIAL REQUISITE TO VEST JURISDICTION THEREON. Section 17 of Article VI of the
1987 Constitution is clear and unambiguous that HRET jurisdiction applies only to the
members of the House of Representatives. The operative acts necessary for an electoral
candidates rightful assumption of the office for which he ran are his proclamation and his
taking an oath of office. Petitioner cannot in anyway be considered as a member of the House
of Representatives for the purpose of divesting the Commission on Elections of jurisdiction to
declare his disqualification and invoking instead Heres jurisdiction, it indubitably appearing
that he has yet to be proclaimed, much less has he taken an oath of office. That the
jurisdiction conferred upon HRET extends only to Congressional members is further
established by judicial notice of HRET Rules of Procedure, and HRET decisions consistently
holding that the proclamation of a winner in the contested election is the essential requisite
vesting jurisdiction on the HRET.
2. ID.; ID.; HOUSE OF REPRESENTATIVES QUALIFICATION OF MEMBERS; RESIDENCY
REQUIREMENT; DECISION TO TRANSFER LEGAL RESIDENCE MUST BE BONA FIDE AND
UNEQUIVOCAL. Petitioner insists that domicile is a matter of personal intention. Thus,
petitioner asserts that if he decides to transfer his legal residence so he can qualify for public
office then he is entirely free to do so. This argument to hold water, must be supported by
clear and convincing proofs that petitioner has effectively abandoned his former domicile and
that his intention is not doubtful. Indeed, domicile once established is considered to continue
and will not be deemed lost until a new one is established (Co. v. Electoral Tribunal of the
House of Representatives, 199 SCRA 692, 711 [1991]). Petitioner from childhood until his last
election as senator has consistently maintained Conception, Tarlac, as his domicile. He moved
to Ampoule Street, Palm Village, Makati, and thereafter claimed the same to be his new
domicile. This claim, however, is dismally unsupported by the records. The lease contract
entered into by petitioner for a period of two years on the third floor condominium unit in Palm
Village, Makati, in my view, does not prove his intent to abandon his domicile of origin. The
intention to establish domicile must be an intention to remain indefinitely or permanently in
the new place. This element is lacking in this instance. Worse, public respondent Commission
even found that "respondent AQUINO himself testified that his intention was really for only
one (1) year because he has other residences in Manila or in Queen City ([citing TN, May 2,
1995, p. 92)." Noting that petitioner is already barred from running for senator due to the
constitutional consecutive two-term limit, his search for a place where he could further and
continue his political career and sudden transfer thereto make his intent suspect. The best test
of intention to establish legal residence comes from ones acts and not by mere declarations
alone. To acquire, to effect a change of domicile, the intention must be bona fide and
unequivocal (28 C.C.S. 11). Petitioner, in my view, miserably failed to show a bona fide and

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unequivocal intention to effect the change of his domicile.

3. ID.; ID.; ID.; ID.; RULES PROVIDED BY THE CONSTITUTION NOT BRUSHED ASIDE BY THE
ENACTMENT OF R.A. No. 7854. The theory of legal impossibility is advanced to justify noncompliance with the constitutional qualification on residency. Petitioner explains his theory in
this wise: ". . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE
ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR
MONTHS IN THE CASE OF PETITIONERS DISTRICT IN MAKATI." Apparently, this theory is an
offshoot of Republic Act No. 7854, an act converting the municipality of Makati into a highly
urbanized city. This law enacted on January 2, 1995, established a Second Congressional
district in Makati in which petitioner ran as a Congressional candidate. Since the second
district, according to petitioner, is barely four (4) months old then the one (1) year residence
qualification provided by the Constitution is inapplicable. Petitioners acts, however, as borne
by the records, belie his own theory. Originally, he placed in his certificate of candidacy an
entry of ten (10) months residence in Makati. Petitioner then had it amended to one (1) year
and thirteen (13) days to correct what he claims as a mere inadvertent mistake. I doubt the
sincerity of this representation. If petitioner is indeed persuaded by his own theory, the ten
months residence he initially wrote would have more than sufficiently qualified him to run in
the barely four-month old Makati district. The amendment only reveals the true intent of
petitioner to comply with the one year constitutional requirement for residence, adding an
extra thirteen (13) days for full measure. Petitioner apparently wanted to argue one way
(theory of legal impossibility), but at the same time played it safe in the other (the
constitutional one year residence requirement). And that is not all. If we were to adhere to
petitioners theory of legal impossibility, then residents in that district shorn of the
constitutional six months residence requirement for prospective voters (Article V, Section 1 of
the 1987 Constitution) would have certainly qualified to vote. That would have legitimized the
entry and electoral exercise of flying voters one of the historic nemeses of a clean and
honest election. Furthermore, to subscribe to petitioners contention that the constitutional
qualification of candidates should be brushed aside in view of the enactment of R.A. No. 7854
will indubitably violate the manner and procedure for the amendment or revision of the
constitution outlined under Article VIII of the 1987 Constitution. A legislative enactment, it has
to be emphasized, cannot render nugatory the constitution. The constitution is superior to a
statute. It is the fundamental and organic law of the land to which every state must conform
and harmonize.
4. ELECTION LAW; COMMISSION ON ELECTIONS; JURISDICTION THEREOF CANNOT BE
QUESTIONED IF THE PARTY ACTIVELY PARTICIPATED IN THE PROCEEDINGS THEREIN. It is
not right for a party who has affirmed and invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an
adverse decision. Perforce, petitioners asseverating that the COMELEC has no jurisdiction to
rule on his qualification must fail.
5. ID.; DISQUALIFICATION OF CANDIDATE; VOTES CAST IN HIS FAVOR SHALL NOT BE
COUNTED. It has been contended that a second place candidate cannot be proclaimed a
substitute winner. Justice Francisco finds the proposition quite unacceptable. A disqualified
"candidate" is not a candidate and the votes which may have been cast in his favor are
nothing but stray votes of no legal consequence. A disqualified person like the petitioner

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receives no vote or zero vote. In short, no-candidate-no vote. Petitioner had therefore no
right, in fact and in law, to claim first place for he has nothing to base his right. The legislative
intent is clear as provided by R.A. 6646, Section 6, in that votes cast for a disqualified
candidate shall not be counted as they are considered stray (Section 211, Rule 24, Omnibus
Election Code). It is only from the ranks of qualified candidates can one be chosen as first
placer and not from without. Necessarily, Petitioner, a disqualified candidate, cannot be a first
placer as he claims himself to be. To count the votes for a disqualified candidate would, in my
view, disenfranchise voters who voted for a qualified candidate. Legitimate votes cast for a
qualified candidate should not be penalized alongside a disqualified candidate. With this in
mind, the other qualified candidate who garnered the highest number of votes should be
proclaimed the duly elected representative of the district. Justice Francisco feels that the Labo
doctrine ought to be abandoned.
DAVIDE, JR., J., dissenting opinion:chanrob1es virtual 1aw library
1. ELECTION LAWS; OMNIBUS ELECTION CODE (BATASANG PAMBANSA 881); PETITION TO
DENY DUE COURSE TO OR CANCEL A CERTIFICATE OF CANDIDACY; RULE PROVIDED UNDER
SECTION 78 THEREOF NOT SUPERSEDED BY RULE 25 OF THE COMELEC RULES OF
PROCEDURE. The petition to disqualify the petitioner in SPA No. 95-113 is not a petition to
deny due course to or cancel a certificate of candidacy under Section 78. Nowhere in the
petition in SPA No. 95-113 is it alleged by the private respondents that a material
representation contained in the petitioners certificate of candidacy is false. What is being
attacked therein is the petitioners lack of the one-year residence qualification in the new
Second Legislative District of Makati City where he sought to be elected for the office of
Congressman. The rule governing disqualification cases on the ground of ineligibility, which is
also invoked by the private respondents, is Rule 25 of the COMELEC Rules of Procedure, as
amended on 15 February 1993. The amendment allows the filing of a petition to disqualify a
candidate on the ground that he does not possess all the qualifications provided for by the
Constitution or by existing laws. In its original form, the rule only applied to petitions for
disqualification based on the commission of any act declared by law to be a ground for
disqualification. The rule as thus amended now reads as follows: Rule 25 Disqualification of
Candidates SECTION 1. Grounds for Disqualification. Any candidate who does not possess
all the qualifications of a candidate as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds for disqualification may be disqualified
from continuing as a candidate. The italicized portion is the amendment to Rule 25, which the
COMELEC must have deemed necessary to fill up a procedural hiatus in cases of
disqualifications based on other grounds in the light of this Courts interpretation in Loong v.
Commission on Elections (216 SCRA 760 [1992]) that Rule 25 refers only to disqualifications
under Section 12 and 68 of the Omnibus Election Code. This Court explicitly stated therein as
follows: We do not agree with private respondent Ututalums contention that the petition for
disqualification, as in the case at bar, may be filed at any time after the last day for filing a
certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule
25 of the Comelec Rules of Procedure. Rule 25 of the Comelec Rules of Procedure refers to
Disqualification of Candidates; and Section 1 of said rule provides that any candidate who
commits any act declared by law to be ground for disqualification may be disqualified from
continuing as a candidate. The grounds for disqualification is expressed in Sections 12 and 68
of the Code. The petition filed by private respondent Ututalum with the respondent Comelec to
disqualify petitioner Loong on the ground that the latter made a false representation in his
certificate of candidacy as to his age, clearly does not fall under the grounds of disqualification

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as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of
Procedure governing petitions to cancel certificate of candidacy. Moreover, Section 3, Rule 25
which allows the filing of the petition at any time after the last day for the filing of certificates
of candidacy but not later than the date of proclamation, is merely a procedural rule issued by
respondent Commission which, although a constitutional body, has no legislative powers.
Thus, it can not supersede Section 78 of the Omnibus Election Code which is a legislative
enactment.
2. ID.; ELECTORAL REFORMS LAW OF 1987 (R.A. 6646); PETITION TO DENY DUE COURSE TO
OR CANCEL A CERTIFICATE OF CANDIDATES; "PROCEDURE HEREINABOVE PROVIDED"
MENTIONED UNDER SECTION 7 REFERS TO THE EFFECT OF DISQUALIFICATION CASES.
Even if we assume for the sake of argument that the petition in SPA No. 95-113 fall under
Section 78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be applied by
virtue of Section 7 thereof. The "procedure hereinabove provided" mentioned in Section 7
cannot be construed to refer to Section 6 which does not provide for a procedure but for the
EFFECTS of disqualification cases. It can only refer to the procedure provided in Section 5 of
the said Act on nuisance candidates and which is the only procedure that precedes Section 7
of the said Act. Heretofore, no law provided for the procedure to govern cases under Section
78. Applying to such cases, through Section 7 of R.A. 6646, the procedure applicable to cases
of nuisance candidates is prudent and wise, for both cases necessarily require that they be
decided before the day of the election; hence, only summary proceedings thereon can
adequately respond to the urgency of the matter.
3. ID.; ID.; EFFECTS OF DISQUALIFICATION; RULE PROVIDED UNDER SECTION 6 MERELY
SUPPLEMENTS SECTION 72 OF THE OMNIBUS ELECTION CODE. Section 6 merely
supplements Section 72 of the Omnibus Election Code by granting the COMELEC or the Court
the authority to continue hearing the case and to suspend the proclamation if the evidence of
guilt is strong. As observed by this Court in its majority opinion "the phrase when the
evidence of guilt is strong seems to suggest that the provisions of Section 6 ought to be
applicable only to disqualification cases under Section 68 of the Omnibus Election
Code."cralaw virtua1aw library
4. ID.; ID.; ID.; COMELEC NOT AUTHORIZED TO CONTINUE HEARING THE CASE AFTER THE
ELECTION EVEN WITH THE AMENDMENT OF RULE 25 OF THE COMELEC RULES OF
PROCEDURE. The amended Rule 25 of the COMELEC Rules of procedure, which is the only
rule governing petitions filed before election or proclamation for the disqualification of a
candidate on the ground that he lacks the qualifications provided for by the Constitution or by
law, does not, as can be gathered from Section 5 thereof, authorize the COMELEC to continue
hearing the case after the election.
5. ID.; ID.; ID.; RULE CANNOT BE APPLIED TO A CASE WHICH DOES NOT INVOLVE
REGIONAL, PROVINCIAL AND CITY OFFICIALS AND WHERE SUSPENSION OF PROCLAMATION
IS NOT WARRANTED BECAUSE OF ABSENCE STRONG EVIDENCE OF GUILT OR INELIGIBILITY.
Even assuming that the second sentence of Section 6 of R.A. No. 6646 is applicable to
disqualification cases based on the ground of lack of qualification, it cannot be applied to a
case which does not involve elective regional, provincial, and city officials, and where
suspension of proclamation is not warranted because of the absence of strong evidence of
guilt or ineligibility. In such a case, the candidate sought to be disqualified but who obtains the
highest number of votes has to be proclaimed. Once he is proclaimed, the COMELEC cannot

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continue with the case, and the remedy of the opponent is to contest the winning candidates
eligibility within ten days from proclamation in a quo warranto proceeding which is within the
jurisdiction of the metropolitan or municipal trial courts, in the case of barangay officials; the
regional trial courts, in the case of municipal officials (Section 2[2], Article IX-C, Constitution;
Section 253, paragraph 2, B.P. Blg. 881); the House of Representatives Electoral Tribunal, in
the case of Congressmen; the Senate Electoral Tribunal, in the case of Senators (Section 17,
Article VI, Constitution); and the Supreme Court en banc, in the case of the President or VicePresident (Section 4, Article VII, Constitution). If what is involved is an elective regional,
provincial, or city official, and the case cannot be decided before the election, the COMELEC
can, even after the proclamation of the candidate sought to be disqualified, proceed with the
case by treating it as a petition for quo warranto, since such a case properly pertains to the
exclusive jurisdiction of the COMELEC (Section 2[2], Article IX-C, Constitution; Section 253,
B.P. Blg. 881). But even granting for the sake of argument that Sections 6 and 7 of RA. No.
6646, in relation to Section 78 of the Omnibus Election Code and the amended Rule 25 of the
COMELEC Rules of Procedure, are applicable, the order of suspension of the petitioners
proclamation issued on 15 May 1995 is null and void for having been issued with grave abuse
of discretion. What was before the COMELEC en banc at that stage was the decision of the
Second Division of 6 May 1995 dismissing the petition to disqualify the petitioner and declaring
him qualified for the position. That decision is a direct and positive rejection of any claim that
the evidence of the petitioners guilt is strong. Note that it was only on 2 June 1995, when the
COMELEC en banc reversed the decision of the Second Division, that it was found that the
evidence of the petitioners ineligibility is strong. It would have been otherwise if the Second
Division had disqualified the petitioner.
VITUG, J., separate opinion:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; SCOPE OF POWER TO ENFORCE
AND ADMINISTER ALL LAWS AND REGULATIONS RELATIVE TO THE CONDUCT OF ELECTION.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and
administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2,
Constitution) that, there being nothing said to the contrary, should include to its authority
pass upon the qualification and disqualification prescribed by law of candidates to an elective
office. Indeed, pre-proclamation controversies are expressly placed under the COMELECs
jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).
2. ID.; ID.; FINDINGS AND JUDGMENT THEREOF NOT REVIEWABLE BY THE COURT EXCEPT IN
CASE OF GRAVE ABUSE OF DISCRETION. The matter before us specifically calls for the
observance of the constitutional one-year residency requirement. This issue (whether or not
there is here such compliance), to my mind, is basically a question of fact or at least
inextricably linked to such determination. The findings and judgment of the COMELEC, in
accordance with the long established rule and subject only to a number of exceptions under
the basic heading of "grave abuse of discretion," are not reviewable by this Court.
3. ELECTION LAWS; QUALIFICATION OF CANDIDATES; RESIDENCE; SYNONYMOUS WITH
DOMICILE. Justice Vitug does not find much need to do a complex exercise on what seems
to him to be a plain matter. Generally. the term "residence" has a broader connotation that
may mean permanent (domicile), official (place where ones official duties may require him to
stay) or temporary (the place where he sojourns during a considerable length of time.) For
civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil

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obligations, the domicile of a natural person is the place of his habitual residence (see Article
50, Civil Code). In election cases, the controlling rule is that heretofore announced by this
Court in Romualdez v. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408,409);
thus: "In election cases, the Court treats domicile and residence as synonymous terms, thus:
(t)he term residence as used in the election law is synonymous with domicile, which imports
not only an intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention. Domicile denotes a fixed permanent
residence to which when absent for business or pleasure, or for like reasons, one intends to
return. . . . Residence thus acquired, however, may be lost by adopting another choice of
domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1)
residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an
intention to abandon the old domicile. In other words, there must basically be animus
manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of
choice must be for an indefinite period of time; the change of residence must be voluntary;
and the residence at the place chosen for the new domicile must be actual."cralaw virtua1aw
library
4. ID.; COMMISSION ON ELECTIONS; PROCLAMATION OF CANDIDATE, NOT MERELY A
MINISTERIAL FUNCTION. The COMELECs jurisdiction, in the case of congressional elections,
ends when the jurisdiction of the Electoral Tribunal concerned begins. It signifies that the
protestee must have theretofore been duly proclaimed and has since become a "member" of
the Senate or the House of Representatives. The question can be asked on whether or not the
proclamation of a candidate is just a ministerial function of the Commission on Elections
dictated solely on the number of votes cast in an election exercise. He believes, it is not. A
ministerial duty is an obligation the performance of which, being adequately defined, does not
allow the use of further judgment or discretion. The COMELEC, in its particular case, is tasked
with the full responsibility of ascertaining all the facts and conditions such as may be required
by law before a proclamation is properly done.
5. ID.; DISQUALIFICATION OF CANDIDATE; DOES NOT ENTITLE THE CANDIDATE WHO
OBTAINED THE SECOND HIGHEST NUMBER OF VOTES TO BE DECLARED WINNER. There
the Court held in Geronimo v. Ramos, (136 SCRA 435): ". . . it would be extremely repugnant
to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has
not acquired the majority or plurality of votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which have positively declared through their
ballots that they do not choose him.Sound policy dictates that public elective offices are filled
by those who have received the highest number of votes cast in the election for that office,
and it is a fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority or plurality
of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the
candidate who obtained the highest number of votes is later declared to be disqualified or not
eligible for the office to which he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the winner of the elective office.
The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the
winner into office or maintain him there. However, in the absence of a statute which clearly
asserts a contrary political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as
stray, void or meaningless.

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MENDOZA, J., separate opinion:chanrob1es virtual 1aw library

1. ELECTION LAW; ELECTORAL REFORM LAW OF 1987 (R.A. 6646) EFFECT OF
DISQUALIFICATION CASES; SUSPENSION OF PROCLAMATION APPLIES TO THOSE WHO ARE
GUILTY OF USING "GUNS, GOONS OR GOLD" TO INFLUENCE THE OUTCOME OF ELECTIONS.
The May 15, 1995 resolution of the COMELEC en banc, suspending the proclamation of
petitioner should he obtain the highest number of votes for Representative of the Second
District of Makati, Metro Manila, purports to have been issued pursuant to 6 of R.A. No. 6646.
This provision authorizes the COMELEC to order the suspension of the proclamation "whenever
the evidence of his guilt is strong." As explained in my separate opinion in G.R. No. 119976,
however, this provision refers to proceedings under 68 of the Omnibus Election Code which
provides for the disqualification of candidates found guilty of using what in political parlance
have been referred to as "guns, goons or gold" to influence the outcome of elections. Since
the disqualification of petitioner in this case was not sought on this ground, the application of
6 of R.A. No. 6646 is clearly a grave abuse of discretion on the part of the COMELEC.
2. ID.; ID.; ID.; CANDIDATE OBTAINING THE NEXT HIGHEST NUMBER OF VOTES, ENTITLED
TO BE DECLARED THE WINNER. In the event the candidate who obtained the highest
number of votes is declared ineligible, the one who received the next highest number of votes
is entitled to be declared the winner.
3. ID.; OMNIBUS ELECTION LAW (BP 881); PETITION TO DENY DUE COURSE TO OR CANCEL
CERTIFICATE OF CANDIDACY; MAY BE FILED EXCLUSIVELY ON THE GROUND THAT A
MATERIAL REPRESENTATION CONTAINED IN THE CERTIFICATE IS FALSE. The petition to
disqualify petitioner in the COMELEC may not be justified under 78 of the OEC which
authorizes the filing of a petition for the cancellation of certificates of candidacy since such a
petition may be filed "exclusively on the ground that a material representation contained [in
the certificate] as required under Section 74 is false. "There was no allegation that in stating
in his certificate of candidacy that he is a resident of Ampoule St., Palm Village, Guadalupe
Viejo, Makati, Metro Manila, petitioner made any false representation.
DECISION
KAPUNAN, J.:
The sanctity of the peoples will must be observed at all times if our nascent democracy is to
be preserved. In any challenge having the effect of reversing a democratic voice, expressed
through the ballot, this Court should be ever so vigilant in finding solutions which would give
effect to the will of the majority, for sound public policy dictates that all elective offices are
filled by those who have received the highest number of votes cast in an election. When a
challenge to a winning candidates qualifications however becomes inevitable, the ineligibility
ought to be so noxious to the Constitution that giving effect to the apparent will of the people
would ultimately do harm to our democratic institutions.
On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate of Candidacy for the
position of Representative for the new Second Legislative District of Makati City. Among

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others, Aquino provided the following information in his certificate of candidacy,

viz.:chanrob1es virtual 1aw library
(7) RESIDENCE (Complete Address): 284 AMAPOLA COR. ADALLA STS., PALM VILLAGE,
MAKATI.
x

(8) RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY

PRECEDING THE ELECTION: ____ Years and 10 Months
x

THAT I AM ELIGIBLE for said Office; That I will support and defend the Constitution of the
Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey
the law, rules and decrees promulgated by the duly constituted authorities; That the obligation
imposed to such is assumed voluntarily, without mental reservation or purpose of evasion, and
that the facts therein are true to the best of my knowledge. 1
On April 24, 1995, Move Makati, a duly registered political party, and Mateo Bedon, Chairman
of the LAKAS-NUCD-UMDP of Barangay Cembo, Makati City, filed a petition to disqualify
Agapito A. Aquino 2 on the ground that the latter lacked the residence qualification as a
candidate for congressman which, under Section 6, Art. VI of the 1987 the Constitution,
should be for a period not less than one (1) year immediately preceding the May 8, 1995
elections. The petition was docketed as SPA No. 95-113 and was assigned to the Second
Division of the Commission on Elections (COMELEC).
On April 25, 1995, a day after said petition for disqualification was filed, petitioner filed
another certificate of candidacy amending the certificate dated March 20, 1995. This time,
petitioner stated in Item 8 of his certificate that he had resided in the constituency where he
sought to be elected for one (1) year and thirteen (13) days. 3
On May 2, 1995 petitioner filed his Answer dated April 29, 1995 praying for the dismissal of
the disqualification case. 4
On the same day, May 2, 1995, a hearing was conducted by the COMELEC wherein petitioner
testified and presented in evidence, among others, his Affidavit dated May 2, 1995, 5 lease
contract between petitioner and Leonor Feliciano dated April 1, 1994, 6 Affidavit of Leonor
Feliciano dated April 28, 1995 7 and Affidavit of Daniel Galamay dated April 28, 1995. 8
After hearing of the petition for disqualification, the Second Division of the COMELEC
promulgated a Resolution dated May 6, 1995, the decretal portion of which reads:chanrob1es
virtual 1aw library
WHEREFORE, in view of the foregoing, this Commission (Second Division) RESOLVES to
DISMISS the instant petition for Disqualification against respondent AGAPITO AQUINO and
declares him ELIGIBLE to run for the Office of Representative in the Second Legislative District

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of Makati City.
SO ORDERED. 9
On May 7, 1995, Move Makati and Mateo Bedon filed a Motion for Reconsideration of the May
6, 1995 resolution with the COMELEC en banc.
Meanwhile, on May 8, 1995, elections were held. In Makati City where three (3) candidates
vied for the congressional seat in the Second District, petitioner garnered thirty eight thousand
five hundred forty seven (38,547) votes as against another candidate, Agusto Syjuco, who
obtained thirty five thousand nine hundred ten (35,910) votes. 10
On May 10, 1995, private respondents Move Makati and Bedon filed an Urgent Motion Ad
Cautelum to Suspend Proclamation of petitioner. Thereafter, they filed an Omnibus Motion for
Reconsideration of the COMELECs Second Division resolution dated May 6, 1995 and a 2nd
Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner.
On May 15, 1995, COMELEC en banc issued an Order suspending petitioners proclamation.
The dispositive portion of the order reads:chanrob1es virtual 1aw library
WHEREFORE, pursuant to the provisions of Section 6 of Republic Act No. 6646, the Board of
Canvassers of the City of Makati is hereby directed to complete the canvassing of election
returns of the Second District of Makati, but to suspend the proclamation of respondent
Agapito A. Aquino should he obtain the winning number of votes for the position of
Representative of the Second District of the City of Makati, until the motion for reconsideration
filed by the petitioners on May 7, 1995, shall have been resolved by the Commission.
The Executive Director, this Commission, is directed to cause the immediate implementation of
this Order. The Clerk of Court of the Commission is likewise directed to inform the parties by
the fastest means available of this Order, and to calendar the hearing of the Motion for
Reconsideration on May 17, 1995, at 10:00 in the morning, PICC Press Center, Pasay City.
SO ORDERED. 11
On May 16, 1995, petitioner filed his Comment/Opposition with urgent motion to lift order of
suspension of proclamation.
On June 1, 1995, petitioner filed a "Motion to File Supplemental Memorandum and Motion to
Resolve Urgent Motion to Resolve Motion to Lift Suspension of Proclamation" wherein he
manifested his intention to raise, among others, the issue of whether of not the determination
of the qualifications of petitioner after the elections is lodged exclusively in the House of
Representatives Electoral Tribunal pursuant to Section 17, Article VI of the 1987 Constitution.
Resolving petitioners motion to lift suspension of his proclamation, the COMELEC en banc
issued an Order on June 2, 1995, the decretal portion thereof reading:chanrob1es virtual 1aw
library
Pursuant to the said provisions and considering the attendant circumstances of the case, the
Commission RESOLVED to proceed with the promulgation but to suspend its rules, to accept

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the filing of the aforesaid motion, and to allow the parties to be heard thereon because the
issue of jurisdiction now before the Commission has to be studied with more reflection and
judiciousness. 12
On the same day, June 2, 1995, the COMELEC en banc issued a Resolution reversing the
resolution of the Second Division dated May 6, 1995. The fallo reads as follows:chanrob1es
virtual 1aw library
WHEREFORE, in view of the foregoing, petitioners Motion for Reconsideration of the
Resolution of the Second Division, promulgated on May 6, 1995, is GRANTED. Respondent
Agapito A. Aquino is declared ineligible and thus disqualified as a candidate for the Office of
Representative of the Second Legislative District of Makati City in the May 8, 1995 elections,
for lack of the constitutional qualification of residence. Consequently, the order of suspension
of proclamation of the respondent should he obtain the winning number of votes, issued by
this Commission on May 15, 1995 is now made permanent.
Upon the finality of this Resolution, the Board of Canvassers of the City of Makati shall
immediately reconvene and, on the basis of the completed canvass of election returns,
determine the winner out of the remaining qualified candidates, who shall be immediately
proclaimed.
SO ORDERED. 13
Hence, the instant Petition for Certiorari 14 assailing the orders dated May 15, 1995 and June
2, 1995 as well as the resolution dated June 2, 1995 issued by the COMELEC en banc.
Petitioner raises the following errors for consideration, to wit:chanrob1es virtual 1aw library
A
THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGE THE DISQUALIFICATION
ISSUE INVOLVING CONGRESSIONAL CANDIDATES AFTER THE MAY 8, 1995 ELECTIONS, SUCH
DETERMINATION BEING RESERVED TO AND LODGE EXCLUSIVELY WITH THE HOUSE OF
REPRESENTATIVE ELECTORAL TRIBUNAL
B
ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, SAID JURISDICTION
CEASED IN THE INSTANT CASE AFTER THE ELECTIONS, AND THE REMEDY/IES AVAILABLE TO
THE ADVERSE PARTIES LIE/S IN ANOTHER FORUM WHICH, IT IS SUBMITTED, IS THE HRET
CONSISTENT WITH SECTION 17, ARTICLE VI OF THE 1987 CONSTITUTION
C
THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT PROCEEDED TO
PROMULGATE ITS QUESTIONED DECISION (ANNEX "C", PETITION). DESPITE IT OWN
RECOGNITION THAT A THRESHOLD ISSUE OF JURISDICTION HAS TO BE JUDICIOUSLY

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REVIEWED AGAIN, ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, THE
COMELEC COMMITTED GRAVE ABUSE OF DISCRETION, AND SERIOUS ERROR IN DIRECTING
WITHOUT NOTICE THE SUSPENSION OF THE PROCLAMATION OF THE PETITIONER AS THE
WINNING CONGRESSIONAL CANDIDATE AND DESPITE THE MINISTERIAL NATURE OF SUCH
DUTY TO PROCLAIM (PENDING THE FINALITY OF THE DISQUALIFICATION CASE AGAINST THE
PETITIONER) IF ONLY NOT TO THWART THE PEOPLES WILL
D
THE COMELECS FINDING OF NON-COMPLIANCE WITH THE RESIDENCY REQUIREMENT OF
ONE YEAR AGAINST THE PETITIONER IS CONTRARY TO EVIDENCE AND TO APPLICABLE LAWS
AND JURISPRUDENCE
E
IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE
ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR
MONTHS IN THE CASE OF PETITIONERS DISTRICT IN MAKATI
F
THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO LACK OF JURISDICTION WHEN
IT ORDERED THE BOARD OF CANVASSERS TO "DETERMINE AND PROCLAIM THE WINNER OUT
OF; THE REMAINING QUALIFIED CANDIDATES" AFTER THE ERRONEOUS DISQUALIFICATION
OF YOUR PETITIONER IN THAT SUCH DIRECTIVE IS IN TOTAL DISREGARD OF THE WELL
SETTLED DOCTRINE THAT A SECOND PLACE CANDIDATE OR A PERSON WHO WAS
REPUDIATED BY THE ELECTORATE IS A LOSER AND CANNOT BE PROCLAIMED AS
SUBSTITUTE WINNER. 15
I
In his first three assignments of error, petitioner vigorously contends that after the May 8,
1995 elections, the COMELEC lost its jurisdiction over the question of petitioners qualifications
to run for member of the House of Representative. He claims that jurisdiction over the petition
for disqualification is exclusively lodged with the House of Representatives Electoral Tribunal
(HRET). Given the yet-unresolved question of jurisdiction, petitioner avers that the COMELEC
committed serious error and grave abuse of discretion in directing the suspension of his
proclamation as the winning candidate in the Second Congressional District of Makati City. We
disagree.
Petitioner conveniently confuses the distinction between an unproclaimed-candidate to the
House of Representatives and a member of the same. Obtaining the highest number of votes
in an election does not automatically vest the position in the winning candidate. Section 17 of

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Article VI of the 1987 Constitution reads:chanrob1es virtual 1aw library

The Senate and the House of Representatives shall have an Electoral Tribunal which shall be
the sole judge of all contests relating to the election, returns and qualifications of their
respective Members.
Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction over all
contests relative to the election, returns and qualifications of candidates for either the Senate
or the House only when the latter become members of either the Senate or the House of
Representatives. A candidate who has not been proclaimed 16 and who has not taken his oath
of office cannot be said to be a member of the House of Representatives subject to Section 17
of Article VI of the Constitution. While the proclamation of a winning candidate in an election is
ministerial, B .P. 881 in conjunction with Sec. 6 of R.A. 6646 allows suspension of
proclamation under circumstances mentioned therein. Thus, petitioners contention that "after
the conduct of the election and (petitioner) has been established the winner of the electoral
exercise from the moment of election, the COMELEC is automatically divested of authority to
pass upon the question of qualification" finds no basis in law, because even after the elections
the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to
hear and decide questions relating to qualifications of candidates. Section 6 states:chanrob1es
virtual 1aw library
SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of
guilt is strong.
Under the above-quoted provision, not only is a disqualification case against a candidate
allowed to continue after the election (and does not oust the COMELEC of its jurisdiction), but
his obtaining the highest number of votes will not result in the suspension or termination of
the proceedings against him when the evidence of guilt is strong. While the phrase "when the
evidence of guilt is strong" seems to suggest that the provisions of Section. 6 ought to be
applicable only to disqualification cases under Section 68 of the Omnibus Election Code,
Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to cases involving
disqualification based on ineligibility under Section 78 of B .P. 881. Section 7
states:chanrob1es virtual 1aw library
SECTION 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy. The
procedure hereinabove provided shall apply to petition to deny due course to or cancel a
certificate of candidacy based on Sec 78 of Batas Pambansa 881.
II
We agree with COMELECs contention that in order that petitioner could qualify as a candidate
for Representative of the Second District of Makati City the latter "must prove that he has

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established not just residence but domicile of choice." 17

The Constitution requires that a person seeking election to the House of Representatives
should be a resident of the district in which he seeks election for a period of not less than one
(I) year prior to the elections. 18 Residence, for election law purposes, has a settled meaning
in our jurisdiction.
In Co v. Electrocal Tribunal of the House of Representatives 19 this Court held that the term
"residence" has always been understood as synonymous with "domicile" not only under the
previous Constitutions but also under the 1987 Constitution. The Court there held: 20
The deliberations of the Constitutional Commission reveal that the meaning of residence vis-avis the qualifications of a candidate for Congress continues to remain the same as that of
domicile, to wit:chanrob1es virtual 1aw library
Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional
Convention, there was an attempt to require residence in the place not less than one year
immediately preceding the day of elections. So my question is: What is the Committees
concept of residence for the legislature? Is it actual residence or is it the concept of domicile or
constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the National Assembly are
concerned, the proposed section merely provides, among others, and a resident thereof, that
is, in the district, for a period of not less than one year preceding the day of the election. This
was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile
(underscoring ours) Records of the 1987 Constitutional Convention, Vol. II, July 22, 1986, p.
87).
x

Mrs. Rosario Braid: The next question is on section 7, page 2. I think Commissioner Nolledo
has raised the same point that resident has been interpreted at times as a matter of intention
rather than actual residence.
Mr. De Los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to
actual residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially considering that the
provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may
vote as enacted by law. So, we have to stick to the original concept that it should be by
domicile and not physical and actual residence. (Records of the 1987 Constitutional
Commission, Vol. II, July 22, 1986, p. 110).
The framers of the Constitution adhered to the earlier definition given to the word "residence"
which regarded it as having the same meaning as domicile.

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Clearly, the place "where a party actually or constructively has his permanent home," 21
where he, no matter where he may be found at any given time, eventually intends to return
and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of
residence for the purposes of election law. The manifest purpose of this deviation from the
usual conceptions of residency in law as explained in Gallego vs Vera 22 is "to exclude
strangers or newcomers unfamiliar with the conditions and needs of the community from
taking advantage of favorable circumstances existing in that community for electoral gain.
While there is nothing wrong with the practice of establishing residence in a given area for
meeting election law requirements, this nonetheless defeats the essence of representation,
which is to place through the assent of voters those most cognizant and sensitive to the needs
of a particular district, if a candidate falls short of the period of residency mandated by law for
him to qualify. That purpose could be obviously best met by individuals who have either had
actual residence in the area for a given period or who have been domiciled in the same area
either by origin or by choice. It would, therefore, be imperative for this Court to inquire into
the threshold question as to whether or not petitioner actually was a resident for a period of
one year in the area now encompassed by the Second Legislative District of Makati at the time
of his election or whether or not he was domiciled in the same.
As found by the COMELEC en banc petitioner in his Certificate of Candidacy for the May 11,
1992 elections, indicated not only that he was a resident of San Jose, Concepcion, Tarlac in
1992 but that he was a resident of the same for 52 years immediately preceding that election.
23 At the time, his certificate indicated that he was also a registered voter of the same
district. 24 His birth certificate places Concepcion, Tarlac as the birthplace of both of his
parents Benigno and Aurora. 25 Thus, from data furnished by petitioner himself to the
COMELEC at various times during his political career, what stands consistently clear and
unassailable is that his domicile of origin of record up to the time of filing of his most recent
certificate of candidacy for the 1995 elections was Concepcion, Tarlac.
Petitioners alleged connection with the Second District of Makati City is an alleged lease
agreement of a condominium unit in the area. As the COMELEC, in its disputed Resolution
noted:chanrob1es virtual 1aw library
The intention not to establish a permanent home in Makati City is evident in his leasing a
condominium unit instead of buying one. While a lease contract may be indicative of
respondents intention to reside in Makati City it does not engender the kind of permanency
required to prove abandonment of ones original domicile especially since, by its terms, it is
only for a period of two (2) years, and respondent Aquino himself testified that his intention
was really for only one(1) year, because he has other "residences" in Manila or Quezon City.
26
While property ownership is not and should never be an indicia of the right to vote or to be
voted upon, the fact that petitioner himself claims that he has other residences in Metro
Manila coupled with the short length of time he claims to be a resident of the condominium
unit in Makati (and the fact of his stated domicile in Tarlac) "indicate that the sole purpose of
(petitioner) in transferring his physical residence" 27 is not to acquire a new, residence or
domicile "but only to qualify as a candidate for Representative of the Second District of Makati
City." 28 The absence of clear and positive proof showing a successful abandonment of
domicile under the conditions stated above, the lack of identification sentimental, actual or
otherwise with the area, and the suspicious circumstances under which the lease agreement

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was effected all belie petitioners claim of residency for the period required by the
Constitution, in the Second District of Makati. COMELEC en banc emphatically pointed
out:chanrob1es virtual 1aw library
[T]he lease agreement was executed mainly to support the one year residence requirement as
a qualification for a candidate of Representative, by establishing a commencement dated of his
residence. If a perfectly valid lease agreement cannot, by itself establish a domicile of choice,
this particular lease agreement cannot do better. 29
Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare
assertion which is hardly supported by the facts in the case at bench. Domicile of origin is not
easily lost. To successfully effect a change of domicile, petitioner must prove an actual
removal or an actual change of domicile, a bona fide intention of abandoning the former place
of residence and establishing a new one and definite acts which correspond with the purpose.
30 These requirements are hardly met by the evidence adduced in support of petitioners
claims of a change of domicile from Tarlac to the Second District of Makati. In the absence of
clear and positive proof, the domicile of origin should be deemed to continue.
Finally, petitioners submission that it would be legally impossible to impose the one year
residency requirement in newly created political district is specious and lacks basis in logic. A
new political district is not created out of thin air. It is carved out from part of a real and
existing geographic area, in this case the old Municipality of Makati. That people actually lived
or were domiciled in the area encompassed by the new Second District cannot be denied.
Modern-day carpetbaggers cannot be allowed take advantage of the creation of new political
districts by suddenly transplanting themselves in such new districts, prejudicing their genuine
residents in the process of taking advantage of existing conditions in these areas. It will be
noted, as COMELEC did in its assailed resolution, that petitioner was disqualified from running
in the Senate because of the constitutional two-term limit, and had to shop around for a place
where he could run for, public office. Nothing wrong with that, but he must first prove with
reasonable certainty that he has effected a change of residence for election law purposes for
the period required by law. This he has not effectively done.
III
The next issue here is whether or not the COMELEC erred in issuing it Order instructing the
Board of Canvassers of Makati City to proclaim as winner the candidate receiving the next
higher number of votes. The answer must be in the negative.
To contend that Syjuco should be proclaimed because he was the "first" among the qualified
candidates in the May 8, 1995 elections is to misconstrue the nature of the democratic
electoral process and the sociological and psychological underpinnings behind voters
preferences. The result suggested by private respondent would lead not only to our reversing
the doctrines firmly entrenched in the two cases of Labo v. Comelec 31 but also to a massive
disenfranchisement of the thousands of voters who cast their vote in favor of a candidate they
believed could be validly voted for during the elections. Had petitioner been disqualified before
the elections, the choice, moreover, would have been different. The votes for Aquino given the
acrimony which attended the campaign, would not have automatically gone to second placer
Syjuco The nature of the playing field would have substantially changed. To simplistically

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assume that the second placer would have received the other votes would be to substitute our
judgment for the mind of the voter. The second placer is just that, a second placer. He lost the
elections. He was repudiated by either a majority or plurality of voters. He could not be
considered the first among qualified candidates because in a field which excludes the
disqualified candidate, the conditions would have substantially changed. We are not prepared
to extrapolate the results under such circumstances.
In these cases, the pendulum of judicial opinion in our country has swung from one end to the
other. In the early case of Topacio v. Paredes 32 we declared as valid, votes cast in favor of a
disqualified, ineligible or dead candidate provided the people who voted for such candidate
believed in good faith that at the of the elections said candidate was either qualified, eligible or
alive. The votes cast in favor of a disqualified, ineligible or dead candidate cannot be
considered stray votes, consequently, the candidate who obtained the next higher number of
votes cannot be proclaimed as winner. According to this Court in the said case, "there is not,
strictly speaking, a contest, that the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the eligibility of the one receiving
the plurality of the legally cast ballots."cralaw virtua1aw library
Then in Ticson v. Comelec, 33 this Court held that votes cast in favor of a non-candidate in
view of his unlawful change of party affiliation (which was then a ground for disqualification)
cannot be considered in the canvassing of election returns and the votes fall into the category
of invalid and nonexistent votes because a disqualified candidate is no candidate at all and is
not a candidate in the eyes of the law. As a result, this Court upheld the proclamation of the
only candidate left in the disputed position.
In Geronimo v. Ramos 34 we reiterated our ruling in Topacio v. Paredes that the candidate
who lost in an election cannot be proclaimed the winner in the event the candidate who ran for
the position is ineligible. We held in Geronimo:chanrob1es virtual 1aw library
[I]t would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the
elections. (20 Corpus Juris 2nd, S 243, p. 676.)
However, in Santos v. Comelec 35 we made a turnabout from our previous ruling in Geronimo
v. Ramos and pronounced that "votes cast for a disqualified candidate fall within the category
of invalid or non-existent votes because a disqualified candidate is no candidate at all in the
eyes of the law," reverting to our earlier ruling in Ticson v. Comelec.
In the more recent cases of Labo, Jr. v. Comelec; 36 Abella v. Comelec; 37 and Benito v.
Comelec, 38 this Court reiterated and upheld the ruling in Topacio v. Paredes and Geronimo v.
Ramos to the effect that the ineligibility of a candidate receiving the majority votes does not
entitle the eligible candidate receiving the next higher number of votes to be declared elected,

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and that a minority or defeated candidate cannot be declared elected to the office. In these
cases, we put emphasis on our pronouncement in Geronimo v. Ramos that:chanrob1es virtual
1aw library
The fact that a candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle
the candidate who obtained the second highest number of votes to be declared the winner of
the elective office. The votes cast for a dead, disqualified, or non-eligible person may be valid
to vote the winner into office or maintain him there. However, in the absence of a statute
which clearly asserts a contrary political and legislative policy on the matter, if the votes were
cast in sincere belief that candidate was alive, qualified, or eligible, they should not be treated
as stray, void or meaningless.
Synthesizing these rulings we declared in the latest case of Labo, Jr. v. COMELEC that: 39
While Ortega may have garnered the second highest number of votes for the office of city
mayor, the fact remains that he was not the choice of the sovereign will. Petitioner Labo was
overwhelmingly voted by the electorate for the office of mayor in the belief that he was then
qualified to serve the people of Baguio City and his subsequent disqualification does not make
respondent Ortega the mayor-elect. This is the import of the recent case of Abella v. Comelec
(201 SCRA 253 [1991]), wherein we held that:chanrob1es virtual 1aw library
While it is true that SPC No. 88-546 was originally a petition to deny due course to the
certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the
fact remains that the local elections of Feb. 1, 1988 in the province of Leyte proceeded with
Larrazabal considered as a bona fide candidate. The voters of the province voted for her in the
sincere belief that she was a qualified candidate for the position of governor. Her votes was
counted and she obtained the highest number of votes. The net effect is that petitioner lost in
the election. He was repudiated by the electorate. . . . What matters is that in the event a
candidate for an elected position who is voted for and who obtains the highest number of
votes is disqualified for not possessing the eligibility, requirements at the time of the election
as provided by law, the candidate who obtains the second highest number of votes for the
same position cannot assume the vacated position. (Emphasis supplied)
Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to
depart therefrom. Like Abella, petitioner Ortega lost in the election. He was repudiated by the
electorate. He was obviously not the choice of the people of Baguio City.
Thus, while respondent Ortega (G.R No. 105111) originally filed a disqualification case with
the Comelec (docketed as SPA-92-029) seeking to deny due course to petitioners (Labos)
candidacy, the same did not deter the people of Baguio City from voting for petitioner Labo,
who, by then, was allowed by the respondent Comelec to be voted upon, the resolution for his
disqualification having yet to attain the degree of finality (Sec. 78, Omnibus Election Code).
And in the earlier case of Labo v. Comelec (supra), We held:chanrob1es virtual 1aw library
Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as
he obtained only the second highest number of votes in the election, he was obviously not the

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choice of the people of Baguio City.

The latest ruling of the Court in this issue is Santos v. Commission on Election, (137 SCRA
740) decided in 1985. In that case, the candidate who placed second was proclaimed elected
after the votes for his winning rival, who was disqualified as a turncoat and considered a noncandidate, were all disregarded as stray. In effect, the second placer won by default. That
decisions was supported by eight members of the Court then (Cuevas J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay, and Aquino, JJ.,
concurring) with three dissenting (Teehankee, actingC.J., Abad Santos and Melencio- Herrera)
and another two reserving their votes (Plana and Gutierrez, Jr.). One was on official leave
(Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor
of the earlier case of Geronimo v. Santos (136 SCRA 435), which represents the more logical
and democratic rule. That case, which reiterated the doctrine first announced in 1912 in
Topacio v. Paredes (23 Phil. 238) was supported by ten members of the Court . . .
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle
the eligible candidate receiving the next highest number of votes to be declared elected. A
minority or defeated candidate cannot be deemed elected to the office.
Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v. Giles,
52 Am. Dec. 149).
It is therefore incorrect to argue that since a candidate has been disqualified, the votes
intended for the disqualified candidate should, in effect, be considered null and void. This
would amount to disenfranchising the electorate in whom sovereignty resides. At the risk of
being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without
any intention to misapply their franchise, and in the honest belief that Labo was then qualified
to be the person to whom they would entrust the exercise of the powers of the government.
Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office.
Whether or not the candidate whom the majority voted for can or cannot be installed, under
no circumstances can a minority or defeated candidate be deemed elected to the offices.
Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471
votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p.
109; G.R No. 105111).
This, it bears repeating, expresses the more logical and democratic view. We cannot, in
another shift of the pendulum, subscribe to the contention that the runner-up in an election in
which the winner has been disqualified is actually the winner among the remaining qualified
candidates because this clearly represents a minority view supported only by a scattered
number of obscure American state and English court decisions. 40 These decisions neglect the
possibility that the runner-up, though obviously qualified, could receive votes so measly and
insignificant in number that the votes they receive would be tantamount to rejection.
Theoretically, the "second placer" could receive just one vote. In such a case, it is absurd to
proclaim the totally repudiated candidate as the voters "choice." Moreover, even in instances
where the votes received by the second placer may not be considered numerically
insignificant, voters preferences are nonetheless so volatile and unpredictable that the result

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among qualified candidates, should the equation change because of the disqualification of an
ineligible candidate, would not be self-evident. Absence of the apparent though ineligible
winner among the choices could lead to a shifting of votes to candidates other than the second
placer. By any mathematical formulation, the runner-up in an election cannot be construed to
have obtained a majority or plurality of votes cast where an "ineligible" candidate has
garnered either a majority or plurality of the votes.
In fine, we are left with no choice but to affirm the COMELECs conclusion declaring herein
petitioner ineligible for the elective position of Representative of Makati Citys Second District
on the basis of respondent commissions finding that petitioner lacks the one year residence in
the district mandated by the 1987 Constitution. A democratic government is necessarily a
government of laws. In a republican government those laws are themselves ordained by the
people. Through their representatives, they dictate the qualifications necessary for service in
government positions. And. as petitioner clearly lacks one of the essential qualifications for
running for membership In the House of Representatives, not even the will of a majority or
plurality of the voters of the Second District of Makati City would substitute for a requirement
mandated by the fundamental law itself.
WHEREFORE, premises considered, the instant petition is hereby DISMISSED. Our Order
restraining respondent COMELEC from proclaiming the candidate garnering the next highest
number of votes in the congressional elections for the Second District of Makati City is made
PERMANENT.
SO-ORDERED.
Regalado, Melo, Puno and Hermosisima, Jr., JJ., concur.
Feliciano, J., is on leave.
Separate Opinions
PADILLA, J., concurring:chanrob1es virtual 1aw library
I agree with the conclusion reached by the majority that petitioner Aquino has not shown by
clear and convincing evidence that he had established his residence in the second district of
Makati City for a period of not less than one (1) year prior to the 8 May 1995 elections.
However, I do not fully subscribe to its proposition that petitioners residence (in Makati)
should be his "domicile of choice" .
Article VI, Section 6 of the Constitution provides that:jgc:chanrobles.com.ph
"No person shall be a member of the House of Representatives unless he is a natural-born
citizen of the Philippines and on the day of the election, is at least twenty-five years of age,
able to read and write, and, except the party list representatives, a registered voter in the
district in which he shall be elected, and a resident thereof for a period of not less than one
year immediately preceding the day of the election." (Emphasis supplied)
In G.R No. 119976, Marcos v. Comelec, I have maintained that the phrase "a resident thereof

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for a period of not less than one year" means actual and physical presence in the legislative
district of the congressional candidate, and that said period of one year must be satisfied
regardless of whether or not a persons residence or domicile coincides.
To my mind, petitioner should be declared disqualified to run as representative in the 2nd
district of Makati City in the 8 May 1995 elections not because he failed to prove his residence
therein as his domicile of choice, but because he failed altogether to prove that he had
actually and physically resided therein for a period of not less than one (1) year immediately
preceding the 8 May 1995 elections.
Noteworthy is the established fact before the Comelec that petitioner admits having
maintained other residences in Metro Manila apart from his leased condominium unit in
Makatis 2nd district. 1 This clear admission made by petitioner against his interest weakens
his argument that "where a party decides to transfer his legal residence so he can qualify for
public office, he is free to do so." (see p. 20, Petition).
Petitioner evidently wants to impress the Court that his other residences in Metro Manila could
never have become his domicile of choice because it never entered his mind and suddenly,
seemingly not contented with these other residences, he rents a condominium unit in Makati,
and calls it his domicile of choice all these without adding clear and convincing evidence
that he did actually live and reside in Makati for at least one year prior to 8 May 1995 and
that he no longer lived and resided in his other residence during said one year period.
It follows, likewise, that the lease contract relied upon by petitioner, standing alone,
established only the alleged date (April 25, 1994) of its due execution. Stated otherwise, the
lease contract tells us that petitioner had been leasing a condominium unit in Makati City for
more than a year prior to 8 May 1995, but it does not prove that petitioner actually and
physically resided therein for the same period, in the light of his admission that he maintained
other residences in Metro Manila.
In light of petitioners disqualification, the corollary issue to be resolved is whether or not
jurisdiction continued to be vested in the Comelec to order the Makati Board of Canvassers" to
determine and proclaim the winner out of the remaining qualified candidates" after petitioner
had been declared post 8-May 1995 as disqualified.
I agree with the proposition advanced by the Solicitor General that sec. 6 of R.A. 6646 clearly
provides that votes cast for a disqualified candidate shall not be counted,
thus:jgc:chanrobles.com.ph
"SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong."cralaw virtua1aw library
There can be no dispute that if a final judgment is rendered before the election, declaring a

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particular candidate as disqualified, such disqualified candidate shall not be voted for and
votes cast for him shall not be counted, thus posing no problem in proclaiming the candidate
who receives the highest number of votes among the qualified candidates.
But what about after the election? Sec. 6 appears categorical enough in stating: "if for any
reason" no final judgment of disqualification is rendered before the elections, and the
candidate facing disqualification is voted for and receives the winning number of votes, the
Comelec or the Court is not ousted of its jurisdiction to hear and try the case up to final
judgment, hence, the power to even suspend the proclamation of the erstwhile winning
candidate when evidence of his guilt is strong.
It thus appears clear that the law does not dichotomize the effect of a final judgment of
disqualification in terms of time considerations. There is only one natural and logical effect:
the disqualified candidate shall not be voted and, if voted, the votes cast for him shall not be
counted. Ubi lex non distinguit nec nos distinguere debemus (where the law does not
distinguish, we should not distinguish.)
At this point, what I said in Marcos, supra, follows:jgc:chanrobles.com.ph
"What happens then when after the elections are over, one is declared disqualified? Then,
votes cast for him "shall not be counted" and in legal contemplation, he no longer received the
highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the winner
simply because a "winning candidate is disqualified," but that the law consider him as the
candidate who had obtained the highest number of votes as a result of the votes cast for the
disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason why this
Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It
has been stated that "the qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no less than the Constitution."cralaw
virtua1aw library
Therefore the candidate who received the highest number of votes from among the qualified
candidates, should be proclaimed
ACCORDINGLY, I vote to DISMISS the petition.
DAVIDE, JR., J., dissenting:chanrob1es virtual 1aw library
In sustaining the COMELECs acts of suspending the proclamation of petitioner Agapito A.
Aquino and of proceeding to hear the disqualification case against him, the majority opinion
relies on Section 6 of R.A. No. 6646 which it claims to be applicable by virtue of Section 7
thereof to petitions to deny due course to or cancel a certificate of candidacy under Section 78
of the Omnibus Election Code (B.P. Blg. 881).
I disagree.

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In the first place, the petition to disqualify the petitioner in SPA No. 95-113 is not a petition to
deny due course to or cancel a certificate of candidacy under Section 78, which
reads:chanrob1es virtual 1aw library
SECTION 78. Petition to deny due course to or cancel a certificate of candidacy. A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before the election. (Emphasis
supplied)
Nowhere in the petition in SPA No. 95-113 is it alleged by the private respondents that a
material representation contained in the petitioners certificate of candidacy is false. What is
being attacked therein is the petitioners lack of the one-year residence qualification in the
new Second Legislative District of Makati City where he sought to be elected for the office of
Congressman.
The rule governing disqualification cases on the ground of ineligibility, which is also invoked by
the private respondents, is Rule 25 of the COMELEC Rules of Procedure as amended on 15
February 1993. The amendment allows the filing of a petition to disqualify a candidate on the
ground that he does not possess all the qualifications provided for by the Constitution or by
existing laws. In its original form, the rule only applied to petitions for disqualification based
on the commission of any act declared by law to be a ground for disqualification. The rule as
thus amended now reads as follows:chanrob1es virtual 1aw library
Rule 25 Disqualification of Candidates
SECTION 1. Grounds for Disqualification. Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or who
commits any act declared by law to be grounds for disqualification may be disqualified from
continuing as a candidate.
SECTION 2. Who May File Petition for Disqualification. Any citizen of voting age, or duly
registered political party, organization or coalition of political parties may file with the Law
Department of the Commission a petition to disqualify a candidate on grounds provided by
law.
SECTION 3. Period to File Petition. The petition shall be filed any day after the last day for
filing of certificates of candidacy but not later than the date of proclamation.
SECTION 4. Summary Proceeding. The petition shall be heard summarily after due notice.
SECTION 5. Effect of Petition if Unresolved Before Completion of Canvass. If the petition,
for reasons beyond the control of the Commission, cannot be decided before the completion of
the canvass, the votes cast for the respondent may be included in the counting and in the
canvassing; however, if the evidence of guilt is strong, his proclamation shall be suspended
notwithstanding the fact that he received the winning number of votes in such election.

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The underscored portion is the amendment to Rule 25, which the COMELEC must have
deemed necessary to fill up a procedural hiatus in cases of disqualifications based on other
grounds in the light of this Courts interpretation in Loong v. Commission on Elections (216
SCRA 760 [1992]) that Rule 25 refers only to disqualifications under Sections 12 and 68 of the
Omnibus Election Code. This Court explicitly stated therein as follows:chanrob1es virtual 1aw
library
We do not agree with private respondent Ututalums contention that the petition for
disqualification, as in the case at bar, may be filed at any time after the last day for filing a
certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule
25 of the Comelec Rules of Procedure.
Rule 25 of the Comelec Rules of Procedure refers to disqualification of Candidates; and Section
1 of said rule provides that any candidate who commits any act declared by law to be a
ground for disqualification may be disqualified from continuing as a candidate. The grounds for
disqualification as expressed in Sections 12 and 68 of the Code are the following:chanrob1es
virtual 1aw library
SECTION 12. Disqualification. Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgment for subversion, insurrection,
rebellion or for any offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary pardon or granted
amnesty.
SECTION 63 [sic]. Disqualifications. Any candidate who, in an action or protest in which he
is a party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement provided for in
the election laws.
The petition filed by private respondent Ututalum with the respondent Comelec to disqualify
petitioner Loong on the ground that the latter made a false representation in his certificate of
candidacy as to his age, clearly does not fall under the grounds of disqualification as provided
for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure
governing petitions to cancel certificate of candidacy. Moreover, Section 3, Rule 25 which
allows the filing of the petition at any time after the last day for the filing of certificates of
candidacy but not later than the date of proclamation, is merely a procedural rule issued by
respondent Commission which, although a constitutional body, has no legislative powers.
Thus, it can not supersede Section 78 of the Omnibus Election Code which is a legislative

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enactment.
Second, even if we assume for the sake of argument that the petition in SPA No. 95-113 fall
under Section 78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be
applied by virtue of Section 7 thereof. Sections 6 and 7 reads:chanrob1es virtual 1aw library
SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such elections,
the Court or Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong.
SECTION 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The
procedure hereinabove provided shall apply to petitions to deny due course to or cancel a
certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.
The "procedure hereinabove provided" mentioned in Section 7 cannot be construed to refer to
Section 6 which does not Provide for a procedure but for the EFFECTS of disqualification cases.
It can only refer to the procedure provided in Section 5 of the said Act on nuisance candidates
which reads as follows:chanrob1es virtual 1aw library
SECTION 5. Procedure in Cases of Nuisance Candidates. (a) A verified petition to declare a
duly registered candidate as a nuisance candidate under Section 69 of Batas Pambansa Blg.
881 shall be filed personally or through duly authorized representative with the Commission by
any registered candidate for the same office within five (5) days from the last day for the filing
of certificates of candidacy. Filing by mail shall not be allowed.
(b) Within three (3) days from the filing of the petition, the Commission shall issue summons
to the respondent candidate together with a copy of the petition and its enclosures, if any.
(c) The respondent shall be given three (3) days from receipt of the summons within which to
file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the
petitioner. Grounds for a motion to dismiss may be raised as affirmative defenses.
(d) The Commission may designate any of its officials who are lawyers to hear the case and
receive evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the
parties may be required to submit position papers together with affidavits or counter-affidavits
and other documentary evidence. The hearing officer shall immediately submit to the
Commission his findings, reports, and recommendations within five (5) days from the
completion of such submission of evidence. The Commission shall render its decision within
five (5) days from receipt thereof.
(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a
copy thereof by the parties, be final and executory unless stayed by the Supreme Court.
(f) The Commission shall within twenty-four hours, through the fastest available means,

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disseminate its decision or the decision of the Supreme Court or the city or municipal election
registrars, boards of election inspectors and the general public in the political subdivision
concerned.
and which is the only procedure that precedes Section 7 of the said Act. Heretofore, no law
provided for the procedure to govern cases under Section 78. Applying to such cases, through
Section 7 of R.A. No. 6646, the procedure applicable to cases of nuisance candidates is
prudent and wise, for both cases necessarily require that they be decided before the day of
the election; hence, only summary proceedings thereon can adequately respond to the
urgency of the matter.
Third, Section 6 merely supplements Section 72 of the Omnibus Election Code providing as
follows:chanrob1es virtual 1aw library
SECTION 72. Effects of disqualification cases and priority. The Commission and the courts
shall give priority to cases of disqualification by reason of violation of this Act to the end that a
final decision shall be rendered not later than seven days before the election in which the
disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a
candidate is not declared by final judgment before an election to be disqualified and, he is
voted for and receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation and assumption to
office.
by granting the COMELEC or the Court the authority to continue hearing the case and to
suspend the proclamation if the evidence of guilt is strong. As observed by this Court in its
majority opinion, "the phrase when the evidence of guilt is strong seems to suggest that the
provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of
the Omnibus Election Code."cralaw virtua1aw library
Fourth, the amended Rule 25 of the COMELEC Rules of Procedure, which is the only rule
governing petitions filed before election or proclamation for the disqualification of a candidate
on the ground that he lacks the qualifications provided for by the Constitution or by law, does
not, as can be gathered from Section 5 thereof, authorize the COMELEC to continue hearing
the case after the election.
Fifth, even assuming that the second sentence of Section 6 of R.A. No. 6646 is applicable to
disqualification cases based on the ground of lack of qualification, it cannot be applied to a
case which does not involve elective regional, provincial, and city officials, and where
suspension of proclamation is not warranted because of the absence of strong evidence of
guilt or ineligibility. In such a case, the candidate sought to be disqualified but who obtains the
highest number of votes has to be proclaimed. Once he is proclaimed, the COMELEC cannot
continue with the case, and the remedy of the opponent is to contest the winning candidates
eligibility within ten days from proclamation in a quo warranto proceeding which is within the
jurisdiction of the metropolitan or municipal trial courts, in the case of barangay officials; the
regional trial courts, in the case of municipal officials (Section 2(2), Article IX-C, Constitution;
Section 253, paragraph 2, B.P. Blg. 881); the House of Representatives Electoral Tribunal, in

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the case of Congressmen; the Senate Electoral Tribunal, in the case of Senators (Section 17,
Article VI, Constitution); and the Supreme Court en banc, in the case of the President or VicePresident (Section 4, Article VII, Constitution).
If what is involved is an elective regional, provincial, or city official, and the case cannot be
decided before the election, the COMELEC can, even after the proclamation of the candidate
sought to be disqualified, proceed with the case by treating it as a petition for quo warranto,
since such a case properly pertains to the exclusive jurisdiction of the COMELEC (Section 2(2),
Article IX-C, Constitution; Section 253, B.P. Blg. 881).
But even granting for the sake of argument that Sections 6 and 7 of R.A. No. 6646, in relation
to Section 78 of the Omnibus Election Code and the amended Rule 25 of the COMELEC Rules
of Procedure, are applicable, the order of suspension of the petitioners proclamation issued on
15 May 1995 is null and void for having been issued with grave abuse of discretion. What was
before the COMELEC en banc at that stage was the decision of the Second Division of 6 May
1995 dismissing the petition to disqualify the petitioner and declaring him qualified for the
position. That decision is a direct and positive rejection of any claim that the evidence of the
petitioners guilt is strong. Note that it was only on 2 June 1995, when the COMELEC en banc
reversed the decision of the Second Division, that it was found that the evidence of the
petitioners ineligibility is strong. It would have been otherwise if the Second Division had
disqualified the petitioner.
Besides, at the time the questioned order was issued, there was no hearing yet on the private
respondents motions for the suspension of the petitioners proclamation. In fact, in that order
the COMELEC en banc admitted that the said motions could not be resolved without hearing,
thus:chanrob1es virtual 1aw library
Pending the resolution of the petitioners Motion for Reconsideration filed on May 7, 1995;
Urgent Motion Ad Cautelam to Suspend Proclamation of Respondent (May 10, 1995) filed on
May 10, 1995; and OMNIBUS MOTION (For Reconsideration of the Honorable Commissions)
[Second Division] Resolution dated May 6, 1995, and 2nd Urgent Motion Ad Cautelam to
Suspend Proclamation of Respondent Aquino, which cannot be resolved without hearing,
without violating the right of the respondent to due process. . . .
For being void from the beginning, it is as if the order of 15 May 1995 had not existed and
could not, therefore, be made permanent by the COMELEC en banc through its resolution of 2
June 1995 whose dispositive portion reads in part:" [c]onsequently, the order of suspension of
the respondent should he obtain the winning number of votes, issued by this Commission on
15 May 1995 is now made permanent."cralaw virtua1aw library
Absent a valid finding before the election or after the canvass of election returns that the
evidence of the petitioners guilt or ineligibility is strong, the COMELEC should not have
suspended the proclamation of the petitioner. After the completion of the canvass the
petitioner should have been proclaimed.
This case then must be distinguished from that of Imelda Romualdez-Marcos v. Commission
on Elections, G.R. No. 119976, where the COMELEC en banc affirmed before the elections, or
on 7 May 1995. the Second Divisions resolution of 24 April 1995 disqualifying Mrs. Marcos.

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Accordingly, the order of 15 May 1995 and the resolution of 2 June 1995 of the COMELEC en
banc must be annulled and set aside, and the COMELEC, through its City Board of Canvassers
of Makati, must be ordered to immediately proclaim the petitioner, without prejudice to the
right of his opponents to file a petition for quo warranto with the House of Representatives
Electoral Tribunal, which is the sole judge of all contests relating to the election, returns and
qualifications of the Members of the House of Representatives (Section 17, Article VI
Constitution).
In view of the foregoing, a disquisition on the merits of the ground for the petitioners
disqualification will no longer be proper.
I vote to GRANT the instant petition, to ANNUL and SET ASIDE the challenged order and
resolution of the Commission on Elections en banc, and to DIRECT the Board of Canvassers of
Makati City to reconvene and proclaim the petitioner as the winning candidate, without
prejudice on the part of any aggrieved party to file the appropriate action in the House of
Representatives Electoral Tribunal.
Romero and Bellosillo, JJ., concur.
VITUG, J., concurring:chanrob1es virtual 1aw library
I find what I would consider as the relevant issues in this petition as similar in almost all
material respects to those obtaining in G.R. No. 119976 (Imelda Romualdez-Marcos v.
Commission on Elections and Cirilo Roy Montejo). Let me then here just reiterate what I have
there said in my separate opinion.
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up
ideals and directions and render steady our strides hence. It only looks back so as to ensure
that mistakes in the past are not repeated. A compliant transience of a constitution belittles its
basic function and weakens its goals. A constitution may well become outdated by the realities
of time. When it does, it must be changed but while it remains, we owe it respect and
allegiance. Anarchy, open or subtle, has never been , not must it never been, the answer to
perceived transitory needs, let alone societal attitudes, or the Constitution might lose its very
essence.
Constitutional provisions must be taken to be mandatory in character unless, either by express
statement or by necessary implication, a different intention is manifest (see Marcelino v. Cruz,
121- SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the
fundamental law. These provisions read:jgc:chanrobles.com.ph
"SECTION 6. No person shall be a Member of the House of Representatives unless he is a
natural-born citizen of the Philippines, and on the day of the election, is at least twenty-five
years of age, able to read and write, and, except the party-list representatives, a registered
voter in the district in which he shall be elected, and a resident thereof for a period of not less
than one year immediately preceding the day of the election."cralaw virtua1aw library

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"SECTION 17. The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its
Chairman."cralaw virtua1aw library
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and
administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2,
Constitution that, there being nothing said to the contrary, should include its authority to pass
upon the qualification prescribed by law of candidates to an elective office. Indeed, preproclamation controversies are expressly placed under the COMELECs jurisdiction to hear and
resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the observance of the constitutional one-year
residency requirement. This issue (whether or not there is here such compliance), to my mind,
is basically a question of fact or at least inextricably linked to such determination. The findings
and judgment of the COMELEC, in accordance with the long established rule and subject only
to a number of exceptions under the basic heading of "grave abuse of discretion," are not
reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain matter.
Generally, the term "residence" has a broader connotation that may mean permanent
(domicile), official (place where ones official duties may require him to stay) or temporary
(the place where he sojourns during a considerable length of time). For civil law purposes, i.e.,
as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a
natural person is the place of his habitual residence (see Article 50, Civil Code). In election
cases, the controlling rule is that heretofore announced by this Court in Romualdez v. Regional
Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:jgc:chanrobles.com.ph
"In election cases, the Court treats domicile and residence as synonymous terms, thus: (t)he
term residence as used in the election law is synonymous with domicile, which imports not
only an intention to reside in a fixed place but also presence in that place, could with conduct
indicative of such intention. Domicile denotes a fixed permanent residence to which when
absent for business or pleasure, or for like reasons, one intends to return. . . . Residence thus
acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to
acquire a new domicile by choice, there must concur (1) residence or bodily presence in the
new locality, (2) an intention to remain there, and (3) an intention to abandon the old
domicile. In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the at the
place chosen for the new domicile must be actual."cralaw virtua1aw library
Using the above tests, I am not convinced that we can charge the COMELEC with having
committed grave abuse of discretion in its assailed resolution.

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The COMELECs jurisdiction, in the case of congressional elections, ends when the jurisdiction
of the Electoral Tribunal concerned begins. It signifies that the protestee must have therefore
been duly proclaimed and has since become a member of the Senate or the House of
Representatives. The question can be asked on whether or not the proclamation of a candidate
is just a ministerial function of the Commission on Elections dictated solely on the number of
votes cast in an election exercise. I believe, it is not. A ministerial duty is an obligation the
performance of which, being adequately defined, does not allow the use of further judgment
or discretion. The COMELEC, in its particular case, is tasked with the full responsibility of
ascertaining all the facts and conditions such as may be required by law before a proclamation
is properly done.
The Court, on its parts, should, in my view at least, refrain from any undue encroachment on
the ultimate exercise of authority by the Electoral Tribunals on matters which, by no less than
a constitutional fiat, are explicitly within their exclusive domain. The nagging question, if it
were otherwise, would be the effect of the Courts peremptory pronouncement on the ability of
the Electoral Tribunal to later come up with its own judgment in a contest "relating to the
election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to this
case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg.
881, each providing thusly:chanrob1es virtual 1aw library
REPUBLIC ACT NO. 6646
"x

"SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong."cralaw virtua1aw library
BATAS PAMBANSA BLG. 881
"x

"SECTION 72. Effects of disqualification cases and priority. The Commission and the courts
shall give priority to cases of disqualification by reason of violation of this Act to the end that a
final decision shall be rendered not later than seven days before the election in which the
disqualification is sought.
"Any candidate who has been declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a
candidate is not declared by final judgment before an election to be disqualified, and he is
voted for and receives the winning number of votes in such election, his violation of the

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provisions of the preceding sections shall not prevent his proclamation and assumption to
office."cralaw virtua1aw library
I realize that in considering the significance of the law, it may be preferable to look for not so
much the specific instances they ostensibly would cover as the principle they clearly convey.
Thus, I will not scoff at the argument that it should be sound to say that votes cast in favor of
the disqualified candidate, whenever ultimately declared as such, should not be counted in his
or her favor and must accordingly be considered to be stray votes. The argument,
nevertheless, is far outweighed by the rationale of the now prevailing doctrine first enunciated
in the case of Topacio v. Paredes (23 Phil. 238 [1912]) which, although later abandoned in
Ticzon v. Comelec (103 SCRA 687 [1981]), and Santos v. COMELEC (137 SCRA 740 [1985]),
was restored, along with the interim case of Geronimo v. Ramos (136 SCRA 435 [1985]), by
the Labo (176 SCRA 1 [1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992])
and, most recently, Benito (235 SCRA 436 [1994]) rulings. Benito v. Comelec was a
unanimous decision penned by Justice Kapunan and concurred in by Chief justice Narvasa,
Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and
Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let me quote
from the first Labo decision:jgc:chanrobles.com.ph
"Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as
he obtained only the second highest number of votes in the election, he was obviously not the
choice of the people of Baguio City.
"The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA
740) decided in 1985. In that case, the candidate who placed second was proclaimed elected
after the votes for his winning rival, who was disqualified as a turncoat and considered a noncandidate, were all disregard as stray. In effect, the second placer won by default. That
decision was supported by eight members of the Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ.,
concurring.) with three dissenting (Teehankee, ActingC.J., Abad Santos and MelencioHerrera, JJ.,), and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.,) Onewason
official leave. (Fernando, C.J.)
"Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor
of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical
and democratic rule. That case, which reiterated the doctrine first announced in 1912 in
Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr.,
ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his
vote, (Makasiar, J .) another took no part, (Aquino, J .) and two others were on leave.
(Fernando, C.J. and Concepcion, Jr., J .) There the Court held:jgc:chanrobles.com.ph
". . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the

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highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle
the candidate who obtained the second highest number of votes to be declared the winner of
the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be
valid to vote the winner into office or maintain him there. However, in the absence of a statute
which clearly asserts a contrary political and legislative policy on the matter, if the votes were
cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)"
Accordingly, I am constrained to vote for the dismissal of the petition.
MENDOZA, J., dissenting:chanrob1es virtual 1aw library
For the reasons expressed in my separate opinion in the companion case, G.R. No. 119976,
Imelda Romualdez-Marcos v. Commission on Elections, I am of the opinion that the
Commission on Elections has no jurisdiction over petitions for disqualification of candidates
based on alleged ineligibility for the office to which they seek election.
The May 15, 1995 resolution of the COMELEC en banc, suspending the proclamation of
petitioner should be obtain the highest number of votes for Representative of the Second
District of Makati, Metro Manila, purports to have been issued pursuant to 6 of R.A.. No.
6646. This provision authorizes the COMELEC to order the suspension of the proclamation"
whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R. No.
119976, however, this provision refers to proceedings under 68 of the Omnibus Election
Code which provides for the disqualification of candidates found guilty of using what in political
parlance have been referred to as "guns, goons or gold" to influence the outcome of elections.
Since the disqualification of petitioner in this case was not sought on this ground, the
application of 6 of R.A. No. 6646 is clearly a grave abuse of discretion on the part of the
COMELEC.
Nor may the petition to disqualify petitioner in the COMELEC be justified under 78 of the
OEC which authorizes the filing of a petition for the cancellation of certificates of candidacy
since such a petition may be filed "exclusively on the ground that a material representation
contained [in the certificate] as required under section 74 is false." There was no allegation
that in stating in his certificate of candidacy that he is a resident of Amapola St., Palm Village,
Guadalupe Viejo, Makati, Metro Manila, petitioner made any false representation.
For this reason, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95113; that its proceedings in SPA No. 95-113, including the questioned orders, are void; and
that the qualifications of petitioner Agapito A. Aquino for the position of Representative of the
Second District of the City of Makati may only be inquired into by the House of
Representatives Electoral Tribunal.
This conclusion makes it unnecessary for me to express my view at this time on the question

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whether, in the event the candidate who obtained the highest number of votes is declared
ineligible, the one who received the next highest number of votes is declared the winner.
Accordingly, I vote (1) to grant the petition in this case and (2) to annul the proceedings of
the Commission on Elections in SPA No. 95-113, including the questioned orders, dated May 6,
1995, May 15, 1995, and the two orders both dated June 2, 1995, so far as they declare
petitioner Agapito A. Aquino to be ineligible for the position of Representative of the Second
District of the City of Makati and direct the City Board of Canvassers of Makati to determine
and proclaim the winner out of the remaining qualified candidates.
Narvasa, C.J., concurs.
FRANCISCO, J., concurring and dissenting:chanrob1es virtual 1aw library
I concur with the well written ponencia of my most esteemed colleague, Mr. Justice Kapunan. I
wish, however, to express my views on some issues raised by the petitioner, viz., (1)
jurisdiction over the disqualification suit, (2) domicile, (3) theory of legal impossibility, and (4)
"second placer rule" .
Petitioner emphatically maintains that only the House of Representatives Electoral Tribunal
(HRET) can declare his disqualification, especially after the elections. To bolster this stand, the
cases of Co v. HRET , 199 SCRA 692 (1991); Robles v. HRET , 181 SCRA 780 (1990); Lazatin
v. HRET , 168 SCRA 391 (1988); and Lachica v. Yap, 25 SCRA 140 (1968), have been cited as
supporting authorities. To my mind, this position is untenable. Section 17 of Article VI of the
1987 Constitution is clear and unambiguous that HRET jurisdiction applies only to the
members of the House of Representatives. The operative acts necessary for an electoral
candidates rightful assumption of the office for which he ran are his proclamation and his
taking an oath of office. Petitioner cannot in anyway be considered as a member of the House
of Representatives for the purpose of divesting the Commission on Elections of jurisdiction to
declare his disqualification and invoking instead HRETs jurisdiction, it indubitably appearing
that he has yet to be proclaimed, much less has he taken an oath of offices. Clearly,
petitioners reliance on the aforecited cases which when perused involved Congressional
members, is totally misplaced, if not wholly inapplicable. That the jurisdiction conferred upon
HRET, extends only to Congressional members is further established by judicial notice of HRET
Rules of Procedure, 1 and HRET decisions 2 consistently holding that the proclamation of a
winner in the contested election is the essential requisite vesting jurisdiction on the HRET.
Moreover, a perusal of the records shows that the question on COMELECs jurisdiction is now
barred by estoppel. It is to be noted that in his May 2, 1995 Answer, as well as in his
Memorandum and Supplemental Memorandum filed before the COMELECs Second Division,
petitioner never assailed COMELECs lack of jurisdiction to rule on his qualification. On the
contrary, the asked that the disqualification suit against him be dismissed on the following
grounds: that it was filed outside the reglementary period; that the one year residence
requirement of the 1987 Constitution is inapplicable due to the recent conversion of the
municipality of Makati into a city under R.A. No. 7854; that he committed a simple
inadvertence in filling up his certificate of candidacy; that the proper procedure to attack his
qualification is by a quo warranto proceeding; that he had actually and physically resided in
Makati for more than a year; and for lack of merit, the case should be outrightly dismissed. In
a hearing conducted by the COMELEC on May 2, 1995, petitioner even submitted his evidence

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(e.g. affidavits, amended certificate of candidacy, copy of the lease contract) to prove that he
is qualified for the position. Subsequently, on May 16, 1995, in response to the COMELEC En
Bancs May 15, 1995 Order suspending the proclamation of the winner, petitioner filed his
Comment/Opposition with Urgent Motion To Lift Order of Suspension of Proclamation asking
for the lifting of the COMELECs order of suspension. On May 19, 1995, petitioner again filed a
Memorandum and averred that the recent conversion of Makati into a city made the one-year
residence requirement inapplicable; that he resided in Makati for more than a year; that quo
warranto is the right remedy to question his qualification. In passing, petitioner also alleged
that the issue on his qualification should be" properly" ventilated in a full-dress hearing before
the HRET, albeit praying for the dismissal of the motion for reconsideration for utter lack of
merit (and not for lack of jurisdiction), and for lifting the suspension of his proclamation. It
was only on June 01, 1995, in his Motion to File Supplemental Memorandum and Urgent
Motion to Resolve Motion to Lift Suspension of Proclamation, when the petitioner raised
COMELECs alleged lack of jurisdiction to resolve the question on his qualification. Clearly then,
petitioner has actively participated in the proceedings both before the COMELECs Second
Division and the COMELEC En Banc asking therein affirmative reliefs. The settled rule is that a
party who objects to the jurisdiction of the court and alleges at the same time any nonjurisdictional ground for dismissing the action is deemed to have submitted himself to the
jurisdiction of the court. 3 Where a party voluntarily submits to the jurisdiction of the court
and thereafter loses on the merits, he may not thereafter be heard to say that the court had
no jurisdiction. 4 In Jimenez v. Macaraig, 5 the Court, citing Crisostomo v. Court of Appeals,
32 SCRA 54, 60 (1970), elaborated on the rationale for this doctrine in this
wise:jgc:chanrobles.com.ph
"The petitioners, to borrow the language of Mr. Justice Bautista Angelo (People v. Archilla,
G.R. No. L-15632, February 28, 1961, 1 SCRA 699, 700-701), cannot adopt a posture of
double-dealing without running afoul of the doctrine of estoppel. The principle of estoppel is in
the interest of a sound administration of the laws. It should deter those who are disposed to
trifle with the courts by taking inconsistent positions contrary to the elementary principles of
right dealing and good faith (People v. Acierto, 92 Phil. 534, 541, [1953]). 6
It is not right for a party who has affirmed and invoked the jurisdiction of a court in a
particular matter to secure an affirmative relief to afterwards deny that same jurisdiction to
escape an adverse decision. 7 Perforce, petitioners asseveration that the COMELEC has no
jurisdiction to rule on his qualification must fail.
Petitioner insists that domicile is a matter of personal intention. Thus, petitioner asserts that if
he decides to transfer his legal residence so he can qualify for public office then he is entirely
free to do so. This argument to hold water, must be supported by clear and, convincing proofs
that petitioner has effectively abandoned his former domicile and that his intention is not
doubtful. Indeed, domicile once established is considered to continue and will not be deemed
lost until a new one is established (Co v. Electoral Tribunal of the House of Representatives,
199 SCRA 692, 711 [1991]). Petitioner from childhood until his last election as senator has
consistently maintained Concepcion, Tarlac, as his domicile. He moved to Amapola Street,
Palm Village, Makati, and thereafter claimed the same to be his new domicile. This claim,
however, is dismally unsupported by the records. The lease contract entered into by petitioner
for a period of two years on the third floor condominium unit in Palm Village, Makati, in my
view, does not prove his intent to abandon his domicile of origin. The intention to establish
domicile must be an intention to remain indefinitely or permanently in the new place. 8 This

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element is lacking in this instance. Worse, public respondent Commission even found that
"respondent Aquino himself testified that his intention was really for only one (1) year because
he has other residences in Manila or in Quezon City ([citing] TSN, May 2, 1995, p. 92)." 9
Noting that petitioner is already barred from running for senator due to the constitutional
consecutive two-term limit, his search for a place where he could further and continue his
political career and sudden transfer thereto make his intent suspect. The best test of intention
to establish legal residence comes from ones acts and not by mere declarations alone. 10 To
acquire, or effect a change of domicile, the intention must be bona fide and unequivocal (28
C.J.S. 11). Petitioner, in my view, miserably failed to show a bona fide and unequivocal
intention to effect the change of his domicile.
The theory of legal impossibility is advanced to justify non-compliance with the constitutional
qualification on residency. Petitioner explains his theory in this wise:jgc:chanrobles.com.ph
". . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE
ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR
MONTHS IN THE CASE OF PETITIONERS DISTRICT IN MAKATI." 11
Apparently, this theory is an offshoot of Republic Act No. 7854, an act converting the
municipality of Makati into a highly urbanized city. This law enacted on January 2, 1995,
established a second Congressional district in Makati in which petitioner ran as a Congressional
candidate. Since the second district, according to petitioner, is barely four (4) months old then
the one (1) year residence qualification provided by the Constitution is inapplicable.
Petitioners acts, however, as borne by the records, belie his own theory. Originally, he placed
in his certificate of candidacy an entry of ten (10) months residence in Makati. Petitioner then
had it amended to one (1) year and thirteen (13) days to correct what he claims as a mere
inadvertent mistake. I doubt the sincerity of this representation. If petitioner is indeed
persuaded by his own theory, the ten months residence he initially wrote would have more
than sufficiently qualified him to run in the barely four-month old Makati district. The
amendment only reveals the true intent of petitioner to comply with the one year
constitutional requirement for residence, adding an extra thirteen (13) days for full measure.
Petitioner apparently wanted to argue one way (theory of legal impossibility), but at the same
time played it safe in the other (the constitutional one year residence requirement). And that
is not all. If we were to adhere to petitioners theory of legal impossibility, then in that district
shorn of the constitutional six months residence requirement for prospective voters (Article V,
Section 1 of the 1987 Constitution) would have certainly qualified to vote. That would have
legitimized the entry and electoral exercise of flying voters one of the historic nemeses of a
clean and honest election. Furthermore, to subscribe to petitioners contention that the
constitutional qualification of candidates should be brushed aside in view of the enactment of
R.A. No. 7854 will indubitably violate the manner and procedure for the amendment or
revision of the constitution outlined under Article XVIII of the 1987 Constitution. A legislative
enactment, it has to be emphasized, cannot render nugatory the constitution. The constitution
is superior to a statute. It is the fundamental and organic law of the land to which every
statute must conform and harmonize.
Finally, it has been contended that a second place candidate cannot be proclaimed a substitute
winner. I find the proposition quite unacceptable. A disqualified "candidate" is not a candidate

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and the votes which may have been cast in his favor are nothing but stray votes of no legal
consequence. A disqualified person like the petitioner receives no vote or zero vote. In short,
no-candidate-no vote. Petitioner had therefore no right, in fact and in law, to claim first place
for he has nothing to base his right. The legislative intent is clear as provided by R.A. 6646,
Section 6, in that votes cast for a disqualified candidate shall not be counted as they are
considered stray (Section 211, Rule 24, Omnibus Election Code). It is only from the ranks of
qualified candidates can one be chosen as placer and not from without. Necessarily, Petitioner,
a disqualified candidate, cannot be a first placer as he claims himself to be. To count the votes
for disqualified candidate would, in my view, disenfranchise voters who voted for a qualified
candidate. Legitimate votes cast for a qualified candidate should not be penalized alongside a
disqualified candidate. With this in mind, the other qualified candidate who garnered the
highest number of votes should be proclaimed the duly elected representative of the district. I
feel that the Labo doctrine ought to be abandoned.
I therefore vote to deny the petition and to lift the temporary restraining order issued by the
Court dated June 6, 1995.
Endnotes:

1. Rollo, p. 61.
2. Id., at 56-60.
3. Id., at 63.
4. Petition, Annex H; Rollo p. 65.
5. Id., Annex I; Rollo , p. 71.
6. Id., Ibid.
7. Id., Annex K, Id., at 74.
8. Id., Annex L, Id., at 75
9. Petition, annex "D" ; Rollo, p. 55.
10. Id., at 7-8 citing the completed canvass of election returns by the Board of Canvassers of
Makati City as source.
11. Id., Annex "A" ; Rollo pp. 30-31.
12. Id., Annex "B" ; Id., at 32-33.
13. Id., Annex "C" ; Id., at 48-49.
14. The petition filed on June 6, 1995 prayed for the issuance of a temporary restraining order

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to enjoin public respondents from reconvening and determining the winner out of the
remaining qualified candidates for Representative of the Second Congressional District of
Makati City. As prayed for a temporary restraining order was issued by the Court on June 6,
1995.
15. Id., at 12-14.
16. B.P. 881, Sec. 231 provides:chanrob1es virtual 1aw library
The respective Board of Canvassers shall prepare a certificate of canvass duly signed and
affixed with the imprint of the thumb of the right hand of each member, supported by a
statement of the votes received by each candidate in each polling place and, on the basis
thereof, shall proclaim as elected the candidates who obtained the highest number of votes
cast in the provinces, city, municipality or Barangay. Failure to comply with this requirement
shall constitute an election offense.
17. Rollo, p. 35.
18. CONST., Art. VI, sec. 6.
19. 199 SCRA 692 (1991).
20. Id., at 713-714.
21. MINOR, CONFLICT OF LAWS, 62.
22. 73 Phil. 453 (1941).
23. Rollo, pp. 35-36.
24. Id.
25. Id.
26. Id., at 37.
27. Id., at 34-37.
28. Resolution, p. 3.
29. Id.
30. 18 Am. Jur 211-220.
31. 176 SCRA 1 [1989].
32. 23 Phil. 238 [1912].
33. 103 SCRA. 687 [1981].

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34. 136 SCRA 435 [May 14, 1985].

35. 137 SCRA 740 [July 23, 1985].
36. 176 SCRA 1[1989].
37. 201 SCRA 253 [1991].
38. 235 SCRA 436 [1994].
39. 211 SCRA 297 [1992].
40. In England, where the election system is open and the voters known, knowledge of a
candidates ineligibility or disqualification is more easily presumed. . . and upon the
establishment of such disqualification on the part of the majority candidate, the one receiving
the next highest number of votes is declared elected. King v. Hawkins, 10 East 211; King v.
Parry, 14 Id. 549; Gosling v. Veley, 7 Q.B. 406; French v. Nolan, 2 Moak 711; Reg v. Cooks, 3
El. & BI. 249; Rex v. Monday, 2 Cowp. 530; Rex v. Foxcroft, Burr. 1017. In a few states in the
United States the settled law is directly opposite that taken by the Court in Labo and Abella,
supra. For example, in Indiana, ballots cast for an ineligible candidate are not counted for any
purpose. They cannot be counted to defeat the election of an opposing candidate by showing
that he did not receive a majority of votes cast in such election. Votes made favor of an
ineligible candidate are considered illegal, and have no effect upon the election for any
purpose. Consequently the qualified candidate having the highest number of legal votes is
regarded as entitled to offices. Price v. Baker, 41 Id., 572, See also, Gulick v. New, 14 Ind. 93
and Carson v. Mcphetridge, 15 id., 327.
PADILLA, J., concurring:chanrob1es virtual 1aw library
1. See p. 4 Annex "C", Petition; Comelec En Banc Resolution dated 2 June 1995.
FRANCISCO, J., concurring and dissenting:chanrob1es virtual 1aw library
1. Rule 16. Election Protest. A verified petition contesting the election of any Member of the
House of Representatives shall be filed by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office, within ten (10) days after the proclamation
of the winner.
Rule 17. Quo Warranto. A verified petition for quo warranto contesting the election of a
Member of the House of Representatives on the ground of ineligibility or of disloyalty to the
Republic of the Philippines shall be filed by any voter within ten (10) days after the
proclamation of the winner.
2. Puzon, v. Evangelista Cua, HRET Case No. 42, July 25, 1988, Vol. 1 HRET Reports 9; Aznar
v. Bacaltos, HRET Case No. 05, January 28, 1988, Vol. 1, HRET Reports 5; Ty Deling v.
Villarin, HRET Case No. 53, May 2, 1950.
3. Wang Laboratories, Inc. v. Mendoza, 156 SCRA 44, 53-54 (1987).

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4. La Campana Food Products Inc. v. Court of Appeals, 223 SCRA 152, 157 (1993).
5. 219 SCRA 230 (1993).
6. Id., at 239.
7. Tijam v. Sibonghanoy, 23 SCRA 29, 35-36 (1968).
8. 28 C.J.S. 11.
9. Resolution, SPA No. 95-113, June 2, 1995, p. 4.
10. Tanseco v. Arteche, 57 Phil. 227, 235 91932).
11. Petition, June 5, 1995, p. 20.

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EN BANC
[G.R. No. 150469. May 30, 2002.]
MAYOR JUN RASCAL CAWASA, COUNCILORS MAASIRAL DAMPA, H. ACKIL
MAMANTUC, MOMOLAWAN MACALI, ANDAR TALI, ALLAN SANAYON, and AMIN
SANGARAN, Petitioners, v. THE COMMISSION ON ELECTIONS and ABDULMALIK M.
MANAMPARAN, Respondents.
DECISION
CARPIO, J.:
The Case
Before us is a Petition for Certiorari with prayer for the issuance of a writ of preliminary
injunction and a temporary restraining order under Rule 64 of the 1997 Rules of Civil
Procedure 1 assailing the Resolution of the Commission on Elections ("Comelec" for brevity) en
banc 2 in SPC No. 01-276 dated October 24, 2001, the dispositive portion of which
reads:jgc:chanrobles.com.ph
"WHEREFORE, premises considered, the instant petition is hereby GRANTED. The results of
special elections held on 30 May 2001 covering Precincts Nos. 2A 2A1/2A2 in Barangay
Bangko, Precinct No. 3A in Barangay Cabasaran and clustered Precinct No. 10A/10A1 in
Barangay Liangan are hereby ANNULLED.
Accordingly, the proclamation of all winning candidates insofar as the results in the four (4)
contested precincts affect the standing of candidates is hereby SET ASIDE until the choice of
the people is finally determined through another special election to be authorized, conducted
and supervised by this Commission as soon as possible unless restrained.
Finally, the Law Department is hereby directed to investigate the election irregularities that
transpired in the Municipality of Nunungan, Lanao del Norte involving the Office of the Election
Officer and thereafter, file election offense case/s should there be finding of probable cause
and other appropriate cases if warranted under the circumstances.
Page 370 of 492

SO ORDERED." 3
The Facts
During the May 14, 2001 elections, petitioner Jun Rascal Cawasa ("petitioner Cawasa" for
brevity) and private respondent Adbulmalik M. Manamparan ("private respondent
Manamparan" for brevity) were among the candidates for mayor in the Municipality of
Nunungan, Lanao del Norte ("Nunungan" for brevity). Out of the forty (40) precincts in
Nunungan, only thirty-six (36) functioned, as there was a failure of election in the remaining
four (4) precincts. The following were the precincts, barangays, polling places and number of
registered voters where there was a failure of election:chanrob1es virtual 1aw library
PRECINCT NO. BARANGAY POLLING PLACE REG. VOTERS
2A Bangko Bangko Prim School 200
2A1 /2A2 Bangko -do- 254
3A Cabasaran Cabasaran Prim. Sch. 155
10A/10A1 Liangan Liangan Prim. Sch. 236
_____
Total 845
After canvassing the election returns from the 36 precincts, the Municipal Board of Canvassers
of Nunungan deferred the proclamation of all winning candidates due to the failure of the said
4 precincts to function. Special elections were set on May 30, 2001 considering that the
number of registered voters in the remaining four precincts would affect the election results.
The Comelec promulgated Resolution No. 4360 on May 21, 2001 authorizing the conduct of
special elections in the affected areas, including barangays Bangko, Cabasaran and Liangan in
Nunungan, the pertinent portion of which states:jgc:chanrobles.com.ph
"VII. Memorandum of Commissioner Mehol K. Sadain dated 19 May 2001.
REGION MUNICIPALITY/PROVINCE
Region XII Nunu(n)gan, Lanao del Norte
Barangays:chanrob1es virtual 1aw library
1. Bangco
2. Cabasaran
3. Liangan

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REASONS : disagreement of venue of election,

tension of BEIs, forcible taking of the ballot boxes
and other election paraphernalia.
Scheduled date: May 30, 2001
x

In view of the foregoing the Commission RESOLVED, as it hereby RESOLVED, as

follows:chanrob1es virtual 1aw library
1. To schedule the special elections in the foregoing areas on May 26 and 30, 2001 as herein
specified;
x

Let the Executive Director, Deputy Executive Directors for Operations and all the working
Committees implement this resolution.
SO ORDERED." 4
As scheduled, the special elections covering the 4 precincts were conducted on May 30, 2001.
The special elections for Precincts Nos. 2A, 2A1/2A2 of Barangay Bangko were conducted in
the Municipality of Sultan Naga Dimaporo, Lanao del Norte. The special elections for Precinct
No. 3A of Barangay Cabasara and Precinct Nos. 10A/10A1 of Barangay Liangan were
conducted in the Municipality of Sapad, Lanao del Norte.
The Municipal Board of Canvassers of Nunungan canvassed the election returns of the 4
precincts on May 31, 2001. After the canvassing of the election returns, the Municipal Board of
Canvassers proclaimed the winning candidates on the basis of the earlier 36 election returns of
the May 14, 2001 regular elections and the 4 election returns of the 4 precincts subject of the
special elections.
The May 14, 2001 regular elections and the May 30, 2001 special elections show the following
results with respect to the position of mayor:chanrob1es virtual 1aw library
Sub-Total of Votes Sub-Total of votes Grand
Obtained May 14, 2001 Obtained May 30, Total
Regular Elections 2001 Special Elections
Private Respondent Manamparan 1,197 570 1,767

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Petitioner Cawasa 1,283 187 1,470

_____
Margin ..... 297
As shown above, during the May 14, 2001 regular elections, the lead of petitioner Cawasa was
eighty six (86). After the May 30, 2001 special elections, private respondent Manamparan
overcame the margin with a lead of 297 votes.
Petitioner Cawasa was proclaimed mayor of Nunungan and his co-petitioners Maasiral Dampa,
H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon and Amin Sangaran were
also proclaimed as councilors of Nunungan.
On June 4, 2001, private respondent Manamparan filed an appeal and petition to annul the
proclamation of petitioner Cawasa docketed as SPC No. 01-252. The appeal/petition was
dismissed by the Comelec Second Division on September 26, 2001.
In the meantime, on June 8, 2001, private respondent Manamparan filed a petition for
"Annulment of Election Results during the May 30, 2001 Special Elections in Precincts No. 2A,
2A1/2A2, 3A, and 10A/10A1 of Nunungan, Lanao Del Norte, and Annulment of Canvass and
Proclamation with Prayer for Issuance of Temporary Restraining Order and/or Writ of
Preliminary Injunction" docketed as SPC Case No. 01-276. Impleaded as respondents were
petitioner Cawasa and the Municipal Board of Canvassers composed of Mario Allan Ballesta, 5
Nedalyn S. Sebial 6 and Iluminada O. Pegalan. 7
As mentioned at the outset, on October 24, 2001, the Comelec en banc promulgated a
resolution annulling the results of the special elections of the 4 precincts (Precinct Nos. 2A,
2A1/2A2, 3A, 10A/10A1) held on May 30, 2001 conducted in the municipalities of Sultan Naga
Dimaporo and Sapad. The Comelec en banc also annulled the proclamation of all winning
candidates insofar as the results in the 4 contested precincts affect the standing of candidates.
The Comelec Ruling
In granting the petition, the Comelec held that "the special elections in the 4 contested
precincts were not genuinely held and resulted in failure to elect on account of fraud." The
Comelecs ruling is summarized as follows:chanrob1es virtual 1aw library
First. The Comelec clarified that the Comelec en banc can take cognizance of the petition for
annulment of election results in accordance with Section 4 of RA 7166, 8 otherwise known as
the "Synchronized Elections Law of 1991." It explained that while the proclamation of a
candidate has the effect of terminating pre-proclamation issues, a proclamation that is a result
of an illegal act is void and cannot be ratified by such proclamation and subsequent
assumption of office. The Comelec declared that there is no forum-shopping considering that
SPC 01-252 pending before the Second Division of the Comelec is a pre-proclamation
controversy, 9 while SPC 01-276 pending before the Comelec en banc is a case for annulment
of election results.
Second. The Comelec found that the special elections were not held in the designated polling

Page 373 of 492

places in Nunungan but were transferred to the municipalities of Sapad and Sultan Naga
Dimaporo without any authority from the Comelec. According to the Comelec, the Election
Officer, who happened to be the chairman of the Municipal Board of Canvassers, caused the
transfer of the polling places without asking permission from the Comelec. The transfer was
likewise in violation of the due process requirements found in Section 153 of the Omnibus
Election Code. Moreover, it ruled that the unauthorized transfer of a polling place is also
punishable as an election offense under Section 261 (z) (17) of the Same Code. We quote the
pertinent portion of the Comelec ruling thus:jgc:chanrobles.com.ph
"The transfer of polling places cannot be done without due process. This is the explicit rule of
Section 153 of the Omnibus Election Code, . . .
x

In the instant case, the Election Officer, who happened to be the Chairman of the respondent
Board, also caused the transfer of the polling places without asking the permission of this
Commission and in violation of the due process rule, thereby, making the aforequoted Section
153 inutile.
Considering these unwarranted acts of the official of this Commission, the sanctity of the
special elections therefore is suspect. Nothing in the records could show that notice was given
to the political candidates and to the registered voters affected by the special elections of the
said transfer of polling places. Who therefore voted on the assailed special elections given
these circumstances? This issue has never been squarely addressed by the respondents.
We take judicial notice of the distance of the venues of voting which are more or less 25
kilometers away from Nunungan, far from being accessible to the voters given the time and
material constraints. The panorama of what is supposed to be a free and honest exercise of
democracy is indeed rendered myopic by fraud perpetrated by no other than the COMELEC
officials concerned." 10
Third. The Comelec found that the Municipal Board of Canvassers, headed by Mario Allan
Ballesta, preposterously feigned ignorance of the fact that during the said special elections,
members of the Philippine Army 26th Infantry Battalion served as election inspectors without
authority from the Comelec.
Hence, the instant petition.
The Issues
Petitioners argue that the COMELEC en banc Resolution was issued without jurisdiction and/or
with grave abuse of discretion amounting to lack of jurisdiction for the following
reasons:jgc:chanrobles.com.ph
"1. The proclamation of the six (6) petitioners Maasiral Dampa, H. Ackil Mamantuc,
Momolawan Macali, Andar Tali, Allan Sanayon, and Amin Sangaran were annulled and set
aside in violation of due process of law. They were not impleaded as respondents in the

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petition to annul the election. They were not notified of the proceedings . . .
2. The transfer of the venue of the special elections at Sultan Naga Dimaporo and Sapad and
the appointment of military personnel as members of the Board of Election Inspectors of the
four (4) precincts were agreed upon by the private respondent and the municipal candidates
and their respective political parties.
3. The election officer in the exercise of his discretion has authority to transfer the venue of
the special elections in view of the agreement of the political parties and municipal candidates
on the transfer of the venue of the special elections . . .
4. There is substantial compliance with the provisions of Sec. 153 of the Omnibus Election
Code. The political parties and municipal candidates of the municipality Nunungan were
notified and in fact agreed to the transfer of venue of the special elections.
5. The COMELEC en banc promulgated the October 24, 2001 resolution without requiring its
election officer of Nunungan, the provincial election supervisor of Lanao del Norte, and
Regional Election Director of Region XII to explain why the special elections of the four (4)
precincts were transferred to the municipalities of Sultan Naga Dimaporo and Sapad. The
petitioner Mayor Jun Rascal Cawasa prayed that the case be set for trial and hearing in order
that the election officer of Nunungan be required to testify and explain the circumstances of
the special elections. The COMELEC en banc did not act on the motion. It promulgated the
resolution of October 24, 2001 without investigating the circumstances why the election officer
transferred the venue of the special elections to the municipalities of Sultan Naga Dimaporo
and Sapad. No hearing was conducted by the COMELEC en banc." 11
Simply put, the issues raised boil down to whether or not: (1) the transfer of the polling places
to the adjacent municipalities is legal; (2) the appointment of military personnel as members
of the board of election inspectors is legal; and (3) the petitioners were accorded due process
prior to the promulgation of the assailed resolution in SPC No. 01-276.
The Courts Ruling
The petition is bereft of merit.
First Issue: Legality of the Transfer of Polling Places and Appointment of Military Personnel as
Members of the Board of Election Inspectors
There is no dispute that the venue of the special elections was transferred to the adjacent
municipalities of Sultan Naga Dimaporo and Sapad in lieu of the regular polling places located
in barangays Bangko, Cabasaran and Liangan. There is likewise no dispute that military
personnel were appointed as members of the Board of Election Inspectors ("BEI" for brevity)
in the 4 precincts. Petitioners and private respondent Manamparan agree that the 4 precincts
covered by the special elections with a total of 845 registered voters will affect the result of
the elections.
Petitioners insist on the validity of the conduct of the special elections claiming that the
political parties and the municipal candidates were notified and in fact agreed on the transfer

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of venue and the appointment of military personnel as members of the BEI. They contend that
there is substantial compliance with the provisions of Section 153 of the Omnibus Election
Code considering that the election officer as the representative of the Comelec reported the
matter to the Provincial Election Supervisor of Lanao del Norte and the transfer was not
disapproved by the Comelec. Petitioners claim that an "election officer has authority to
transfer the polling places even four days before the scheduled election" citing Balindong v.
Comelec 12 and Alonto v. Comelec. 13
Petitioners fail to persuade. Sections 152, 153 and 154 of the Omnibus Election Code shed
light on this matter, to wit:chanrob1es virtual 1aw library
SEC. 152. Polling Place. A polling place is the building or place where the board of election
inspectors conducts its proceedings and where the voters shall cast their votes.
SEC. 153. Designation of polling places. The location of polling places designated in the
preceding regular election shall continue with such changes as the Commission may find
necessary, after notice to registered political parties and candidates in the political unit
affected, if any, and hearing: provided, That no location shall be changed within forty-five
days before a regular election and thirty days before a special election or a referendum or
plebiscite, except in case it is destroyed or it cannot be used.
SEC. 154. Requirements for polling places. Each polling place shall be, as far as practicable,
a ground floor and shall be of sufficient size to admit and comfortably accommodate forty
voters at one time outside the guard rail for the board of election inspectors. The polling place
shall be located within the territory of the precinct as centrally as possible with respect to the
residence of the voters therein and whenever possible, such location shall be along a public
road. No designation of polling places shall be changed except upon written petition of the
majority of the voters of the precinct or agreement of all the political parties or by resolution
of the Commission upon prior notice and hearing.
A public building having the requirements prescribed in the preceding paragraph shall be
preferred as polling place. 14
The transfer was made not only in blatant disregard of Comelec Resolution No. 4360 issued on
May 21, 2001 specifying the polling places but also Sections 153 and 154 of the Election Code.
As clearly provided by the law, the location of polling places shall be the same as that of the
preceding regular election. However, changes may be initiated by written petition of the
majority of the voters of the precinct or agreement of all the political parties or by resolution
of the Comelec after notice and hearing. But ultimately, it is the Comelec which determines
whether a change is necessary after notice and hearing.
The Comelec has unequivocally stated that "nothing in the records showed that notice was
given to the political candidates and registered voters affected by the transfer." Private
respondent Manamparan has categorically denied petitioners claim that all the political parties
and municipal candidates agreed to the transfer of venue. The Court discerns no
substantiation of petitioners claim regarding the agreement to transfer. There is then no
cogent reason for us to disturb the findings of the Comelec on this matter. Indeed, the factual
findings of the Comelec supported by substantial evidence shall be final and non-reviewable.
15 Thus, it has been held that findings of fact of the Comelec based on its own assessments

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and duly supported by evidence, are conclusive upon this Court, more so, in the absence of a
substantiated attack on the validity of the same. 16 Moreover, there is no question that the
transfer of venue was made within the prohibited period of thirty days before the special
election.
Reliance on Balindong v. Comelec 17 and Alonto v. Comelec 18 is misplaced. Alonto involved
an entirely different factual scenario from the instant case. In said case, the Court upheld the
validity of the transfer of the counting and tallying of the votes after the closing of the polls
from the precincts to the PC camps. The Court held that the transfer was dictated by necessity
and authorized by the Comelec directly or by its provincial representative. The Court explained
that "while it is highly desirable that the authority for the transfer of the counting should be
directly authorized by the Comelec itself, the latters denial of the petitioners motion for
reconsideration where this legal point was advanced was tantamount to a validation of the
authority issued by its provincial representatives."cralaw virtua1aw library
On the other hand, the Court in Balindong 19 held that the mere fact that the transfer of
polling place was not made in accordance with law, particularly Secs. 152-154 of the Omnibus
Election Code, does not warrant a declaration of failure of election and the annulment of the
proclamation of the winning candidate, because the number of uncast votes will not affect the
result of the election. In the case at bar, there is no dispute that the election returns from the
45 precincts will affect the results of the elections.
Next, the appointment of military personnel as members of the BEI is another grave electoral
irregularity that attended the special elections held on May 30, 2001. There was absolutely no
legal basis for the appointment of military personnel as members of the BEI. Verily, the
appointments were devoid of any justification other than the bare assertion, again, that "the
political parties and municipal candidates agreed on the said arrangement." The pertinent
provisions of the Omnibus Election Code regarding the composition, appointments and
substitution of the members of the BEI are quoted as follows:chanrob1es virtual 1aw library
SEC. 164. Composition and appointments of board of election inspectors. At least thirty
days before the date when the voters list is to be prepared in accordance with this Code, in
the case of a regular election or fifteen days before a special election, the Commission shall,
directly or through its duly authorized representatives, constitute a board of election
inspectors for each precinct to be composed of a chairman and a poll clerk who must be public
school teachers, priority to be given to civil service eligibles, and two members, each
representing the two accredited political parties. The appointment shall state the precinct to
which they are assigned and the date of the appointment.
SEC. 165. Oath of the members of the board of election inspectors. The members of the
board of election inspectors, whether permanent, substitute or temporary, shall before
assuming their office, take and sign an oath upon forms prepared by the Commission, before
an officer authorized to administer oaths or, in his absence, before any other member of the
board of election inspectors present, or in case no one is present, they shall take it before any
voter. The oaths shall be sent immediately to the city or municipal treasurer. (Sec. 157, 1971
EC)
SEC. 166. Qualification of members of the board of election inspectors. No person shall be
appointed chairman, member or substitute member of the board of election inspectors unless

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he is of good moral character and irreproachable reputation, a registered voter of the city or
municipality, has never been convicted of any election offense or of any other crime
punishable by more than six months of imprisonment, or if he has pending against him an
information for any election offense. He must be able to speak and write English or the local
dialect. (Sec. 114, 1978 EC)chanrob1es virtua1 1aw 1ibrary
x

SEC. 170. Relief and substitution of members of the board of election inspectors. Public
school teachers who are members of the board of election inspectors shall not be relieved nor
disqualified from acting as such members, except for cause and after due hearing.
x

Section 13 of Republic Act No. 6646 20 modified Section 164 of the Omnibus Election Code.
Said section reads:chanrob1es virtual 1aw library
SEC. 13. Board of Election Inspectors. The board of election inspectors to be constituted by
the Commission under Section 164 of Batas Pambansa Blg. 881 shall be composed of a
chairman and two (2) members, one of whom shall be designated as poll clerk, all of whom
shall be public school teachers, giving preference to those with permanent appointments. In
case there are not enough public school teachers, teachers in private schools, employees in
the civil service, or other citizens of known probity and competence who are registered voters
of the city or municipality may be appointed for election duty.
Clearly, the BEI shall be composed of a chairman and two members, all of whom are public
school teachers. If there are not enough public school teachers, teachers in private schools,
employees in the civil service or other citizens of known probity and competence may be
appointed. It was highly irregular to replace the duly constituted members of the BEI, who
were public school teachers. Nothing in petitioners pleadings would even suggest that the
substitution was made for cause and after hearing. The importance of the constitution of the
BEI to the conduct of free, honest and orderly elections cannot be overemphasized. The Court
has held that, "the members of the board of election inspectors are the front line election
officers. They perform such duties and discharge such responsibilities that make them, in a
real sense, foot soldiers who see to it that elections are free, honest and orderly. They are
essential to the holding of elections." 21
Second Issue: Denial of Due Process
Petitioners claim that there was a clear violation of due process of law because a hearing was
not conducted on the circumstances of the special election. Petitioners further claim that the
Comelec rendered the assailed resolution without requiring its field officers, specifically, the
election officer, provincial election supervisor and the regional election director to explain the
transfer of the polling places. Lastly, petitioners point out that none of the eight (8)
proclaimed members of the Sangguniang Bayan 22 of Nunungan, Lanao del Norte and the
proclaimed Vice Mayor were notified and impleaded as respondents in the petition to annul the
election results citing Velayo v. Commission on Elections. 23

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Section 4 of Republic Act No. 7166 or "The Synchronized Elections Law of 1991" provides that
the Comelec sitting en banc by a majority vote of its members may decide, among others, the
declaration of failure of election and the calling of special elections as provided in Section 6 of
the Omnibus Election Code. Said Section 6, in turn, provides as follows:jgc:chanrobles.com.ph
"SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or
other analogous causes the election in any polling place has not been held on the date fixed,
or had been suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in any of such cases
the failure or suspension of election would affect the result of the election, the Commission
shall, on the basis of a verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not held, suspended or which
resulted in a failure to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or failure to
elect."cralaw virtua1aw library
A prayer to annul election results, as in the instant case, and a prayer to declare failure of
elections based on allegations of fraud, terrorism, violence or analogous causes, are actually
of the same nature and the Election Code denominates them similarly. 24 The Comelec may
exercise the power to annul election results or declare a failure of election motu proprio 25 or
upon a verified petition. 26 The hearing of the case shall be summary in nature. 27 A formal
trial-type hearing is not at all times and in all instances essential to due process it is enough
that the parties are given a fair and reasonable opportunity to explain their respective sides of
the controversy and to present evidence on which a fair decision can be based. 28 In fine, a
trial is not at all indispensable to satisfy the demands of due process.chanrob1es virtua1 1aw
1ibrary
The petition was heard by the Comelec en banc on June 27, 2001. During the said hearing,
the Comelec directed the parties, as agreed upon, to submit their respective memoranda
within five (5) days from date and after which, the case shall be submitted for resolution.
Petitioners were duly heard through their pleadings, thus, there is no denial of procedural due
process to speak of. Moreover, contrary to the claim of petitioners, the Municipal Board of
Canvassers of Nunungan, including Election Officer Ballesta, were summoned to the hearing
held on June 27, 2001 and furnished a copy of the petition.
The pre-conditions for declaring a failure of election are: (1) that no voting has been held in
any precinct or precincts because of force majeure, violence, terrorism, fraud or other
analogous causes and (2) that the votes not cast therein are sufficient to affect the results of
the elections. The concurrence of these two circumstances justifies the calling of special
elections. 29 Here, the Comelec found that the special elections were vitiated by fraud due to
the illegal transfer of the polling places and the appointment of military personnel as members
of the BEI. Inevitably, the Comelec could not ascertain who voted during the special elections.
The circumstances were such that the entire electoral process was not worthy of faith and
credit, hence, in practical effect no election was held. 30
In Velayo v. Commission of Elections, 31 the Court held that "the non-inclusion of a

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proclaimed winner as respondent in a pre-proclamation controversy and his lack of notice of

the proceedings in the Comelec which resulted in the cancellation of his proclamation
constitute clear denial of due process." In the Velayo case, the proclaimed mayor and the
members of the Municipal Board of Canvassers were not impleaded in the pre-proclamation
cases brought before the Comelec. However, in this case, petitioner Cawasa and the members
of the Municipal Board of Canvassers were in fact impleaded, notified and even heard by the
Comelec in SPC No. 01-276. At this late stage, public interest in the speedy disposition of this
case will only be further derailed by the re-opening of the case for the benefit of petitionerscouncilors who did not advance any new and substantial matters in this petition warranting the
declaration that the special elections were valid and untainted by fraud.
WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of public respondent Commission on Elections, the instant petition is hereby
DISMISSED. The resolution of the Commission on Elections en banc in SPC No. 01-276 dated
October 24, 2001 is hereby AFFIRMED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago,
De Leon, Jr., Sandoval-Gutierrez, Austria-Martinez and Corona, JJ., concur.
Davide, Jr., C.J., on official leave.
Endnotes:

1. Since the instant petition is grounded on grave abuse of discretion on the part of the
Comelec, the same is considered as a Petition for Certiorari under Rule 65 of the Rules of
Court pursuant to Section 2 of Rule 64.
2. Composed of Alfredo L. Benipayo as Chairman with Luzviminda G. Tancangco, Rufino SB.
Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z. Borra, Florentino A. Tuason, Jr, as
Commissioners.
3. Rollo, p. 45.
4. Rollo, pp. 50-51.
5. Chairman and acting Election Officer.
6. Vice Chairman and acting Municipal Treasurer.
7. Member and District Supervisor.chanrob1es virtua1 1aw 1ibrary
8. Sec. 4. Postponement, Failure of Election and Special Elections. The postponement,
declaration of failure of election and the calling of special elections as provided in Sections 5, 6
and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a
majority of votes of its members. The causes for the declaration of a failure of election may
occur before or after the casting of votes or on the day of the election.

Page 380 of 492

9. As mentioned earlier, this case was dismissed on September 26, 2001.

10. Rollo, p. 43, Emphasis supplied.
11. Rollo, pp. 20-22.
12. 260 SCRA 494 (1996).
13. 22 SCRA 878 (1968).
14. Emphasis supplied.
15. See Section 5, Rule 64, 1997 Rules of Civil Procedure.
16. Mohammad v. Commission on Elections, 320 SCRA 258 (1999).
17. Supra, see note 12.
18. Supra, see note 13.
19. Supra.
20. An Act Introducing Additional Reforms in the Electoral System and For Other Purposes.
21. Sumulong v. Comelec, 70 Phil. 703 (1940).
22. Including herein petitioners Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali,
Andar Tali, Allan Sanayon and Amin Sangaran.
23. 327 SCRA 713 (2000).
24. Banaga, Jr. v. Commission on Elections, 336 SCRA 701 (2000).
25. Section 3, Rule 26, The 1993 Comelec Rules of Procedure.
26. Ibid., Section 4.
27. Ibid., Section 6.
28. Melendres, Jr. v. Commission on Elections, 319 SCRA 262 (2000).
29. Hassan v. Commission on Elections, 264 SCRA 125 (1996).
30. Sanchez v. Comelec, 114 SCRA 454 (1982).
31. Supra.

Page 381 of 492

EN BANC
[G.R. No. L-12596. July 31, 1958.]
JOSE L. GUEVARA, Petitioner, v. THE COMMISSION ON ELECTIONS, Respondent.
Enrique M. Fernando for Petitioner.
Dominador D. Dayot for Respondent.
SYLLABUS
1. COMMISSION ON ELECTIONS; JURISDICTION AND POWER TO PUNISH FOR CONTEMPT.
Under section 2, Article X of the Constitution and section 5 of the Revised Election Code, the
Commission on Elections not only has the duty to enforce and administer all laws relative to
the conduct of elections but the power to try, hear and decide any controversy that may be
submitted to it in connection with the elections. And as an incident of this power, it may also
punish for contempt in those cases provided for in Rule 64 of the Rules of Court under the
same procedure and with the same penalties provided therein. In this sense, the Commission,
although it cannot be classified as a court of justice within the meaning of the Constitution
(section 13, Art. VIII) for it is merely an independent administrative body (The Nacionalista
Party v. Vera, 85 Phil., 126), may however exercise quasi-judicial functions in so far as
controversies that by express provision of the law come under its jurisdiction. As to what
questions may come within this category, neither the Constitution nor the Revised Election
Code specifies. The former merely provides that it shall come under its jurisdiction, saving
those involving the right to vote, all administrative questions affecting elections, including the
determination of the number and location of polling places, and the appointment of election
inspectors and other election officials, while the latter is silent as to what questions may be
brought before it for determination. But it is clear that, to come under its jurisdiction, the
questions should be controversial in nature and must refer to the enforcement and
administration of all laws relative to the conduct of elections.
2. ID.; ID.; ON MINISTERIAL ACT; NEWSPAPER COMMENTS ON REQUISITION FOR BALLOT
BOXES. The requisitioning and preparation of the necessary ballot boxes to be used in the
elections is an imperative ministerial duty of the Commission on Elections performed in its
administrative capacity in relation to the conduct of election ordained by our Constitution. In
proceeding on this matter, it only dicharges a ministerial duty; it does not exercise any judicial
functions. Such being the case, it can not exercise the power to punish for contempt as
Page 382 of 492

postulated in the law, for such power is inherently Judicial in nature.

3. ID.; ID.; POWER TO PUNISH FOR CONTEMPT IS INHERENTLY JUDICIAL; EXEMPTION.
"The power to punish for contempt is inherent in all courts; its existence is essential to the
preservation of order in judicial proceedings, and to the enforcement of judgments, orders and
mandates of Courts, and, consequently, in the administration of justice" (Slade Perkins v.
Director of Prisons, 58 Phil., 271; U. S. v. Loo Koe, 36 Phil., 867; In re Sotto 46 Off. Gaz.,
2570; In re Kelly, 35 Phil, 944). The exercise of this power has always been regarded as a
necessary incident and attribute of courts (Slade Perkins v. Director of Prisons, Ibid.) Its
exercise by administrative bodies has been invariably limited to making effective the power to
elicit testimony (People v. Swena, 296 p. 271), and the exercise of that power by an
administrative body in furtherance of its administrative function has been held invalid
(Langenberg v. Decker, 31 N. E. 190; In re Sims, 37 Phil., 135; Roberts v. Hacney, 58 S.W.
180).
DECISION
BAUTISTA ANGELO, J.:
Petitioner was ordered by the Commissioner on Elections to show cause why he should not be
punished for contempt for having published in the Sunday Times issue of June 2, 1957 an
article entitled "Ballot Boxes Contract Hit", which tended to interfere with and influence the
Commission on Elections and its members in the adjudication of a controversy then pending
investigation and determination before said body "arising from the third petition for
reconsideration of May 20, 1957 and the supplementary petition thereof of June 1, 1957 filed
by Acme Steel Mfg. Co., Inc., praying for reconsideration of the resolutions of the Commission
of May 4 and 13, 1957, awarding the contracts for the manufacture and supply of 34,000
ballot boxes to the National Shipyards & Steel Corporation and the Asiatic Steel Mfg. Co., Inc.
and the respective answers of the latter two corporations to said petitions; and which article
likewise tended to degrade, bring into disrepute, and undermine the exclusive constitutional
function of this Commission and its Chairman Domingo Imperial and Member Sixto Brillantes
in the administration of all the laws relative to the conduct of elections."cralaw virtua1aw
library
Petitioner, answering the summons issued to him by the Commission, appeared and filed a
motion to quash on the following grounds:jgc:chanrobles.com.ph
"a) The Commission has no jurisdiction to punish as contempt the publication of the alleged
contemptuous article, as neither in the Constitution nor in statutes is the Commission granted
a power to so punish the same, for should Section 5 of Republic Act No. 180, vesting the
Commission with power to punish contempts provided for in Rule 64 of the Rules of Court
under the same procedure and with the same penalties provided therein, be applied to the
case at hand, said provision would be unconstitutional.
"b) Assuming that the Commissions power to punish contempt exists, the same cannot be
applied to the instant case, where the Commission is exercising a purely administrative

Page 383 of 492

function of purchasing ballot boxes.

"c) Assuming that the Commissions power to punish contempt exists, said power cannot apply
to the present case because the matter of purchasing the ballot boxes was already a closed
case when the article in question was published.
"d) Assuming that controversy contemplated by the law was still pending, the article in
question was a fair report because it could be assumed that the news report of the respondent
was based on the motion for reconsideration filed by the Acme Steel where there was an
allegation of fraud, etc."cralaw virtua1aw library
The Commission, after hearing, denied the motion to quash but granted petitioner a period of
fifteen (15) days within which to elevate the matter to the Supreme Court in view of the issue
raised which assails the jurisdiction of the Commission to investigate and punish petitioner for
contempt in connection with the alleged publication. Hence the present petition for prohibition
with preliminary injunction.
The facts which gave rise to the present contemptuous incident are: The Commission on
Elections, on May 4, 1957, after proper negotiations, awarded to the National Shipyards &
Steel Corporation (NASSCO), the Acme Steel Mfg. Co., Inc. (ACME), and the Asiatic Steel Mfg.
Co., Inc. (ASIATIC), the contracts to manufacture and supply the Commission 12,000, 11,000
and 11,000 ballot boxes at P17.64, P14.00 and P17.00 each, respectively. On May 8, 1957,
both the NASSCO and the ASIATIC signed with the Commission on Elections the corresponding
contracts thereon. On May 13, 1957, the Commission cancelled the award to the ACME for
failure of the latter to sign the contract within the designated time and awarded to the
NASSCO and the ASIATIC, one-half each, the 11,000 ballot boxes originally alloted to the
ACME. The corresponding contracts thereon were signed on May 16, 1957.
Then followed a series of petitions filed by the ACME for the reconsideration of the resolution
of the Commission of May 13, 1957. The first of these petitions was filed on May 14, 1957
which, after hearing, was denied by the Commission in its resolution of May 16, 1957. The
second petition was filed on May 16, 1957 and was denied on May 17, 1957. The third petition
was filed on May 20, 1957, and because of the seriousness of the grounds alleged therein for
the annulment of its previous resolutions, the Commission resolved to conduct a formal
investigation on the matter ordering the NASSCO and the ASIATIC to file their respective
answers. Thereafter, after these corporations had filed their answers, the Commission held a
formal hearing thereon on May 24, 1957. On May 28, 1957, the ACME filed a memorandum on
the points adduced during the hearing, and on June 4, 1957, the Commission issued its
resolution denying the third motion for reconsideration. The article signed by petitioner was
published in the June 2, 1957 issue of the Sunday Times, a newspaper of nationwide
circulation.
The question to be determined is whether the Commission on Elections has the power and
jurisdiction to conduct contempt proceedings against petitioner with a view to imposing upon
him the necessary disciplinary penalty in connection with the publication of an article in the
Sunday Times issue of June 2, 1957 which, according to the charge, tended to interfere with
and influence said Commission in the adjudication of a controversy then pending
determination and to degrade and undermine the function of the Commission and its members
in the administration of all laws relative to the conduct of elections.

Page 384 of 492

The Commission on Elections is an independent administrative body which was established by

our Constitution to take charge of the enforcement of all laws relative to the conduct of
elections and devise means and methods that will insure the accomplishment of free, orderly,
and honest elections (Sumulong v. Commission on Elections, 73 Phil., 288; Nacionalista Party
v. The Solicitor General, 85 Phil., 101; 47 Off. Gaz. 2356). Its powers are defined in the
Constitution. It provides that it "shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections and shall exercise all other
functions which may be conferred upon it by law. It shall decide, save those involving the right
to vote, all administrative questions, affecting elections, including the determination of the
number and location of polling places, and the appointment of election inspectors and of other
election officials" (Section 2, Article X). The Revised Election Code supplements what other
powers may be exercised by said Commission. Among these powers are those embodied in
Section 5 thereof which, for ready reference, we quote:jgc:chanrobles.com.ph
"SEC. 5. Powers of Commission. The Commission on Elections or any of the members
thereof shall have the power to summon the parties to a controversy pending before it, issue
subpoenas and subpoenas duces tecum and otherwise take testimony in any investigation or
hearing pending before it, and delegate such power to any officer. Any controversy submitted
to the Commission on Elections shall be tried, heard and decided by it within fifteen days
counted from the time the corresponding petition giving rise to said controversy is filed. The
Commission or any of the members thereof shall have the power to punish contempts
provided for in rule sixty-four of the Rules of Court, under the same procedure and with the
same penalties provided therein.
"Any violation of any final and executory decision, order or ruling of the Commission shall
constitute contempt of the Commission.
"Any decision, order or ruling of the Commission on Elections may be reviewed by the
Supreme Court by writ of certiorari in accordance with the Rules of Court or with such rules as
may be promulgated by the Supreme Court."cralaw virtua1aw library
It would therefore appear that the Commission on Elections not only has the duty to enforce
and administer all laws relative to the conduct of elections but the power to try, hear and
decide any controversy that may be submitted to it in connection with the elections. And as an
incident of this power, it may also punish for contempt in those cases provided for in Rule 64
of the Rules of Court under the same procedure and with the same penalties provided therein.
In this sense, the Commission, although it cannot be classified as a court of justice within the
meaning of the Constitution (Section 13, Article VIII), for it is merely an independent
administrative body (The Nacionalista Party v. Vera, 85 Phil., 126; 47 Off. Gaz. 2375), may
however exercise quasi-judicial functions in so far as controversies that by express provision
of the law come under its jurisdiction. As to what questions may come within this category,
neither the Constitution nor the Revised Election Code specifies. The former merely provides
that it shall come under its jurisdiction, saving those involving the right to vote, all
administrative questions affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and other election
officials, while the latter is silent as to what questions may be brought before it for
determination. But it is clear that, to come under its jurisdiction, the questions should be
controversial in nature and must refer to the enforcement and administration of all laws

Page 385 of 492

relative to the conduct of election. The difficulty lies in drawing the demarcation line between
a duty which inherently is administrative in character and a function which is justiciable and
which would therefore call for judicial action by the Commission. But this much depends upon
the factors that may intervene when a controversy should arise.
Thus, it has been held that the Commission has no power to annul an election which might not
have been free, orderly and honest for such matter devolves upon other agencies of the
Government (Nacionalista Party v. Commission on Elections, 85 Phil., 148; 47 Off. Gaz. 2851);
neither does it have the power to decide the validity or invalidity of votes cast in an election
for such devolves upon the courts or the electoral tribunals (Ibid.); it does not also have the
power to order a recounting of the votes before the proclamation of election even if there are
discrepancies in the election returns for it is a function of our courts of justice (Ramos v.
Commission on Elections, 80 Phil., 722); nor does it have the power to order the correction of
a certificate of canvass after a candidate had been proclaimed and assumed office (De Leon v.
Imperial, 94 Phil., 680); and only very recently this Court has held that the Commission has
no power to reject a certificate of candidacy except only when its purpose is to create
confusion in the minds of the electors (Abcede v. Imperial, 103 Phil., 136).
On the other hand, it has been held that the Commission has the power to annul an illegal
registry list of voters (Feliciano, Et. Al. v. Lugay, Et Al., 93 Phil., 744; 49 Off. Gaz. 3863); to
annul an election canvass made by a municipal board of canvassers (Mintu v. Enage, Et Al., G.
R. No. L-1834); and to investigate and act on the illegality of a canvass of election made by a
municipal board of canvassers (Ramos v. Commission on Elections, 80 Phil., 722). And as to
what are the ministerial duties which the Commission on Elections must perform in connection
with the conduct of elections, the following resume made by the Commission itself in a
controversy which was submitted to it for determination is very
enlightening:jgc:chanrobles.com.ph
"In the enforcement and administration of all laws relative to the conduct of elections, the first
duty of the Commission is to set in motion all the multifarious preparatory processes ranging
from the purchase of election supplies, printing of election forms and ballots, appointments of
members of the boards of inspectors, establishment of precincts and designation of polling
places to the preparation of the registry lists of voters, so as to put in readiness on election
day the election machinery in order that the people who are legally qualified to exercise the
right of suffrage may be able to cast their votes to express their sovereign will. It is incumbent
upon the Commission to see that all these preparatory acts will insure free, orderly and honest
elections. All provisions of the Revised Election Code contain regulations relative to these
processes preparatory for election day. It is incumbent upon the Commission on Elections to
see that all these preparatory acts are carried out freely, honestly and in an orderly manner. It
is essential that the Commission or its authorized representatives, in establishing precincts or
designating polling places, must act freely, honestly and in an orderly manner. It is also
essential that the printing of election forms and the purchase of election supplies and their
distribution are done freely, honestly and in an orderly manner. It is further essential that the
political parties or their duly authorized representatives who are entitled to be represented in
the boards of inspectors must have the freedom to choose the person who will represent them
in each precinct throughout the country. It is further essential that once organized, the boards
of inspectors shall be given all the opportunity to be able to perform their duties in accordance
with law freely, honestly and in an orderly manner, individually and as a whole. In other
words, it is the duty of the Commission to see that the boards of inspectors, in all their

Page 386 of 492

sessions, are placed in an atmosphere whereby they can fulfill their duties without any
pressure, influence and interference from any private person or public official. All these
preparatory steps are administrative in nature and all questions arising therefrom are within
the exclusive powers of the Commission to resolve. All irregularities, anomalies and
misconduct committed by any election official in these preparatory steps are within the
exclusive power of the Commission to correct. Any erring official must respond to the
Commission for investigation. Of these preparatory acts, the preparation of the permanent list
of voters is the matter involved in this case, which to our mind is completely an administrative
matter." (Decision of the Commission on Elections, October 28, 1951, In Re Petition of Angel
Genuino v. Prudente, Et Al., Case No. 196) 1
Considering that the paramount administrative duty of the Commission is to set in motion all
the multifarious preparatory processes ranging from the purchase of election supplies, printing
of election forms and ballots, appointments of members of the board of inspectors,
establishment of precincts and designation of polling places to the preparation of registry lists
of voters, so as to put in readiness on election day the election machinery, it may also be
reasonably said that the requisitioning and preparation of the necessary ballot boxes to be
used in the elections is by the same token an imperative ministerial duty which the
Commission is bound to perform if the elections are to be held. Such is the incident which
gave rise to the contempt case before us. It stems from the ministerial act of the Commission
in requisitioning for the necessary ballot boxes in connection with the last elections and in so
proceeding it provoked a dispute between several dealers who offered to do the job.
Although the negotiation conducted by the Commission has resulted in controversy between
several dealers, that however merely refers to a ministerial duty which the Commission has
performed in its administrative capacity in relation to the conduct of elections ordained by our
Constitution. In proceeding on this matter, it only discharged a ministerial duty; it did not
exercise any judicial function. Such being the case, it could not exercise the power to punish
for contempt as postulated in the law, for such power is inherently judicial in nature. As this
Court has aptly said: "The power to punish for contempt is inherent in all courts; its existence
is essential to the preservation of order in judicial proceedings, and to the enforcement of
judgments, orders and mandates of courts, and, consequently, in the administration of
justice" (Slade Perkins v. Director of Prisons, 58 Phil., 271; U. S. v. Loo Hoe, 36 Phil., 867; In
Re Sotto, 46 Off. Gaz. 2570; In Re Kelly, 35 Phil., 944). The exercise of this power has always
been regarded as a necessary incident and attribute of courts (Slade Perkins v. Director of
Prisons, Ibid.) . Its exercise by administrative bodies has been invariably limited to making
effective the power to elicit testimony (People v. Swena, 296 P., 271). And the exercise of that
power by an administrative body in furtherance of its administrative function has been held
invalid (Langenberg v. Decker, 31 N.E. 190; In Re Sims 37 P., 135; Roberts v. Hacney, 58
S.W., 810). We are therefore persuaded to conclude that the Commission on Elections has no
power nor authority to submit petitioner to contempt proceedings if its purpose is to discipline
him because of the publication of the article mentioned in the charge under consideration.
Wherefore, petition is granted. Respondent Commission is hereby enjoined from proceeding
with the contempt case set forth in its resolution of June 20, 1957, without pronouncement as
to costs.
The preliminary injunction issued by this Court is made permanent.

Page 387 of 492

Paras, C.J., Padilla, Montemayor, Reyes, A., Reyes, J.B.L., Endencia and Felix, JJ., concur.
Endnotes:

1. This case has been upheld by the Supreme Court in the certiorari case, G. R. No. L-5222,
Prudente, Et. Al. v. Genuino, Et Al., Nov. 6. 1951.

EN BANC
G.R. No. L-61998 February 22, 1983
ROGELIO DE JESUS, Petitioner, vs. PEOPLE OF THE PHILIPPINES, et al., Respondents.
Jaime G. Fortes for petitioner.chanrobles virtual law library
The Solicitor General for respondents.
ESCOLIN, J.:
The question of law posed for determination in this petition for review on certiorari of the
resolution of the Sandiganbayan may be propounded thus: Which of these entities have the
power to investigate, prosecute and try election offenses committed by a public officer in
relation to his office - the Commission on Elections and the Court of First Instance [now the
regional trial court] or the Tanodbayan and the Sandiganbayan? chanrobles virtual law library
After the local elections of January 18, 1980, Ananias Hibo defeated candidate of the
Nacionalista Party for the office of mayor of the Municipality of Casiguran, Sorsogon filed with
the COMELEC a complaint charging petitioner Rogelio de Jesus, then COMELEC registrar of
Casiguran, with violation of the 1978 Election Code. Copy of the complaint was sent to the
Ministry of Justice which endorsed the same to the Provincial Fiscal of Sorsogon for
investigation. Noting that petitioner was being charged in relation to his office, Asst. Fiscals
Manuel Genova and Delfin Tarog in their capacity as deputized Tanodbayan prosecutors,
conducted an investigation. Thereafter Fiscal Genova issued a resolution finding the existence
of a prima facie case against petitioner for violation of section 89 1 and sub-sections [x] 2 and
[mm] 3 of Section 178 of the Election Code of 1978. After approval thereof by the
Tanodbayan, the following information, dated January 27, 1982, was filed before the
Sandiganbayan:chanrobles virtual law library
That on or about January 30, 1980 and sometime thereafter to February 6, 1980, in the
Municipality of Casiguran Province of Sorsogon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused while discharging the Office of the Election
Registrar in the Municipality of Casiguran, Province of Sorsogon, taking advantage and
abusing his official position, did there and there wilfully unlawfully and feloniously by reason of

Page 388 of 492

his being a registrar knowingly registered persons in order to vote on January 30, 1980 being
an election day and at the same time issuing Identification cards during election day, thereby
violating the provision of the Election Code of 1978 and at the same time tampering with the
election reports by mag it appear that 10,727 persons were the total number of registered
voters for the election of January 30, 1980, when in truth and in fact the actual total number
of voters as - sported on January 27, 1980 by the accused was only 10,532 but then changed
to 10,727, thereby violating the provisions of Section '89' and Section.'178' under Article XVI
specifically sub- section 'X' and sub-section 'MM' which is a violation of the Election Code of
1978 to the erosion of public faith and confidence.
The case, docketed as SB Criminal Case No. 5054, was raffled to the Second Division of the
Sandiganbayan.chanroblesvirtualawlibrary chanrobles virtual law library
Petitioner filed a motion to quash the information, contending that neither the Tanodbayan nor
the Sandiganbayan has the authority to investigate, prosecute and try the offense chanrobles
virtual law library
xxx xxx xxx chanrobles virtual law library
[x] Any election registrar or any person acting in his behalf who issues or causes the issuance
of a voter's certificate of registration or cancels or causes the cancellation thereof the violation
of the provisions of this Code.chanroblesvirtualawlibrary chanrobles virtual law library
xxx xxx xxx chanrobles virtual law library
[mm] Any person who, without authority, acts as, or assumes r performs any -function of a
member of the election committee, or the board of canvassers, or deputy of representative of
the Commission.
charged in the information, the same being an election offense over which the power to
investigate, prosecute and try is lodged by law in the COMELEC and the Court of First
Instance. In its opposition, the prosecution maintained the Tanodbayan's exclusive authority
to investigate and prosecute offenses committed by public officers and employees in relation
to their office, and consequently, the Sandiganbayan's jurisdiction to try and decide the
charges against petitioner.chanroblesvirtualawlibrary chanrobles virtual law library
The COMELEC, having learned of the pendency of the case, entered its appearance as amicus
curiae, and through its law department manager, Atty. Zoilo Gomez, Jr., submitted a
memorandum supporting petitioner's stand. 4 chanrobles virtual law library
On August 13, 1982, the Sandiganbayan issued the questioned resolution denying the motion
to quash. Petitioner's motion for reconsideration was likewise denied. Hence, this petition for
review on certiorari.chanroblesvirtualawlibrary chanrobles virtual law library
The legal question posed being one of first impression, this, Court resolved to give due course
to the petition, treating the same as an original petition for certiorari under Rule 65 of the
Rules of Court, the proper mode by which relief from the resolution of the Sandiganbayan
could be obtained from this Tribunal. Petitioner and respondents rely on different provisions of

Page 389 of 492

the 1973 Constitution as bases for their respective contentions. Petitioner invokes Section 2 of
Article XII[c] of the 1973 Constitution which vests upon the COMELEC the power "to enforce
and administer all laws relative to the conduct of elections," and its implementing legislation,
Section 182 of the 1978 Election Code, which provides the following: chanrobles virtual law
library
Section 182 - Prosecution. The Commission shall, thru its duly authorized legal officer, have
the power to conduct preliminary investigation of all election offenses punishable under this
Code and to prosecute the same. The Commission may avail of the assistance of other
prosecuting arms of the government.
Petitioner further cites Section 184 of the same Code which invests the court of first instance
with "exclusive original jurisdiction to try and decide any criminal action or proceedings for
violation of this code except those relating to the offense of failure to register or failure to vote
which shall be under the jurisdiction of the city or municipal courts. ... The Solicitor General
supports the petitioner's views.5 chanrobles virtual law library
Upon the other hand, the Sandiganbayan, in its resolution of August 13, 1982, 6 asserts its
jurisdiction over Criminal Case No. 5054 on the authority of Section 5, Article XIII of the
Constitution, which mandated the creation by the Batasan Pambansa of "a special court, to be
known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving
graft and corrupt practices, and such other offenses committed by public officers and
employees, including those in government-owned and controlled corporations, in relation to
their office as may be determined by law." chanrobles virtual law library
To the Sandiganbayan, as set forth in the challenged resolution, ... the key phrase in the
determination as to which of the Sandiganbayan or the regular courts of first instance should
take cognizance of an election offense, is the phrase, 'in relation to their office'." Thus, it
would distinguish between election offenses committed by public officers and employees in
relation to their office and those committed not in relation to their office, in this
manner: chanrobles virtual law library
If the election offense is committed by a public officer or employee NOT in relation to their
office, generally, jurisdiction will be assumed by the regular courts. If, on the other hand, the
offense was committed by a public officer or employee in relation to their office, then there is
no other tribunal vested with jurisdiction to try such offense but this court, in consonance with
the mandate of the Constitution that the Sandiganbayan has jurisdiction, lover ... offenses
committed by public officers and employees in relation to their office.
We find the position of the Sandiganbayan devoid of
merit.chanroblesvirtualawlibrary chanrobles virtual law library
The grant to the COMELEC of the power, among others, to enforce and administer all laws
relative to the conduct of election and the concomittant authority to investigate and prosecute
election offenses is not without compelling reason. The evident constitutional intendment in
bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of
elections, failure of which would result in the frustration of the true will of the people and
make a mere Idle ceremony of the sacred right and duty of every qualified citizen to vote. To

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divest the COMELEC of the authority to investigate and prosecute offenses committed by
public officials in relation to their office would thus seriously impair its effectiveness in
achieving this clear constitutional mandate.chanroblesvirtualawlibrary chanrobles virtual law
library
From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We
perceive neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of
the authority to investigate, prosecute and hear election offenses committed by public officers
in relation to their office, as contra-distinguished from the clear and categorical bestowal of
said authority and jurisdiction upon the COMELEC and the courts of first instance under
Sections 182 and 184, respectively, of the Election Code of
1978.chanroblesvirtualawlibrary chanrobles virtual law library
Under the Constitution, the Sandiganbayan shall have jurisdiction over ... offenses committed
by public officers ... in relation to their office as may be determined by law" [Sec. 5, Art. XIII];
while the Office of the Tanodbayan shall "receive and investigate complaints relative to public
office." [Sec. 6, Art. XIII]. The clause, "as may be determined by law" is, to Our mind imbued
with grave import. It called for a legislation that would define and delineate the power and
jurisdiction of both the Tanodbayan and the Sandiganbayan, as what, in fact had been
provided for in Presidential Decree Nos. 1606 and 1607, creating the said
entities.chanroblesvirtualawlibrary chanrobles virtual law library
Thus, under Section 4 of P.D. No. 1606, the Sandiganbayan shall have jurisdiction
over: chanrobles virtual law library
[a] Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, and Republic Act No. 1379; chanrobles virtual law library
[b] Crimes committed by public officers and employees, including those employed in
government-owned or controlled corporations, embraced in Title VII of the Revised Penal
Code, whether simple or complexed with other crimes; and, chanrobles virtual law library
[c] Other crimes or offenses committed by public officers or employees, including those
employed in government-owned or controlled corporations, in relation to their office.
Plainly, the above quoted paragraph [c] is but a re-statement of the constitutional provision
relating to the Sandiganbayan. It is also to be noted that it is phased in terms so broad and
general that it cannot be legitimately construed to vest said entity with exclusive jurisdiction
over election offenses committed by public officers in relation to their office. Neither can it be
interpreted to impliedly repeal the exclusive and original jurisdiction granted by Section 184 of
the Election Code of 1978 to the court of first instance to hear and decide all election offenses,
without qualification as to the status of the accused.chanroblesvirtualawlibrary chanrobles
virtual law library
Apart from the fact that repeals by implication are not favored. it is noted that while Section
184 of the Election Code deals specifically with election offenses, Section 4[c] of P.D. No, 1606
speaks generally of "other crimes or offenses committed by public officers ... in relation to
their office." Needless to state, as between specific and general statute, the former must

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prevail since it evinces the legislative intent more clearly than a general statute does. 7 And
where a reconciliation between the statute is possible, as in the case at bar, the former should
be deemed an exception to the latter.8 chanrobles virtual law library
The same principle of statutory construction should be applied with respect to the powers
vested upon the COMELEC and the Tanodbayan in so far as election offenses are
concerned.chanroblesvirtualawlibrary chanrobles virtual law library
Moreover, as aptly observed by the COMELEC as well as the Solicitor General, splitting the
jurisdiction over election offenses would serve no beneficial purpose but would rather spawn
much controversy - "complaints about unequal protection, about inconsistent decisions, etc.
(which are) not conducive to a fair and speedy administration of justice." [p. 17, Comment,
Solicitor General].chanroblesvirtualawlibrary chanrobles virtual law library
WHEREFORE, the resolution of the Sandiganbayan Second Division dated August 13, 1982 is
hereby set aside and Criminal Case No. 5054. entitled "People of the Philippines versus Rogelio
de Jesus" is ordered dismissed. The COMELEC is hereby directed to forthwith conduct an
investigation, and if the evidence so warrants, to prosecute the complaint against petitioner
before the proper court of first instance. No costs.chanroblesvirtualawlibrary chanrobles virtual
law library
SO ORDERED.
Fernando, C.J., Makasiar, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Plana,
Vasquez, Relova and Gutierrez, Jr., JJ., concur.chanroblesvirtualawlibrary chanrobles virtual
law library
Teehankee, J., reserves his vote.chanroblesvirtualawlibrary chanrobles virtual law library
Aquino, J., is on leave.chanroblesvirtualawlibrary chanrobles virtual law library
Abad Santos, J., I reserve my vote.
Endnotes:

1 Section 89 of the 1978 Election Code provides:

Sec. 89. Certified list of voters.- Not later than three days before the day of the election, the
election registrar and the members of the citizens election committee shall prepare and
certify, in three copies, a complete list of voters for each voting center containing the names,
in alphabetical order, and addresses of all voters registered in the city, municipality or
municipal district based on the approved applications in the books of voters. One copy should
be delivered to the election committee together with the books of voters for use on election
day, one copy shall be delivered to the barangay captain concerned who shall inform the
voters of their voting center, and the third copy shall be retained by the election
registrar.chanrobles virtual law library

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2&3 Sub-sections "x" and "mm" of Section 178 of the 1978 Election petition Code read as
follows:
"Sec. 178. Prohibited Acts.- The following shall be guilty of an election offense:
4 Annex "F", p. 47, Rollo.chanrobles virtual law library
5 Solicitor General's Comment dated January 11, 1983.chanrobles virtual law library
6 p. 124, Rollo.chanrobles virtual law library
7 Lacsamana, vs. Baltazar, 92 Phil. 32; Wilhemsen vs. Baluyot, 83 SCRA 38.chanrobles virtual
law library
8 Lichauco vs. Apostol, 44 Phil. 138; Butuan Saw Mill Inc. vs. City of Butuan, et al, 16 SCRA
755.

Page 393 of 492

EN BANC
G.R. No. 129417 February 10, 1998
COMMISSION ON ELECTIONS, Petitioner, vs. HON. LORENZO R. SILVA, JR., as
Presiding Judge, RTC, Branches 2 and 3, Balanga, Bataan, HON. BENJAMIN T.
VIANZON, as Presiding Judge, Branch 1, of the same Court, ERASTO TANCIONGCO,
and NORMA CASTILLO, Respondents.

MENDOZA, J.:
This case presents for determination the extent of control which those designated by the
Commission on Elections have in the prosecution of election offenses. The facts are not in
dispute. Pursuant to its power under Art. IX-C, 2(6) of the Constitution, the COMELEC charged
private respondents Erasto Tanciongco and Norma Castillo with violations of 27 of R.A. No.
6646, together with Zenon Uy, in twelve separate informations filed with the Regional Trial
Court of Bataan. Tanciongco, who is provincial prosecutor of Bataan, was vice chairman, while
Castillo, who is division superintendent of schools, was secretary of the Provincial Board of
Canvassers of Bataan. Uy, who is assistant regional director of elections, was chairman of the
board. In each information, the three were accused of having tampered, in conspiracy with
one another, with the certificates of canvass by increasing the votes received by then
senatorial candidate Juan Ponce Enrile in certain municipalities of Bataan in the May 8, 1995
elections.
The twelve cases were raffled to three branches of the court presided over the respondent
judges, Honorable Lorenzo R. Silva Jr. (Branches 2 and 3) and Honorable Benjamin T. Vianzon
(Branch 1).
On October 30, 1996, Tanciongco and Castillo filed a joint "Omnibus Motion for Examination of
Evidence to Determine the Existence of Probable Cause; Suspension of Issuance of Warrant of
Arrest; and Dismissal of the Cases." Chief State Prosecutor Jovencito Zuo, who had been
Page 394 of 492

designated by the Commission on Elections to prosecute the cases, filed a comment joining in
private respondents' request. On the other hand, the complainant, Aquilino Q. Pimentel, Jr.
expressed no objection to the dismissal of the cases against the
two. 1
In orders dated March 31, and April 7, 1997, respectively, Judges Silva and Vianzon
summarily dismissed the cases against private respondents. 2
The COMELEC sought to appeal the dismissal of the cases to the Court of Appeals by filing
notices on April 18, 1997, 3 but the judges denied due course to its appeal. The sole basis for
the denials was the fact that the prosecutor, whom the COMELEC had deputized to prosecute
the cases, had earlier taken a contrary stand against the COMELEC.
Thus, in his order, dated May 16, 1997, denying due course to the Notice of Appeal of the
COMELEC in Criminal Case Nos. 6439, 6441, 6443, 6445, 6646, 6647, and 6470, Judge Silva,
Jr. stated:
A Notice of Appeal dated April 18, 1997, in the above-entitled cases was filed on April 23,
1997 by Jose P. Balbuena, Director IV, Law Department, Commission on Elections, from the
Order of the Court dated March 31, 1997, insofar as it dismissed the above-entitled cases as
regards the accused Erasto Tanciongco and Norma P. Castillo.
Chief State Prosecutor Jovencito Zuo who has been authorized by the Commission on
Elections to prosecute the cases, was required to comment on the Notice of Appeal which does
not bear his signature. In his comment dated May 9, 1997, the Chief State Prosecutor states
that he cannot give his conformity to the Notice of Appeal filed by Jose P. Balbuena of the
Comelec as it would not be consistent with his position that he would abide by whatever
finding the court may come up with on the existence of probable cause as against the accused
Erasto Tanciongco and Norma Castillo. Consequently, the notice of appeal filed by Jose P.
Balbuena is unauthorized and without legal effect.
WHEREFORE, the Notice of Appeal dated April 13, 1997, filed by Jose P. Balbuena is denied
due course. 4
SO ORDERED.
Judge Vianzon took a similar course in Criminal Case Nos. 6438, 6440, 6442, 6444 and 6471.
In his ordedr of May 23, 1997, he stated:
Considering that Chief State Prosecutor Jovencito R. Zuo has filed his comment to the Notice
of Appeal filed by Director Jose P. Balbuena of the COMELEC, manifesting his non-conformity
with the same because of his previous commitment to abide by the ruling of this court on the
Omnibus Motion filed by accused Tanciongco and Castillo and the Motion to Quash filed by
accused Uy, and considering further that Chief State Prosecutor has been duly deputized by
the COMELEC en banc to handle the prosecution of this case, the said Notice of Appeal is
hereby DENIED.
SO ORDERED. 5

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Hence this petition for certiorari and mandamus seeking the nullification of the orders of the
two judges, denying due course to the Notices of Appeal of the COMELEC. 6
The issue is not just the right of the prosecution to appeal from the previous orders of
dismissal. It is settled that the approval of a notice of appeal, in cases where no record on
appeal is required by law, is a ministerial duty of the court to which the notice of appeal is
addressed, provided that such appeal is timely filed. 7 Of course in criminal cases the
prosecution cannot appeal if the accused would thereby be placed in double jeopardy, but here
the cases were dismissed by the judges before the accused were arraigned and, therefore,
jeopardy has not attached.
For while the right to appeal is statutory and is not constitutional, once it is granted by
statute, its denial would be a violation of the due process clause of the Constitution. 8
The ultimate question concerns the authority of the COMELEC prosecutor. More precisely, the
question is, who has authority to decide whether or not to appeal from the orders of dismissal
- the COMELEC or its designated prosecutor? The trial courts held the view that the Chief State
Prosecutor's decision not to appeal the dismissal of the cases, consistent with his earlier
decision to leave the determination of the existence of probable cause to the trial courts, was
binding on them.
We think this view to be mistaken. The authority to decide whether or not to appeal the
dismissal belongs to the COMELEC. Art. IX-C, 2(6) of the Constitution expressly vests in it the
power and function to "investigate and, where appropriate, prosecute cases of violations of
election laws, including acts or omissions constituting election frauds, offenses, and
malpractices." As this Court has held:
In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to
prosecute cases of violation of election laws. This means that the COMELEC is empowered to
conduct preliminary investigations in cases involving election offenses for the purpose of
helping the Judge determine probable cause and for filing an information in court. This power
is exclusive with COMELEC. 9
Indeed, even before the present Constitution, the Omnibus Election Code (B.P. Blg. 881) and,
before it, the 1971 Election Code (R.A. No. 6388) and the 1978 Election Code (P.D. No. 1296)
already gave the COMELEC the exclusive power to conduct preliminary investigation of all
election offenses and to prosecute them in court. 10 The purpose is to place in the hands of an
independent prosecutor the investigation and prosecution of election offenses. 11
Prosecutors designated by the COMELEC to prosecute the cases act as its deputies. They
derive their authority from it and not from their offices. 12 Consequently, it was beyond the
power of Chief State Prosecutor Zuo to oppose the appeal of the COMELEC. For that matter,
it was beyond his power, as COMELEC-designated prosecutor, to leave to the trial courts the
determination of whether there was probable cause for the filing of the cases and, if it found
none, whether the cases should be dismissed. Those cases were filed by the COMELEC after
appropriate preliminary investigation. If the Chief State Prosecutor thought there was no
probable cause for proceeding against private respondents, he should have discussed the
matter with the COMELEC and awaited its instruction. If he disagreed with the COMELEC's

Page 396 of 492

findings, he should have sought permission to withdraw from the cases. But he could not leave
the determination of probable cause to the courts and agree in advance to the dismissal of the
cases should the courts find no probable cause for proceeding with the trial of the accused. It
was, therefore, grave abuse of discretion on the part of the respondent judges to rely on the
manifestation of Chief State Prosecutor Zuo as basis for denying due course to the notices of
appeal filed by the COMELEC.
Whether respondent judges also erred in dismissing the cases filed by the COMELEC - indeed,
whether the trial courts at that stage were justified in inquiring into the existence of probable
cause because of exceptional reasons 13 - must be determined in the appeal after it is allowed.
Here we only hold that whether the orders of dismissal should be appealed is for the COMELEC
to decide, not for Chief State Prosecutor Zuo whom it has merely deputized to represent in it
court.
Private respondents have nothing to say on this question. Their sole contention is that the
petition should be dismissed because, so it is argued, it should have been brought in the name
of the People of the Philippines and have been filed by the Solicitor General.
This contention is without merit. This is not the first time the COMELEC has come to this Court
in its own name in regard to an action taken against it in cases filed by it in the lower courts.
In Commission on Elections v. Court of Appeals 14 the COMELEC's right to appeal from the
decision of the Court of Appeals dismissing a criminal case filed by it was sustained. This Court
said:
The COMELEC has sufficient interest in filing the petition [for certiorari] to set aside the
decision of the Court of Appeals having sustained the demurrer to evidence in the criminal
vase against private respondent for violation of the Election Laws. This is so, for it is not only
entrusted with the duty to enforce the said law but also to prosecute all election offenses.
Under the Constitution, the COMELEC has the power to "prosecute cases of violations of
election laws, including acts or omissions constituting election frauds, offenses, and
malpractices" (Art. IX [C], Sec. 2[6]), and under the Omnibus Election Code, (BP Blg. 881), it
may avail of the assistance of other prosecution arms of the government (Sec. 265). Thus, the
COMELEC Rules of Procedure gave the Chief State, Provincial and City Prosecutors a
continuing authority "as disputes" to prosecute offenses punishable under the Election laws
(COMELEC Rules of Procedure, Part 12, Rule 34, Sec. 2).
We have allowed government agencies to handle their cases before appellate courts, to the
exclusion of the Solicitor General. 15
In Commission on Elections v. Romillo 16 the right of the COMELEC to file a petition
for certiorari and mandamus to question the dismissal of criminal cases which it had filed for
violation of the Election Code was assumed. Although the petition was eventually dismissed,
the ruling was based not on the lack of authority of the COMELEC to file the petition but on
this Court's determination that the dismissal of the criminal cases by the trial court was
correct, considering that the evidence was insufficient.

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Indeed, under the Rules of Court, the proper party who can file a petition for certiorari,
prohibition or mandamus is the person "aggrieved" by the action of a tribunal, board or official
because such action was taken without or in excess of jurisdiction or with grave abuse of
discretion or in willful neglect of duty. 17 In contrast to an appealed case which is brought in
the name of the parties in the court of origin and for this reason retains its title below, the
case, which is an original action, is brought by him. 18
In this case, denied by the courts below the authority to prosecute the criminal actions
because they recognized instead the Chief State Prosecutor as the representative of the
People, the COMELEC had to bring this suit to seek vindication of its authority. Naturally, the
petition has to be brought in its name as the "aggrieved" party. In Assistant Provincial Fiscal of
Bataan v. Dollete, 19 this Court granted a petition for certiorari, which the fiscal had filed in his
name, to annul an order of the trial court denying his right to make an independent
examination of the witnesses for the prosecution for the purpose of satisfying himself of the
sufficiency of the evidence.
Considering the authority of the COMELEC over the prosecution of election offenses, its
decision to bring this instant petition forcertiorari and mandamus is conclusive on the Solicitor
General. It would simply be a matter of referring this case to the Solicitor General so that, if
he agrees, he may take over the conduct of this case. Otherwise, the COMELEC could just
continue handling this case as it has actually done.
Hence, the omission of the COMELEC to refer this petition to the Office of the Solicitor General
for representation should be disregarded. To make the filing of this case depend on his
decision would be to place him in the same position in which respondent judges placed Chief
State Prosecutor Zuo. That would further negate the constitutional function of the COMELEC.
WHEREFORE, the petition if GRANTED. The orders dated May 16, 1997 and May 23, 1997 of
respondent judges are hereby SET ASIDE as null and void and respondent judges are
ORDERED to give due course to the appeals of petitioner from their respective orders in
Criminal Case Nos. 6438, 6440, 6442, 6444 and 6471 (filed in Branch 1); Criminal Case Nos.
6439, 6441, 6443, 6445, 6446 and 6470 (filed in Branch 2); and Criminal Case No. 6447 (filed
in Branch 3).
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Puno, Vitug, Kapunan, Francisco,
Panganiban, Martinez, Quisumbing and Purisima,JJ., concur.
Bellosillo and Melo, JJ., concur in the result.
Endnotes:
1 Rollo, pp. 79 and 81.
2 Id., pp. 80 and 85.

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3 Id., pp. 86 and 88.

4 Id., p. 91
5 Rollo, p. 92.
6 The COMELEC alleges in its petition:
1. This is a petition for certiorari and mandamus under Rule 65 of the Revised Penal Code of
Court, to declare as null and void the Orders issued by respondents Judge Lorenzo R. Silva,
Jr., and Judge Benjamin T. Vianzon, of the Regional Trial Court, Branches 1, 2 and 3, Balanga,
Bataan, namely:
(a) Order dated May 16, 1997, denying due course to the Notice of Appeal dated April 18,
1997, filed by petitioner from the Order dated March 31, 1997, in Crim. Cases Nos. 6439,
6441, 6446, 6443, 6445, 6470, and 6447, and
(b) Order dated My 23, 1997, denying due course to the Notice of Appeal dated April 18,
1997, filed by petitioner from the Order dated March 31, 1997, in Crim. Cases Nos. 6438,
6440, 6442, 6444 and 6471, and to compel said respondent Judges to approve the notice of
appeal filed by petitioner in the aforesaid cases.
7 See 1997 Rules of Civil Procedure, Rule 41; Santos v. Court of Appeals, 253 SCRA 632
(1996).
8 Estoya v. Abraham-Singson, 237 SCRA 1, 19 (1994.)
9 People v. Inting, 187 SCRA 788, 799 (1990).
10 The OMNIBUS ELECTION CODE provides: "Sec. 265. Prosecution - The Commission shall,
through its duly authorized legal officers, have the exclusive power to conduct preliminary
investigation of all election offenses punishable under this Code, and to prosecute the same.
The Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to act on any
complaint within four months from his filing, the complainant may file the complaint with the
office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if
warranted."
11 Compare De Jesus v. People, 120 SCRA 760, 765-766 (1983): "The grant to the COMELEC
of the power, among others, to enforce and administer all laws relative to the conduct of
election and the concomitant authority to investigate and prosecute election offenses is not
without compelling reason. The evident constitutional intendment in bestowing this power to
the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which
would result in the frustration of the true will of the people and make a mere idle ceremony of
the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the
authority to investigate and prosecute offenses committed by public officials in relation to their
office would thus seriously impair its effectiveness in achieving this clear constitutional
mandate." Reiterated in Corpus v. Tanodbayan, 149 SCRA 281, 283 (1987).

Page 399 of 492

12 People v. Basilla, 179 SCRA 87 (1989); People v. Inting, 187 SCRA 788 (1990).
13 Unless there are exceptional circumstances justifying inquiry, such as those enumerated by
this Court in Broka v. Enrile, 192 SCRA 183, 188-189 (1990), it is to be presumed that in filing
cases in court, the prosecutor found probable cause. If a court inquires at all into the
existence of probable cause, it is only for the purpose of determining whether a warrant of
arrest should issue, but not whether the cases should be dismissed (See Roberts, Jr. v. Court
of Appeals, 254 SCRA 307, 349 (1996) (Narvasa, C.J., concurring); Webb v. De Leon, 247
SCRA 652 (1995).
14 229 SCRA 501 (1994).
15 Id., at 505.
16 158 SCRA 716 (1988).
17 Rule 65, 1-3.
18 Rule 44, 1.
19 103 Phil. 914 (1958).

Page 400 of 492

EN BANC
[G.R. NO. 160427 : September 15, 2004]
POLALA SAMBARANI, JAMAL MIRAATO, SAMERA ABUBACAR and MACABIGUNG
MASCARA,Petitioners, v. COMMISSION ON ELECTIONS and EO ESMAEL MAULAY,
Acting Election Officer, Tamparan, Lanao del Sur or whoever is acting on his
behalf,Respondents.
DECISION
CARPIO, J.:
The Case
Challenged in this Petition for Certiorari1 with prayer for temporary restraining order and
preliminary injunction is the Resolution of the Commission on Elections en
banc ("COMELEC")2 dated 8 October 2003. The COMELEC declared a failure of election but
refused to conduct another special election.
The Facts
In the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections
("elections"), Polala Sambarani ("Sambarani"), Jamal Miraato ("Miraato"), Samera Abubacar
("Abubacar"), Macabigung Mascara ("Mascara") and Aliasgar Dayondong ("Dayondong") ran
for re-election as punong barangayin their respective barangays, namely: Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, and Tatayawan South ("five
barangays"), all in Tamparan, Lanao del Sur.
Due to a failure of elections in eleven barangays in Lanao del Sur, the COMELEC issued
Resolution No. 5479 setting special elections on 13 August 2002 in the affected barangays in
Lanao del Sur including the five barangays. On 14 August 2002, Acting Election Officer Esmael
Maulay ("EO Maulay") issued a certification that there were no special elections held on 13
August 2002.

Page 401 of 492

Consequently, Sambarani, Miraato, Abubacar, Mascara and Dayondong ("joint-petitioners")

filed a Joint Petition seeking to declare a failure of elections in the five barangays and the
holding of another special election. The Joint Petition attributed the failure of the special
elections to EO Maulay's non-compliance with COMELEC Commissioner Mehol K. Sadain's
("Commissioner Sadain") directive. Commissioner Sadain had directed EO Maulay to use the
Autonomous Region of Muslim Mindanao ("ARMM") 2001 computerized Voter's List and the
Voter's Registration Records of the Provincial Election Officer during the December 2001
registration of new voters.
The parties did not attend the hearing scheduled on 11 September 2002 despite due notice. In
the 1 October 2002 hearing, counsel for joint-petitioners as well as EO Maulay and his counsel
appeared. The COMELEC ordered the parties to submit their memoranda within 20 days. The
COMELEC also directed EO Maulay to explain in writing why he should not be administratively
charged for failing to comply with Commissioner Sadain's directive. The joint-petitioners filed
their Memorandum on 25 October 2002. EO Maulay did not file a memorandum or a written
explanation as directed. The COMELEC considered the case submitted for resolution.
On 8 October 2003, the COMELEC issued the assailed Resolution, disposing as follows:
ACCORDINGLY, the Department of Interior and Local Government is herebyDIRECTED to
proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK
Chairmen and SK Kagawads in Barangays Occidental Linuk,Pindolonan
Moriatao Sarip, Talub, Tatayawan South, and New Lumbacaingud, all of Tamparan,
Lanao del Sur, in accordance with the pertinent provisions of Republic Act No. 7160, otherwise
known as the Local Government Code of 1991, and other related laws on the matter.
Let a copy of this Resolution be furnished to the Department of Interior and Local
Government, the Municipality of Tamparan, Lanao [d]el Sur, and the respective Sangguniang
Barangays of Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, Tatayawan South
and New Lumbacaingud, of Tamparan.
Finally, let a copy of this Resolution be furnished to the Law Department for Preliminary
Investigation of Respondent ESMAEL MAULAY for possible commission of election offense/s,
and consequently, the filing of administrative charges against him if warranted.
SO ORDERED.3
Sambarani, Miraato, Abubacar and Mascara ("petitioners") filed the instant petition.4
The COMELEC's Ruling
The COMELEC agreed with petitioners that the special elections held on 13 August 2002 in the
five barangays failed. The COMELEC, however, ruled that to hold another special election in
these barangays as prayed for by petitioners is untenable. The COMELEC explained that it is
no longer in a position to call for another special election since Section 6 of the Omnibus
Election Code provides that "special elections shall be held on a date reasonably close to the
date of the election not held, but not later than thirty days after cessation of the cause of such

Page 402 of 492

postponement." The COMELEC noted that more than thirty days had elapsed since the failed
election.
The COMELEC also pointed out that to hold another special election in these barangays will not
only be tedious and cumbersome, but a waste of its precious resources. The COMELEC left to
the Department of Interior and Local Government ("DILG") the process of appointing the
Barangay Captains and Barangay Kagawads as well as the Sangguniang Kabataan ("SK")
Chairmen and SK Kagawads in these barangays "in accordance with the Local Government
Code of 1991 and other related laws on the matter."5
The Issues
Petitioners contend that the COMELEC acted with grave abuse of discretion amounting to lack
of jurisdiction in '
1. Denying the prayer to call for another special election in barangays Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud ("subject barangays");
2. Directing the DILG to proceed with the appointment of the barangay captains, barangay
kagawads, SK chairmen and SK kagawads in the subject barangays;
3. Not declaring the petitioners as the rightful incumbent barangay chairmen of their office
until their successors have been elected and qualified.
The Court's Ruling
The petition is meritorious.
First Issue:
Whether To Call Another Special Election
Petitioners fault the COMELEC for not holding another special election after the failed 13
August 2002 special election. Petitioners insist that the special barangay and SK elections in
the subject barangays failed because EO Maulay did not use the voter's list used during the
2001 ARMM elections. Neither did Maulay segregate and exclude those voters whose Voter's
Registration Records ("VRRs") were not among those 500 VRRs bearing serial numbers
00097501 to 0009800 allocated and released to Tamparan. Finally, Maulay did not delete from
the certified list of candidates the name of disqualified candidate Candidato Manding.
Petitioners contend that COMELEC's refusal to call another special election conflicts with
established jurisprudence, specifically the ruling in Basher v. Commission on Elections.6
The Solicitor General supports the COMELEC's stance that a special election can be held only
within thirty days after the cause of postponement or failure of election has ceased. The
Solicitor General also maintains that the DILG has the power to appoint and fill vacancies in
the concerned elective barangay and SK offices.

Page 403 of 492

Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power to
"enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall." Indisputably, the text and intent of this
constitutional provision is to give COMELEC all the necessary and incidental powers for it to
achieve its primordial objective of holding free, orderly, honest, peaceful and credible
elections.7
The functions of the COMELEC under the Constitution are essentially executive and
administrative in nature. It is elementary in administrative law that "courts will not interfere in
matters which are addressed to the sound discretion of government agencies entrusted with
the regulation of activities coming under the special technical knowledge and training of such
agencies."8 The authority given to COMELEC to declare a failure of elections and to call for
special elections falls under its administrative function.9
The marked trend in our laws has been to grant the COMELEC ample latitude so it can more
effectively perform its duty in safeguarding the sanctity of our elections. But what if, as in this
case, the COMELEC refuses to hold elections due to operational, logistical and financial
problems? Did the COMELEC gravely abuse its discretion in refusing to conduct a second
special Barangay and SK elections in the subject barangays?chanroblesvirtualawlibrary
Neither the candidates nor the voters of the affected barangays caused the failure of the
special elections. The COMELEC's own acting election officer, EO Maulay, readily admitted that
there were no special elections in these barangays. The COMELEC also found that the
Provincial Election Supervisor of Lanao del Sur and the Regional Election Director of Region XII
did not contest the fact that there were no special elections in these barangays.
An election is the embodiment of the popular will, the expression of the sovereign power of
the people.10 It involves the choice or selection of candidates to public office by popular
vote.11 The right of suffrage is enshrined in the Constitution because through suffrage the
people exercise their sovereign authority to choose their representatives in the governance of
the State. The fact that the elections involved in this case pertain to the lowest level of our
political organization is not a justification to disenfranchise voters.
COMELEC anchored its refusal to call another special election on the last portion of Section 6
of the Omnibus Election Code ( "Section 6") which reads:
SEC. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or
other analogous cases the election in any polling place has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in any of such cases
the failure or suspension of election would affect the result of the election, the Commission
shall, on the basis of a verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not held, suspended or which
resulted in a failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the election
or failure to elect. (Emphasis supplied)cralawlibrary

Page 404 of 492

The Court construed Section 6 in Pangandaman v. COMELEC,12as follows '

In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be
later than thirty (30) days after the cessation of the cause of the postponement or suspension
of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the
election not held, suspended or which resulted in the failure to elect. The first involves a
question of fact. The second must be determined in the light of the peculiar circumstances of a
case. Thus, the holding of elections within the next few months from the cessation of
the cause of the postponement, suspension or failure to elect may still be considered
"reasonably close to the date of the election not held." (Emphasis supplied)cralawlibrary
The prohibition on conducting special elections after thirty days from the cessation of the
cause of the failure of elections is not absolute. It is directory, not mandatory, and the
COMELEC possesses residual power to conduct special elections even beyond the deadline
prescribed by law. The deadline in Section 6 cannot defeat the right of suffrage of the people
as guaranteed by the Constitution. The COMELEC erroneously perceived that the deadline in
Section 6 is absolute. The COMELEC has broad power or authority to fix other dates for special
elections to enable the people to exercise their right of suffrage. The COMELEC may fix other
dates for the conduct of special elections when the same cannot be reasonably held within the
period prescribed by law.
More in point is Section 45 of the Omnibus Election Code ("Section 45") which specifically
deals with the election of barangay officials. Section 45 provides:
SEC. 45. Postponement or failure of election. - When for any serious cause such as
violence, terrorism, loss or destruction of election paraphernalia or records, force majeure,
and other analogous causes of such nature that the holding of a free, orderly and honest
election should become impossible in any barangay, the Commission, upon a verified petition
of an interested party and after due notice and hearing at which the interested parties are
given equal opportunity to be heard, shall postpone the election therein for such time as it
may deem necessary.
If, on account of force majeure, violence, terrorism, fraud or other analogous causes, the
election in any barangay has not been held on the date herein fixed or has been suspended
before the hour fixed by law for the closing of the voting therein and such failure or
suspension of election would affect the result of the election, the Commission, on the basis
of a verified petition of an interested party, and after due notice and hearing, at
which the interested parties are given equal opportunity to be heard shall call for the
holding or continuation of the election within thirty days after it shall have verified
and found that the cause or causes for which the election has been postponed or
suspended have ceased to exist or upon petition of at least thirty percent of the registered
voters in the barangay concerned.
When the conditions in these areas warrant, upon verification by the Commission, or upon
petition of at least thirty percent of the registered voters in the barangay concerned, it shall
order the holding of the barangay election which was postponed or suspended. (Emphasis
supplied)cralawlibrary

Page 405 of 492

Unlike Section 6, Section 45 does not state that special elections should be held on a date
reasonably close to the date of the election not held. Instead, Section 45 states that special
elections should be held within thirty days from the cessation of the causes for postponement.
Logically, special elections could be held anytime, provided the date of the special elections is
within thirty days from the time the cause of postponement has ceased.
Thus, in Basher13 the COMELEC declared the 27 May 1997 barangay elections a failure and
set special elections on 12 June 1997 which also failed. The COMELEC set another special
election on 30 August 1997 which this Court declared irregular and void. On 12 April 2000,
this Court ordered the COMELEC "to conduct a special election for punong barangay of Maidan,
Tugaya, Lanao del Sur as soon as possible." This despite the provision in Section 214 of
Republic Act No. 6679 ("RA 6679")15stating that the special barangay election should be held
"in all cases not later than ninety (90) days from the date of all the original election."
Had the COMELEC resolved to hold special elections in its Resolution dated 8 October 2003, it
would not be as pressed for time as it is now. The operational, logistical and financial problems
which COMELEC claims it will encounter with the holding of a second special election can be
solved with proper planning, coordination and cooperation among its personnel and other
deputized agencies of the government. A special election will require extraordinary efforts, but
it is not impossible. In applying election laws, it would be better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms.16 In any event, this
Court had already held that special elections under Section 6 would entail minimal costs
because it covers only the precincts in the affected barangays.17
In this case, the cause of postponement after the second failure of elections was COMELEC's
refusal to hold a special election because of (1) its erroneous interpretation of the law, and (2)
its perceived logistical, operational and financial problems. We rule that COMELEC's reasons
for refusing to hold another special election are void.
Second and Third Issues: Whether the DILG may Appoint
the Barangay and SK Officials
Petitioners contend that the COMELEC gravely abused its discretion in directing the DILG to
proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK
chairmen and SK Kagawads in the four barangays. Petitioners argue that as the incumbent
elective punong barangaysin the four barangays,18 they should remain in office in a hold over capacity until their successors have been elected and qualified. Section 5 of Republic Act
No. 9164 ("RA 9164")19 provides:
Sec. 5. Hold Over. - All incumbent barangay officials and sangguniang kabataan officials shall
remain in office unless sooner removed or suspended for cause until their successors shall
have been elected and qualified. The provisions of the Omnibus Election Code relative to
failure of elections and special elections are hereby reiterated in this Act.
RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes the term
of office of barangay and SK officials, and provides for the qualifications of candidates and
voters for the SK elections.

Page 406 of 492

As the law now stands, the language of Section 5 of RA 9164 is clear. It is the duty of this
Court to apply the plain meaning of the language of Section 5. Since there was a failure of
elections in the 15 July 2002 regular elections and in the 13 August 2002 special elections,
petitioners can legally remain in office as barangay chairmen of their respective barangays in a
hold-over capacity. They shall continue to discharge their powers and duties as punong
barangay, and enjoy the rights and privileges pertaining to the office. True, Section 43(c) of
the Local Government Code limits the term of elective barangay officials to three years.
However, Section 5 of RA 9164 explicitly provides that incumbent barangay officials may
continue in office in a hold over capacity until their successors are elected and qualified.
Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that "[A]ll incumbent
barangay officials xxx shall remain in office unless sooner removed or suspended for cause
xxx until their successors shall have been elected and qualified." Section 8 of the same RA
6679 also states that incumbent elective barangay officials running for the same office "shall
continue to hold office until their successors shall have been elected and qualified."
The application of the hold-over principle preserves continuity in the transaction of official
business and prevents a hiatus in government pending the assumption of a successor into
office.20 As held inTopacio Nueno v. Angeles,21 cases of extreme necessity justify the
application of the hold-over principle.
WHEREFORE, we GRANT the instant petition. The Resolution of the Commission on Elections
dated 8 October 2003 is declared VOID except insofar as it directs its Law Department to
conduct a preliminary investigation of Esmael Maulay for possible commission of election
offenses. Petitioners have the right to remain in office as barangay chairmen in a hold-over
capacity until their successors shall have been elected and qualified. The Commission on
Elections is ordered to conduct special Barangay elections in Barangays Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, all in Tamparan, Lanao del Sur within
thirty (30) days from finality of this decision.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, TINGA, and
Chico-Nazario,JJ., concur.
Endnotes:

Under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure.

Composed of Benjamin S. Abalos, Sr. as Chairman, with Commissioners Luzviminda G.

Tancangco, Rufino SB. Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z. Borra and
Florentino A. Tuason, Jr.
3

Rollo, p. 29.

Page 407 of 492

Dayondong of Barangay Tatayawan South did not join the instant petition.

Rollo, p. 28.

386 Phil. 954 (2000).

Pangandaman v. COMELEC, 377 Phil. 297 (1999).

Province of Zamboanga del Norte v. Court of Appeals, G.R. No. 109583, 11 October 2000,
342 SCRA 549.
9

Ampatuan v. COMELEC, 426 Phil. 201 (2002).

10

Taule v. Santos, G.R. No. 90336, 12 August 1991, 200 SCRA 512.

11

Ibid.

12

Supra note 7.

13

Supra note 6.

14

Section 2 of RA 6679 provides:

SEC. 2. When for any serious cause such as rebellion, insurrection, violence, terrorism, loss or
destruction of election paraphernalia, and any analogous causes of such nature that the
holding of a free, orderly and honest election should become impossible in any barangay, the
Commission on Elections motu proprio or upon sworn petition of ten (10) registered voters of
a barangay, after summary proceedings of the existence of such grounds, shall suspend or
postpone the election therein to a date reasonably close to the date of the election that is not
held or is suspended or postponed, or which resulted in a failure to elect, but not later than
thirty (30) days after the cessation of the cause for such suspension or postponement of the
election or failure to elect, and in all cases not later than ninety (90) days from the date of all
the original election.
15

AN ACT TO AMEND REPUBLIC ACT NO. 6653 TO POSTPONE THE BARANGAY ELECTIONS TO
MARCH 28, 1989, PRESCRIBING ADDITIONAL RULES GOVERNING THE CONDUCT OF
BARANGAY ELECTIONS AND FOR OTHER PURPOSES.
16

Malabaguio v. Commission on Elections, G.R. No. 142507, 1 December 2000, 346 SCRA
699; Maruhom v. Comelec, 387 Phil. 491 (2000).
17

Lucero v. Commission on Elections, G.R. NOS. 113107 and 113509, 20 July 1994, 234 SCRA
280.
18

Now only four, since Dayondong of Tatayawan South no longer joined this petition.

Page 408 of 492

19

AN ACT PROVIDING FOR SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN

ELECTIONS, AMENDING REPUBLIC ACT. NO. 7160, AS AMENDED, OTHERWISE KNOWN AS
THE "LOCAL GOVERNMENT CODE OF 1991," AND FOR OTHER PURPOSES.
20

State ex rel. Coe v. Lee, 147 Fla 464; Burnett v. Brown, 194 Va. 103.

21

76 Phil. 12 (1946).

EN BANC
[G.R. No. 133676. April 14, 1999.]
TUPAY T. LOONG, Petitioner, v. COMMISSION ON ELECTIONS and ABDUSAKUR
TAN,Respondents.
DECISION
PUNO, J.:
In a bid to improve our elections, Congress enacted R.A. No. 8436 on December 22, 1997
prescribing the adoption of an automated election system. The new system was used in the
May 11, 1998 regular elections held in the Autonomous Region in Muslim Mindanao (ARMM)
which includes the Province of Sulu. Atty. Jose Tolentino, Jr. headed the COMELEC Task Force
to have administrative oversight of the elections in Sulu.chanroblesvirtuallawlibrary
The voting in Sulu was relatively peaceful and orderly. 1 The problem started during the
automated counting of votes for the local officials of Sulu at the Sulu State College. At about 6
a.m. of May 12, 1998, some election inspectors and watchers informed Atty. Tolentino, Jr. of
discrepancies between the election returns and the votes cast for the mayoralty candidates in
the municipality of Pata. Some ballots picked at random by Atty. Tolentino, Jr. confirmed that
votes in favor of a mayoralty candidate were not reflected in the printed election returns. He
suspended the automated counting of ballots in Pata and immediately communicated the
problem to the technical experts of COMELEC and the suppliers of the automated machine.
After consultations, the experts told him that the problem was caused by the misalignment of

Page 409 of 492

the ovals opposite the names of candidates in the local ballots. They found nothing wrong with
the automated machines. The error was in the printing of the local ballots, as a consequence
of which, the automated machines failed to read them correctly. 2
At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency meeting of the
local candidates and the military-police officials overseeing the Sulu elections. Those who
attended were the various candidates for governor, namely, petitioner Tupay Loong, private
respondent Abdusakur Tan, intervenor Yusop Jikiri and Kimar Tulawie. Also in attendance were
Brig. Gen. Edgardo Espinosa, AFP, Marine forces, Southern Philippines, Brig. Gen. Percival
Subala, AFP, 3rd Marine Brigade, Supt. Charlemagne Alejandrino, Provincial Director, Sulu,
PNP Command and congressional candidate Bensandi Tulawie. 3
The meeting discussed how the ballots in Pata should be counted in light of the misaligned
ovals. There was lack of agreement. Those who recommended a shift to manual count were
Brig. Generals Espinosa and Subala, PNP Director Alejandrino, gubernatorial candidates Tan
and Tulawie and congressional candidate Bensandi Tulawie. Those who insisted on an
automated count were gubernatorial candidates Loong and Jikiri. In view of their differences in
opinion, Atty. Tolentino, Jr. requested the parties to submit their written position papers. 4
Reports that the automated counting of ballots in other municipalities in Sulu was not working
well were received by the COMELEC Task Force. Local ballots in five (5) municipalities were
rejected by the automated machines. These municipalities were Talipao, Siasi, Tudanan, Tapul
and Jolo. The ballots were rejected because they had the wrong sequence code. 5
Private respondent Tan and Atty. Tolentino, Jr. sent separate communications to the COMELEC
en banc in Manila. Still, on May 12, 1998, Tan requested for the suspension of the automated
counting of ballots throughout the Sulu province. 6 On the same day, COMELEC issued Minute
Resolution No. 98-1747 ordering a manual count but only in the municipality of Pata. The
resolution reads: 7
"x

"In the matter of the Petition dated May 12, 1998 of Abdusakur Tan, Governor, Sulu, to
suspend or stop counting of ballots through automation (sic) machines for the following
grounds, quoted to wit:chanrob1es virtual 1aw library
1. The Election Returns for the Municipality of Pata, Province of Sulu-District II do not reflect
or reveal the mandate of the voters:chanrob1es virtual 1aw library
DISCUSSIONS
That the watchers called the attention of our political leaders and candidates regarding their
discovery that the election returns generated after the last ballots for a precinct is scanned
revealed that some candidates obtained zero votes, among others the Provincial Board
Members, Mayor, Vice-Mayor, and the councilors for the LAKAS-NUCD-UMDP;
That the top ballot, however, reveals that the ballots contained votes for Anton Burahan,
candidate for Municipal Mayor while the Election Return shows zero vote;

Page 410 of 492

That further review of the Election Return reveals that John Masillam, candidate for Mayor
under the LAKAS-NUCD-UMDP-MNLF obtains (sic) 100% votes of the total number of voters
who actually voted;
The foregoing discrepancies were likewise noted and confirmed by the chairmen, poll clerks
and members of the Board of Election Inspectors (BEI) such as Rena Jawan, Matanka Hajirul,
Dulba Kadil, Teddy Mirajuli, Rainer Talcon, Mike Jupakal, Armina Akmad, Romulo Roldan and
Lerma Marawali to mention some;
The Pata incident can be confirmed by no less than Atty. Jose Tolentino, Head, Task Force
Sulu, whose attention was called regarding the discrepancies;
The foregoing is a clear evidence that the automated machine (scanner) cannot be relied
upon as to truly reflect the contents of the ballots. If such happened in the Municipality of
Pata, it is very possible that the same is happening in the counting of votes in the other
municipalities of this province. If this will not be suspended or stopped, the use of automated
machines will serve as a vehicle to frustrate the will of the sovereign people of Sulu;
Wherefore, the foregoing premises considered and in the interest of an honest and orderly
election, it is respectfully prayed of this Honorable Commission that an Order be issued
immediately suspending or stopping the use of the automated machine (scanner) in the
counting of votes for all the eighteen (18) municipalities in the Province of Sulu and in lieu
thereof, to avoid delay, counting be done through the usual way and known and tested by us.
"While the commission does not agree with the conclusions stated in the petition, and the
failure of the machine to read the votes may have been occasioned by other factors, a matter
that requires immediate investigation, but in the public interest, the Commission,
RESOLVED to grant the Petition dated May 12, 1998 and to Order that the counting of votes
shall be done manually in the Municipality of PATA, the only place in Sulu where the
automated machine failed to read the ballots, subject to notice to all parties concerned."
chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
Before midnight of May 12, 1998, Atty. Tolentino, Jr. was able to send to the COMELEC en
banc his report and recommendation, urging the use of the manual count in the entire
Province of Sulu, viz: 8
"The undersigned stopped the counting in the municipality of Pata since he discovered that
votes for a candidate for mayor was credited in favor of the other candidate. Verification with
the Sulu Technical Staff, including Pat Squires of ES & S, reveals that the cause of the error is
the way the ballot was printed. Aside from misalignment of the ovals and use of codes
assigned to another municipality (which caused the rejection of all local ballots in one precinct
in Talipao), error messages appeared on the screen although the actual condition of the
ballots would have shown a different message. Because of these, the undersigned directed
that counting for all ballots in Sulu be stopped to enable the Commission to determine the
problem and rectify the same. It is submitted that stopping the counting is more in
consonance with the Commissions mandate than proceeding with an automated but
inaccurate count.

Page 411 of 492

"In view of the error discovered in Pata and the undersigneds order to suspend the counting,
the following documents were submitted to him.
"1. Unsigned letter dated May 12, 1998 submitted by Congressman Tulawie for manual
counting and canvassing;
"2. Petition of Governor Sakur Tan for manual counting;
"3. Position paper of Tupay Loong, Benjamin Loong, and Asani Tamang for automated count;
"4. MNLF Position for automated count; and
"5. Recommendation of General E. V. Espinosa, General PM Subala, and PD CS Alejandrino for
manual count;
"Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely
intended to tame a disorderly crowd, inside and outside SSC, or a show of force.
"It is submitted that since an error was discovered in a machine which is supposed to have an
error rate of 1:1,000,000, not a few people would believe that this error in Pata would extend
to the other municipalities. Whether or not this is true, it would be more prudent to stay away
from a lifeless thing that has sown tension and anxiety among and between the voters of Sulu.
Respectfully submitted:chanrob1es virtual 1aw library
12 May 1998
(SGD.) JOSE M. TOLENTINO, JR."cralaw virtua1aw library
The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving Atty.
Tolentino, Jr.s recommendation and the manner of its implementation as suggested by
Executive Director Resurreccion Z. Borra. The Resolution reads: 9
"In the matter of the Memorandum dated 13 May 1998 of Executive Director Resurreccion Z.
Borra, pertinent portion of which is quoted as follows:jgc:chanrobles.com.ph
"In connection with Min. Res. No. 98-1747 promulgated May 12, 1998 which resolved to order
that the counting of votes shall be done manually in the municipality of Pata, the only place in
Sulu where the automated counting machine failed to read the ballots, subject to notice to all
parties concerned, please find the following:jgc:chanrobles.com.ph
"1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force Head, Sulu, addressed to
the Executive Director on the subject counting and canvassing in the municipality of Pata due
to the errors of the counting of votes by the machine brought about by the error in the
printing of the ballot, causing misalignment of ovals and use of codes assigned to another
municipality.
He recommended to revert to the manual counting of votes in the whole of Sulu. He attached
the stand of Congressman Tulawie, Governor Sakur Tan and recommendation of Brigadier

Page 412 of 492

General Edgardo Espinosa, General Percival Subala, P/Supt. Charlemagne Alejandrino for
manual counting. The position paper of former Governor Tupay Loong, Mr. Benjamin Loong
and Mr. Asani S. Tamang, who are candidates for Governor and Congressman of 1st and 2nd
Districts respectively, who wanted the continuation of the automated counting.
"While the forces of AFP are ready to provide arm (sic) security to our Comelec officials, BEIs
and other deputies, the political tensions and imminent violence and bloodshed may not be
prevented, as per report received, the MNLF forces are readying their forces to surround the
venue for automated counting and canvassing in Sulu in order that the automation process
will continue.chanrobles law library
"Director Borra recommends, that while he supports Minute Resolution No. 98-1747,
implementation thereof shall be done as follows:jgc:chanrobles.com.ph
"1. That all the counting machines from Jolo, Sulu be transported back by C130 to Manila and
be located at the available space at PICC for purposes of both automated and manual
operations. This approach will keep the COMELEC officials away from violence and bloodshed
between the two camps who are determined to slug each other as above mentioned in Jolo,
Sulu. Only authorized political party and candidate watchers will be allowed in PICC with
proper security, both inside and outside the perimeters of the venue at PICC.
"2. With this process, there will be an objective analysis and supervision of the automated and
manual operations by both the MIS and Technical Expert of the ES & S away from the
thundering mortars and the sounds of sophisticated heavy weapons from both sides of the
warning factions.
"3. Lastly, it will be directly under the close supervision and control of Commission on
Elections En Banc.
"RESOLVED:jgc:chanrobles.com.ph
"1. To transport all counting machines from Jolo, Sulu by C130 to Manila for purposes of both
automated and manual operations, with notice to all parties concerned;
"2. To authorize the official travel of the board of canvassers concerned for the conduct of the
automated and manual operations of the counting of votes at PICC under the close supervision
and control of the Commission En Banc. For this purpose, to make available a designated
space at the PICC;
"3. To authorize the presence of only the duly authorized representative of the political parties
concerned and the candidates watchers both outside and inside the perimeters of the venue at
PICC."cralaw virtua1aw library
Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution No. 98-1750 and
called for another meeting the next day, May 14, 1998, to discuss the implementation of the
resolution. 10 The meeting was attended by the parties, by Lt. Gen. Joselin Nazareno, then
the Chief of the AFP Southern Command, the NAMFREL, media, and the public. Especially
discussed was the manner of transporting the ballots and the counting machines to the PICC
in Manila. They agreed to allow each political party to have at least one (1) escort/watcher for

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every municipality to accompany the flight. Two C130s were used for the purpose. 11
On May 15, 1998, the COMELEC en banc issued Minute Resolution No. 98-1796 laying down
the rules for the manual count, viz: 12
"In the matter of the Memorandum dated 15 May 1998 of Executive Director Resurreccion Z.
Borra, quoted to wit:chanrob1es virtual 1aw library
In the implementation of COMELEC Min. Resolution No. 98-1750 promulgated 13 May 1998 in
the manual counting of votes of Pata, Sulu, and in view of the arrival of the counting
machines, ballot boxes, documents and other election paraphernalia for the whole province of
Sulu now stored in PICC, as well as the arrival of the Municipal Board of Canvassers of said
Municipality in Sulu, and after conference with some members of the Senior Staff and
Technical Committee of this Commission, the following are hereby respectfully
recommended:chanrob1es virtual 1aw library
1. Manual counting of the local ballots of the automated election system in Pata, Sulu;
2. Automated counting of the national ballots considering that there are no questions raised
on the National Elective Officials as pre-printed in the mark-sensed ballots;
3. The creation of the following Special Boards of Inspectors under the supervision of Atty.
Jose M. Tolentino, Jr., Task Force Head, Sulu, namely:chanrob1es virtual 1aw library
a) Atty. Mamasapunod M. Aguam
Ms. Gloria Fernandez
Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jacelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Theresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa

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Ms. Teresita Velasco

Ms. Nelly Jaena
4. Additional Special Board of Inspectors may be created when necessary.
5. The Provincial Board of Canvassers which by standing Resolution is headed by the Task
Force Sulu Head shall consolidate the manual and automated results as submitted by the
Municipal Boards of Canvassers of the whole province with two members composed of
Directors Estrella P. de Mesa and Ester L. Villaflor-Roxas;
6. The political parties and the candidates in Sulu as well as the Party-List Candidates are
authorized to appoint their own watchers upon approval of the Commission,
RESOLVED to approve the foregoing recommendations in the implementation of Min.
Resolution No. 98-1750 promulgated on 13 May 1998 providing for the manual counting of
votes in the municipality of Pata, Sulu.
RESOLVED, moreover, considering the recommendation of Comm. Manolo B. Gorospe,
Commissioner-In-Charge, ARMM, to conduct a parallel manual counting on all 18
municipalities of Sulu as a final guidance of the reliability of the counting machine which will
serve as basis for the proclamation of the winning candidates and for future reference on the
use of the automated counting machine."
On May 18, 1998, petitioner filed his objection to Minute Resolution No. 98-1796, viz: 13
"1. The minute resolution under agenda No. 98-1796 violates the provisions of Republic Act
No. 8436 providing for an automated counting of the ballots in the Autonomous Region in
Muslim Mindanao. The automated counting is mandatory and could not be substituted by a
manual counting. Where the machines are allegedly defective, the only remedy provided for
by law is to replace the machine. Manual counting is prohibited by law;
"2. There are strong indications that in the municipality of Pata the ballots of the said
municipality were rejected by the counting machine because the ballots were tampered and/or
the texture of the ballots fed to the counting machine are not the official ballots of the
Comelec;
"3. The automated counting machines of the Comelec have been designed in such a way that
only genuine official ballots could be read and counted by the machine;
"4. The counting machines in the other municipalities are in order. In fact, the automated
counting has already started. The automated counting in the municipalities of Lugus and
Panglima Tahil has been completed. There is no legal basis for the parallel manual counting
ordained in the disputed minute resolution."cralaw virtua1aw library
Nonetheless, COMELEC started the manual count on the same date, May 18,
1998.chanroblesvirtuallawlibrary:red

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On May 25, 1998, petitioner filed with this Court a petition for certiorari and prohibition under
Rule 65 of the Rules of Court. He contended that: (a) COMELEC issued Minute Resolution Nos.
98-1747, 98-1750, and 98-1798 without prior notice and hearing to him; (b) the order for
manual counting violated R.A. No. 8436; (c) manual counting gave "opportunity to the
following election cheating," namely.
"(a) The counting by human hands of the tampered, fake and counterfeit ballots which the
counting machines have been programmed to reject (Section 7, 8 & 9 of Rep. Act 8436).
"(b) The opportunity to substitute the ballots all stored at the PICC. In fact, no less than the
head of the COMELEC Task Force of Sulu, Atty. Jose M. Tolentino, Jr. who recommended to
the COMELEC the anomalous manual counting, had approached the watchers of petitioners to
allow the retrieval of the ballots, saying "tayo, tayo lang mga watchers, pag-usapan natin,"
clearly indicating overtures of possible bribery of the watchers of petitioner (ANNEX E).
"(c) With the creation by the COMELEC of only 22 Boards of Election Inspectors to manually
count the 1,194 precincts, the manipulators are given sufficient time to change and tamper
the ballots to be manually counted.
"(d) There is the opportunity of delaying the proclamation of the winning candidates through
the usually dilatory moves in a pre-proclamation controversy because the returns and
certificates of canvass are already human (sic) made. In the automated counting there is no
room for any dilatory pre-proclamation controversy because the returns and the MBC and PBC
certificates of canvass are machine made and immediate proclamation is ordained
thereafter."cralaw virtua1aw library
Petitioner then prayed:jgc:chanrobles.com.ph
"WHEREFORE, it is most especially prayed of the Honorable Court that:jgc:chanrobles.com.ph
"1. upon filing of this petition, a temporary restraining order be issued enjoining the COMELEC
from conducting a manual counting of the ballots of the 1,194 precincts of the 18
municipalities of the Province of Sulu but instead proceed with the automated counting of the
ballots, preparation of the election returns and MBC, PBC certificates of canvass and proclaim
the winning candidates on the basis of the automated counting and consolidation of results;
"2. this petition be given due course and the respondents be required to answer;
"3. after due hearing, the questioned COMELEC En Banc Minute Resolutions of May 12, 13, 15,
and 17, 1998 be all declared null and void ab initio for having been issued without jurisdiction
and/or with grave abuse of discretion amounting to lack of jurisdiction and for being in
violation of due process of law;
"4. the winning candidates of the Province of Sulu be proclaimed on the basis of the results of
the automated counting, automated election returns, automated MBC and PBC certificates of
canvass;
"x

x."cralaw virtua1aw library

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On June 8, 1998, private respondent Tan was proclaimed governor-elect of Sulu on the basis
of the manual counting. 14 Private respondent garnered 43,573 votes. Petitioner was third
with 35,452 votes or a difference of 8,121 votes.
On June 23, 1998, this Court required the respondents to file their Comment to the petition
and directed the parties "to maintain the status quo prevailing at the time of the filing of the
petition." 15 The vice-governor elect was allowed to temporarily discharge the powers and
functions of governor.
On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate for governor filed a
motion for intervention and a Memorandum in Intervention. 16 The result of the manual count
showed he received 38,993 votes and placed second. Similarly, he alleged denial of due
process, lack of factual basis of the COMELEC resolutions and illegality of manual count in light
of R.A. No. 8436. The Court noted his intervention. 17 A similar petition for intervention filed
by Abdulwahid Sahidulla, a candidate for vice-governor, on October 7, 1998 was denied as it
was filed too late.
In due time, the parties filed their respective Comments. On September 25, 1998, the Court
heard the parties in oral argument 18 which was followed by the submission of their written
memoranda.chanrobles virtual lawlibrary
The issues for resolution are the following:chanrob1es virtual 1aw library
1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of Court
is the appropriate remedy to invalidate the disputed COMELEC resolutions.
2. Assuming the appropriateness of the remedy, whether or not COMELEC committed grave
abuse of discretion amounting to lack of jurisdiction in ordering a manual count.
2.a. Is there a legal basis for the manual count?
2.b. Are its factual bases reasonable?
2.c. Were the petitioner and the intervenor denied due process by the COMELEC when it
ordered a manual count?
3. Assuming the manual count is illegal and that its result is unreliable, whether or not it is
proper to call for a special election for the position of governor of Sulu.
We shall resolve the issues in seriatim.
First. We hold that certiorari is the proper remedy of the petitioner. Section 7, Article IX (A) of
the 1987 Constitution states that "unless 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." We have interpreted this
provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise
of its adjudicatory or quasi-judicial powers. 19 Contrariwise, administrative orders of the
COMELEC are not, as a general rule, fit subjects of a petition for certiorari. The main issue in
the case at bar is whether the COMELEC gravely abused its discretion when it ordered a

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manual count of the 1998 Sulu local elections. A resolution of the issue will involve an
interpretation of R.A. No. 8436 on automated election in relation to the broad power of the
COMELEC under Section 2(1), Article IX(C) of the Constitution "to enforce and administer all
laws and regulations relative to the conduct of an election . . ." The issue is not only legal but
one of first impression and undoubtedly suffused with significance to the entire nation. It is
adjudicatory of the right of the petitioner, the private respondent and the intervenor to the
position of governor of Sulu. These are enough considerations to call for an exercise of
the certiorarijurisdiction of this Court.
Second. The big issue, one of first impression, is whether the COMELEC committed grave
abuse of discretion amounting to lack of jurisdiction when it ordered a manual count in light of
R.A. No. P8436. The post election realities on ground will show that the order for a manual
count cannot be characterized as arbitrary, capricious or whimsical.
a. It is well established that the automated machines failed to read correctly the ballots in the
municipality of Pata. A mayoralty candidate, Mr. Anton Burahan, obtained zero votes despite
the representations of the Chairman of the Board of Election Inspectors and others that they
voted for him. Another candidate garnered 100% of the votes.
b. It is likewise conceded that the automated machines rejected and would not count the local
ballots in the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo.
c. These flaws in the automated counting of local ballots in the municipalities of Pata, Talipao,
Siasi, Indanan, Tapal and Jolo were carefully analyzed by the Technical experts of COMELEC
and the supplier of the automated machines. All of them found nothing wrong with the
automated machines. They traced the problem to the printing of local ballots by the National
Printing Office. In the case of the municipality of Pata, it was discovered that the ovals of the
local ballots were misaligned and could not be read correctly by the automated machines. In
the case of the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo, it turned out that the
local ballots contained the wrong sequence code. Each municipality was assigned a sequence
code as a security measure. Ballots with the wrong sequence code were programmed to be
rejected by the automated machines.
It is plain that to continue with the automated count in these five (5) municipalities would
result in a grossly erroneous count. It cannot also be gainsaid that the count in these five (5)
municipalities will affect the local elections in Sulu. There was no need for more sampling of
local ballots in these municipalities as they suffered from the same defects. All local ballots in
Pata with misaligned ovals will be erroneously read by the automated machines. Similarly, all
local ballots in Talipao, Siasi, Indanan, Tapal and Jolo with wrong sequence codes are certain
to be rejected by the automated machines. There is no showing in the records that the local
ballots in these five (5) municipalities are dissimilar which could justify the call for their
greater sampling.
Third. These failures of automated counting created post election tension in Sulu, a province
with a history of violent elections. COMELEC had to act decisively in view of the fast
deteriorating peace and order situation caused by the delay in the counting of votes. The
evidence of this fragile peace and order cannot be downgraded. In his handwritten report to
the COMELEC dated May 12, 1998, Atty. Tolentino, Jr. stated:jgc:chanrobles.com.ph

Page 418 of 492

"x

"Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely
intended to tame a disorderly crowd inside and outside SSC, or a show of force.
"It is submitted that since an error was discovered in a machine which is supposed to have an
error rate of 1:1,000,000, not a few people would believe that this error in Pata would extend
to the other municipalities. Whether or not this is true, it would be more prudent to stay away
from a lifeless thing that has sown tension and anxiety among and between the voters of
Sulu."cralaw virtua1aw library
Executive Director Resurreccion Z. Borra, Task Force Head, ARMM in his May 13, 1998
Memorandum to the COMELEC likewise stated:chanrob1es virtual 1aw library
x

"While the forces of AFP are ready to provide arm (sic) security to our COMELEC officials, BEIs
and other deputies, the political tensions and imminent violence and bloodshed may not be
prevented, as per report received, the MNLF forces are readying their forces to surround the
venue for automated counting and canvassing in Sulu in order that automation process will
continue."cralaw virtua1aw library
Last but not the least, the military and the police authorities unanimously recommended
manual counting to preserve peace and order. Brig. Gen. Edgardo V. Espinosa, Commanding
General, Marine Forces Southern Philippines, Brig. Gen. Percival M. Subala, Commanding
General, 3rd Marine Brigade, and Supt. Charlemagne S. Alejandrino, Provincial Director, Sulu
PNP Command explained that it." . . will not only serve the interest of majority of the political
parties involved in the electoral process but also serve the interest of the military and police
forces in maintaining peace and order throughout the province of Sulu."cralaw virtua1aw
library
An automated count of the local votes in Sulu would have resulted in a wrong count, a
travesty of the sovereignty of the electorate. Its aftermath could have been a blood bath.
COMELEC avoided this imminent probability by ordering a manual count of the votes. It would
be the height of irony if the Court Condemns COMELEC for aborting violence in the Sulu
elections.
Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied due process.
The Tolentino memorandum clearly shows that they were given every opportunity to oppose
the manual count of the local ballots in Sulu. They were orally heard. They later submitted
written position papers. Their representatives escorted the transfer of the ballots and the
automated machines from Sulu to Manila. Their watchers observed the manual count from
beginning to end. We quote the Tolentino memorandum, viz:jgc:chanrobles.com.ph
"x

"On or about 6:00 a.m. of May 12, 1998, while automated counting of all the ballots for the
province of Sulu was being conducted at the counting center located at the Sulu State College,

Page 419 of 492

the COMELEC Sulu Task Force Head (TF Head) proceeded to the room where the counting
machine assigned to the municipality of Pata was installed to verify the cause of the
commotion therein.
"During the interview conducted by the TF Head, the members of the Board of Election
Inspectors (BEI) and watchers present in said room stated that the counting machine assigned
to the municipality of Pata did not reflect the true results of the voting thereat. The members
of the BEI complained that their votes were not reflected in the printout of the election returns
since per election returns of their precincts, the candidate they voted for obtained "zero." After
verifying the printout of some election returns as against the official ballots, the TF Head
discovered that votes cast in every of a mayoralty candidate were credited in favor of his
opponent.
"In his attempt to remedy the situation, the TF Head suspended the counting of all ballots for
said municipality to enable COMELEC field technicians to determine the cause of the technical
error, rectify the same, and thereafter proceed with automated counting. In the meantime,
the counting of the ballots for the other municipalities proceeded under the automated
system.
"Technical experts of the supplier based in Manila were informed of the problem and after
numerous consultations through long distance calls, the technical experts concluded that the
cause of the error was in the manner the ballots for local positions were printed by the
National Printing Office (NPO), namely, that the ovals opposite the names of the candidates
were not properly aligned. As regards the ballots for national positions, no error was found.
"Since the problem was not machine-related, it was obvious that the use of counting machines
from other municipalities to count the ballots of the municipality of Pata would still result in
the same erroneous count. Thus, it was found necessary to determine the extent of the error
in the ballot printing process before proceeding with the automated counting.
"To avoid a situation where proceeding with automation will result in an erroneous count, the
TF Head, on or about 11:45 a.m. ordered the suspension of the counting of all ballots in the
province to enable him to call a meeting with the heads of the political parties which fielded
candidates in the province, inform them of the technical error, and find solutions to the
problem.
On or about 12:30 p.m., the TF Head presided over a conference at Camp General Bautista
(3rd Marine Brigade) to discuss the process by which the will of the electorate could be
determined. Present during the meeting were:chanrob1es virtual 1aw library
1. Brig. Gen. Edgardo Espinoza
Marine Forces, Southern Philippines
2. Brig. Gen. Percival Subala
3rd Marine Brigade
3. Provincial Dir. Charlemagne Alejandrino

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Sulu PNP Command

4. Gubernatorial Candidate Tupay Loong
LAKAS-NUCD Loong Wing
5. Gubernatorial Candidate Abdusakur Tan
LAKAS-NUCD Tan Wing
6. Gubernatorial Candidate Yusop Jikiri
LAKAS-NUCD-MNLF Wing
7. Gubernatorial Candidate Kimar Tulawie
LAMMP
8. Congressional Candidate Bensaudi Tulawie
LAMMP
"During said meeting, all of the above parties verbally advanced their respective positions.
Those in favor of a manual count were:chanrob1es virtual 1aw library
1. Brig. Gen. Edgardo Espinoza
2. Brig. Gen. Percival Subala
3. Provincial Dir. Charlemagne Alejandrino
4. Gubernatorial Candidate Abdusakur Tan
5. Gubernatorial Candidate Kimar Tulawie
6. Congressional Candidate Bensaudi Tulawie
and those in favor of an automated count were:chanrob1es virtual 1aw library
1. Gubernatorial Candidate Tupay Loong
2. Gubernatorial Candidate Yusop Jikiri
"Said parties were then requested by the TF Head to submit their respective position papers so
that the same may be forwarded to the Commission en banc, together with the
recommendations of the TF Head.
"The TF Head returned to the counting center at the Sulu State College and called his technical

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staff to determine the extent of the technical error and to enable him to submit the
appropriate recommendation to the Commission en banc.
"Upon consultation with the technical staff, it was discovered that in the Municipality of
Talipao, some of the local ballots were rejected by the machine. Verification showed that while
the ballots were genuine, ballot paper bearing a wrong "sequence code" was used by the NPO
during the printing process.
Briefly, the following is the manner by which a "sequence code" determined genuineness of a
ballot. A municipality is assigned a specific machine (except for Jolo, which was assigned two
(2) machines, and sharing of one (1) machine by two (2) municipalities, namely, H.P. Tahil
and Maimbung, Pandami and K. Caluang, Pata and Tongkil and Panamao and Lugus). A
machine is then assigned a specific "sequence code" as one of the security features to detect
whether the ballots passing through it are genuine. Since a counting machine is programmed
to read the specific "sequence code" assigned to it, ballots which bear a "sequence code"
assigned to another machine/municipality, even if said ballots were genuine, will be rejected
by the machine.
"Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had the same problem of
rejected ballots. However, since the machine operators were not aware that one of the
reasons for rejection of ballots is the use of wrong "sequence code", they failed to determine
whether the cause for rejection of ballots for said municipalities was the same as that for the
municipality of Talipao.
"In the case of misaligned ovals, the counting machine will not reject the ballot because all
the security features, such as "sequence code", are present in the ballot, however, since the
oval is misaligned or not placed in its proper position, the machine will credit the shaded oval
for the position where the machine is programmed to "read" the oval. Thus, instead of
rejecting the ballot, the machine will credit the votes of a candidate in favor of his opponent,
or in the adjacent space where the oval should be properly placed.
"It could not be determined if the other municipalities also had the same technical error in
their official ballots since the "misaligned ovals" were discovered only after members of the
Board of Election Inspectors of the Municipality of Pata complained that their votes were not
reflected in the printout of the election returns.
"As the extent or coverage of the technical errors could not be determined, the TF Head, upon
consultation with his technical staff, was of the belief that it would be more prudent to count
the ballots manually than to proceed with an automated system which will result in an
erroneous count.
"The TF Head thus ordered the indefinite suspension of counting of ballots until such time as
the Commission shall have resolved the petition/position papers to be submitted by the
parties. The TF Head and his staff returned to Camp General Bautista to await the submission
of the position papers of the parties concerned.chanroblesvirtualawlibrary
"Upon receipt of the position papers of the parties, the TF Head faxed the same in the evening
of May 12, 1998, together with his handwritten recommendation to proceed with a manual
count. Attached are copies of the recommendations of the TF Head (Annex "1"), and the

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position papers of the Philippine Marines and Philippine National Police (Annex "2"), LAKASNUCD Tan Wing Annex (Annex "3"), Lakas-NUCD Loong Wing (Annex "4"), LAKAS-NUCD-MNLF
Wing (Annex "5") and LAMMP (Annex "6"). Said recommendations and position papers were
the bases for the promulgation of COMELEC Minute Resolution No. 98-1750 dated May 13,
1998 (Annex "7"), directing, among other things, that the ballots and counting machines be
transported by C130 to Manila for both automated and manual operations.
"Minute Resolution No. 98-1750 was received by the TF Head through fax on or about 5:30 in
the evening of May 13, 1998. Copies were then served through personal delivery to the heads
of the political parties, with notice to them that another conference will be conducted at the
3rd Marine Brigade on May 14, 1998 at 9:00 oclock in the morning, this time, with Lt. General
Joselin Nazareno, then AFP Commander, Southern Command. Attached is a copy of said notice
(Annex "8") bearing the signatures of candidates Tan (Annex "8-A") and Loong (Annex "8-B"),
and the representatives of candidates Tulawie (Annex "8-C") and Jikiri (Annex "8-D").
"On May 14, 1998, the TF Head presided over said conference in the presence of the heads of
the political parties of Sulu, together with their counsel, including Lt. Gen. Nazareno, Brig.
Gen. Subala, representatives of the NAMFREL, media and the public.
"After hearing the sides of all parties concerned, including that of NAMFREL, the procedure by
which the ballots and counting machines were to be transported to Manila was finalized, with
each political party authorized to send at least one (1) escort/watcher for every municipality to
accompany the ballot boxes and counting machines from the counting center at the Sulu State
College to the Sulu Airport up to the PICC, where the COMELEC was then conducting its
Senatorial Canvass. There being four parties, a total of seventy-two (72) escorts/watchers
accompanied the ballots and counting machines.
"Two C130s left Sulu on May 15, 1998 to transport all the ballot boxes and counting machines,
accompanied by all the authorized escorts. Said ballots boxes reached the PICC on the same
day, with all the escorts/watchers allowed to station themselves at the ballot box storage
area. On May 17, 1998, another C130 left Sulu to ferry the members of the board of
canvassers."cralaw virtua1aw library
Fifth. The evidence is clear that the integrity of the local ballots was safeguarded when they
were transferred from Sulu to Manila and when they were manually counted.
As shown by the Tolentino memorandum, representatives of the political parties escorted the
transfer of ballots from Sulu to PICC. Indeed, in his May 14, 1992 letter to Atty. Tolentino, Jr.,
petitioner Tupay Loong himself submitted the names of his representatives who would
accompany the ballot boxes and other election paraphernalia, viz: 20
"Dear Atty. Tolentino:jgc:chanrobles.com.ph
"Submitted herewith are the names of escort(s) to accompany the ballot boxes and other
election paraphernalia to be transported to COMELEC, Manila, to wit:chanrob1es virtual 1aw
library
1 Jolo Joseph Lu

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2. Patikul Fathie B. Loong

3. Indanan Dixon Jadi
4. Siasi Jamal Ismael
5. K. Kaluang Enjimar Abam
6. Pata Marvin Hassan
7. Parang Siyang Loong
8. Pangutaran Hji. Nasser Loong
9. Marunggas Taib Mangkabong
10. Luuk Jun Arbison
11. Pandami Orkan Osman
12. Tongkil Usman Sahidulla
13. Tapul Alphawanis Tupay
14. Lugus Patta Alih
15. Maimbong Mike Bangahan
16. P. Estino Yasir Ibba
17. Panamao Hamba Loong
18. Talipao Ismael Sali
"Hoping for your kind and (sic) consideration for approval on this matter.
Thank you.
Very truly yours,
(Sgd.) Tupay T. Loong
(Sgd.) Asani S. Tamang"
The ballot boxes were consistently under the watchful eyes of the parties representatives.
They were placed in an open space at the PICC. The watchers stationed themselves some five
(5) meters away from the ballot boxes. They watched 24 hours a day and slept at the PICC.
21

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The parties watchers again accompanied the transfer of the ballot boxes from PICC to the
public schools of Pasay City where the ballots were counted. After the counting, they once
more escorted the return of the ballot boxes to PICC. 22
In fine, petitioners charge that the ballots could have been tampered with before the manual
counting is totally unfounded.
Sixth. The evidence also reveals that the result of the manual count is reliable.
It bears stressing that the ballots used in the case at bar were specially made to suit an
automated election. The ballots were uncomplicated. They had fairly large ovals opposite the
names of candidates. A voter needed only to check the oval opposite the name of his
candidate. When the COMELEC ordered a manual count of the votes, it issued special rules as
the counting involved a different kind of ballot, albeit, more simple ballots. The Omnibus
Election Code rules on appreciation of ballots cannot apply for they only apply to elections
where the names of candidates are handwritten in the ballots. The rules were spelled out in
Minute Resolution 98-1798, viz: 23
"In the matter of the Memorandum dated 17 May 1998 of Executive Director Resurreccion Z.
Borra, re procedure of the counting of votes for Sulu for the convening of the Board of Election
Inspectors, the Municipal Board of Canvassers and the Provincial Board of Canvassers on May,
18, 1998 at 9:00 a.m. at the Philippine International Convention Center (PICC),
RESOLVED to approve the following procedure for the counting of votes for Sulu at the
PICC:chanrob1es virtual 1aw library
I. Common Provisions:chanrob1es virtual 1aw library
1. Open the ballot box, retrieve the Minutes of Voting and the uncounted ballots or the
envelope containing the counted ballots as the case may be;
2. Segregate the national ballots from the local ballots;
3. Count the number of pieces of both the national and local ballots and compare the same
with the number of votes who actually voted as stated in the Minutes of Voting:chanrob1es
virtual 1aw library
If there is no Minutes of Voting, refer to the Voting Records at the back of the VRRs to
determine the number of voters who actually voted.
If there are more ballots than the number of voters who actually voted, the poll clerk shall
draw out as many local and national ballots as may be equal to the excess and place them in
the envelope for excess ballots.
II. Counting of Votes
A. National Ballots:chanrob1es virtual 1aw library
1. If the national ballots have already been counted, return the same inside the envelope for

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counted ballots, reseal and place the envelope inside the ballot box;
2. If the national ballots have not yet been counted, place them inside an envelope and give
the envelope through a liaison officer to the machine operator concerned for counting and
printing of the election returns;
3. The machine operator shall affix his signature and thumbmark thereon, and return the
same to the members of the BEI concerned for their signatures and thumbmarks;
4. The said returns shall then be placed in corresponding envelopes for distribution;
B. Local Ballots:chanrob1es virtual 1aw library
1. Group the local ballots in piles of fifty (50);
2. The Chairman shall read the votes while the poll clerk and the third member shall
simultaneously accomplish the election returns and the tally board respectively.
If the voters shaded more ovals than the number of positions to be voted for, no vote shall be
counted in favor of any candidate.
3. After all the local ballots shall have been manually counted, the same shall be given to the
machine operator concerned for counting by the scanning machine. The machine operator
shall then save the results in a diskette and print out the election returns for COMELEC
reference.
4. The BEI shall accomplish the certification portion of the election returns and announce the
results;
5. Place the election returns in their respective envelopes and distribute them accordingly;
6. Return all pertinent election documents and paraphernalia inside the ballot box.
III. Consolidation of Results
A. National Ballots
1. The results of the counting for the national ballots for each municipality shall be
consolidated by using the ERs of the automated election system;
2. After the consolidation, the Machine Operator shall print the certificate of canvass by
municipality and statement of votes by precinct.
3. To consolidate the provincial results, the MO shall load all the diskettes used in the scanner
to the ERs;
4. The MO shall print the provincial certificate of canvass and the SOV by municipality;
5. In case there is system failure in the counting and/or consolidation of the results, the

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POBC/MOBC shall revert to manual consolidation.

B. Local Ballots
1. The consolidation of votes shall be done manually by the Provincial/Municipal Board of
Canvassers;
2. The proclamation of winning candidates shall be based on the manual consolidation.
RESOLVED, moreover, that the pertinent provisions of COMELEC Resolution Nos. 2971 and
3030 shall apply.
Let the Executive Director implement this resolution."
As aforestated, five (5) Special Boards were initially created under Atty. Tolentino, Jr. to
undertake the manual counting, 24 viz:jgc:chanrobles.com.ph
"a) Atty. Mamasapunod M. Aguam
Ms. Gloria Fernandez
Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jocelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Teresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena"
Later, the COMELEC utilized the services of 600 public school teachers from Pasay City to do
the manual counting. Five (5) elementary schools served as the venues of the counting,

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viz:25cralaw:red
"1. Gotamco Elementary School, Gotamco Street, Pasay City for the municipalities of
Indanan, Pangutaran, Panglima Tahil, Maimbung;
"2. Zamora Elementary School, Zamora Street, Pasay City for the municipalities of Jolo,
Talipao, Panglima Estino, and Tapul;
"3. Epifanio Elementary School, Tramo Street, Pasay City for the municipalities of Parang,
Lugus, Panamao;
"4. Burgos Elementary School, Burgos Street, Pasay City for the municipalities of Luuk and
Tongkil;
"5. Palma Elementary School for the municipalities of Siasi and Kalingalang Caluang."cralaw
virtua1aw library
From beginning to end, the manual counting was done with the watchers of the parties
concerned in attendance. Thereafter, the certificates of canvass were prepared and signed by
the City/Municipal Board of Canvassers composed of the Chairman, Vice-Chairman, and
Secretary. They were also signed by the parties watchers. 26
The correctness of the manual count cannot therefore be doubted. There was no need for an
expert to count the votes. The naked eye could see the check marks opposite the big ovals.
Indeed, nobody complained that the votes could not be read and counted. The COMELEC
representatives had no difficulty counting the votes. The 600 public school teachers of Pasay
City had no difficulty. The watchers of the parties had no difficulty. Petitioner did not object to
the rules on manual count on the ground that the ballots cannot be manually counted. Indeed,
in his original Petition, petitioner did not complain that the local ballots could not be counted
by a layman. Neither did the intervenor complain in his petition for intervention. The allegation
that it will take a trained eye to read the ballots is more imagined than real.
This is not all. As private respondent Tan alleged, the manual count could not have been
manipulated in his favor because the results show that most of his political opponents won.
Thus, "the official results show that the two congressional seats in Sulu were won by
Congressman Hussin Amin of the LAKAS-MNLF Wing for the 1st District and Congressman
Asani Tammang of the LAKAS-Loong Wing for the 2nd District. In the provincial level, of the
eight (8) seats for the Sangguniang Panlalawigan, two (2) were won by the camp of
respondent Tan; three (3) by the camp of petitioner Loong; two (2) by the MNLF; and one (1)
by LAMMP. In the mayoral race, seven (7) out of eighteen (18) victorious municipal mayors
were identified with respondent Tan; four (4) with petitioner Loong; three (3) with the MNLF;
two (2) with LAMMP and one (1) with REPORMA." 27 There is logic to private respondent Tans
contention that if the manual count was tampered, his candidates would not have miserably
lost.
Seventh. We further hold that petitioner cannot insist on automated counting under R.A. No.
8436 after the machines misread or rejected the local ballots in five (5) municipalities in Sulu.
Section 9 of R.A. No. 8436 provides:jgc:chanrobles.com.ph

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"SECTION 9. Systems Breakdown in the Counting Center. In the event of a systems

breakdown of all assigned machines in the counting center, the Commission shall use any
available machine or any component thereof from another city/municipality upon approval of
the Commission En Banc or any of its divisions.chanroblesvirtual|awlibrary
The transfer of such machines or any component thereof shall be undertaken in the presence
of representatives of political parties and citizens arm of the Commission who shall be notified
by the election officer of such transfer.
There is a systems breakdown in the counting center when the machine fails to read the
ballots or fails to store/save results or fails to print the results after it has read the ballots; or
when the computer fails to consolidate election results/reports or fails to print election resultsreports after consolidation."cralaw virtua1aw library
As the facts show, it was inutile for the COMELEC to use other machines to count the local
votes in Sulu. The errors in counting were due to the misprinting of ovals and the use of
wrong sequence codes in the local ballots. The errors were not machine-related. Needless to
state, to grant petitioners prayer to continue the machine count of the local ballots will
certainly result in an erroneous count and subvert the will of the electorate.
Eight. In enacting R.A. No. 8436, Congress obviously failed to provide a remedy where the
error in counting is not machine-related for human foresight is not all-seeing. We hold,
however, that the vacuum in the law cannot prevent the COMELEC from levitating above the
problem. Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power
"to enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall." Undoubtedly, the text and intent of this provision
is to give COMELEC all the necessary and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful, and credible elections. Congruent to this intent, this
Court has not been niggardly in defining the parameters of powers of COMELEC in the conduct
of our elections. Thus, we held in Sumulong v. COMELEC: 28
"Politics is a practical matter, and political questions must be dealt with realistically not
from the standpoint of pure theory. The Commission on Elections, because of its fact-finding
facilities, its contacts with political strategists, and its knowledge derived from actual
experience in dealing with political controversies, is in a peculiarly advantageous position to
decide complex political questions . . . There are no ready made formulas for solving public
problems. Time and experience are necessary to evolve patterns that will serve the ends of
good government. In the matter of the administration of laws relative to the conduct of
election, . . . we must not by any excessive zeal take away from the Commission on Elections
the initiative which by constitutional and legal mandates properly belongs to it."cralaw
virtua1aw library
In the case at bar, the COMELEC order for a manual count was not only reasonable. It was the
only way to count the decisive local votes in the six (6) municipalities of Pata, Talipao, Siasi,
Tudanan, Tapul and Jolo. The bottom line is that by means of the manual count, the will of the
voters of Sulu was honestly determined. We cannot kick away the will of the people by giving
a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when machine
count does not work. Counting is part and parcel of the conduct of an election which is under
the control and supervision of the COMELEC. It ought to be self-evident that the Constitution

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did not envision a COMELEC that cannot count the result of an election.
Ninth. Our elections are not conducted under laboratory conditions. In running for public
offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make
snap judgments to meet unforeseen circumstances that threaten to subvert the will of our
voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be
debatable. We cannot, however, engage in a swivel chair criticism of these actions often taken
under very difficult circumstances. Even more, we cannot order a special election unless
demanded by exceptional circumstances. Thus, the plea for this Court to call a special election
for the governorship of Sulu is completely off-line. The plea can only be grounded on failure of
election. Section 6 of the Omnibus Election Code tells us when there is a failure of election,
viz:jgc:chanrobles.com.ph
"SECTION 6. Failure of Election. If, on account of force majeure, terrorism, fraud, or other
analogous causes, the election in any polling place has not been held on the date fixed, or had
been suspended before the hour fixed by law for the closing of the voting or after the voting
and during the preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such cases the failure
or suspension of election would affect the result of the election, the Commission shall on the
basis of a verified petition by any interested party and after due notice and hearing, call for
the holding or continuation of the election, not held, suspended or which resulted in a failure
to elect but not later than thirty days after the cessation of the cause of such postponement or
suspension of the election or failure to elect."cralaw virtua1aw library
To begin with, the plea for a special election must be addressed to the COMELEC and not to
this Court. Section 6 of the Omnibus Election Code should be read in relation to Section 4 of
R.A. No. 7166 which provides:jgc:chanrobles.com.ph
"SECTION 4. Postponement, Failure of Election and Special Elections. The postponement,
declaration of failure of elections and the calling of special elections as provided in Sections 5,
6, and 7 of the Omnibus Election Code shall be decided by the Commission en banc by a
majority vote of its members. The causes for the declaration of a failure of election may occur
before or after casting of votes or on the day of the election."cralaw virtua1aw library
The grounds for failure of election force majeure, terrorism, fraud or other analogous
causes clearly involve questions of fact. It is for this reason that they can only be
determined by the COMELEC en banc after due notice and hearing to the parties. In the case
at bar, petitioner never asked the COMELEC en banc to call for a special election in Sulu. Even
in his original petition with this Court, petitioner did not pray for a special election. His plea for
a special election is a mere afterthought. Too late in the day and too unprocedural. Worse, the
grounds for failure of election are inexistent. The records show that the voters of Sulu were
able to cast their votes freely and fairly. Their votes were counted correctly, albeit manually.
The people have spoken. Their sovereign will has to be obeyed.
There is another reason why a special election cannot be ordered by this Court. To hold a
special election only for the position of Governor will be discriminatory and will violate the
right of private respondent to equal protection of the law. The records show that all elected
officials in Sulu have been proclaimed and are now discharging their powers and duties. Thus,
two (2) congressmen, a vice-governor, eight (8) members of the Sangguniang Panlalawigan

Page 430 of 492

and eighteen (18) mayors, numerous vice-mayors and municipal councilors are now servicing
in their official capacities. These officials were proclaimed on the basis of the same manually
counted votes of Sulu. If manual counting is illegal, their assumption of office cannot also be
countenanced. Private respondents election cannot be singled out as invalid for alike cannot
be treated unalike.
A final word. Our decision merely reinforces our collective efforts to endow COMELEC with
enough power to hold free, honest, orderly, and credible elections. A quick flashback of its
history is necessary lest our efforts be lost in the labyrinth of time.
The COMELEC was organized under Commonwealth Act No. 607 enacted on August 22, 1940.
The power to enforce election laws was originally vested in the President and exercised
through the Department of Interior. According to Dean Sinco, 29 the view ultimately emerged
that an independent body could better protect the right of suffrage of our people. Hence, the
enforcement of our election laws, while an executive power, was transferred to the COMELEC.
From a statutory creation, the COMELEC was transformed to a constitutional body by virtue of
the 1940 amendments to the 1935 Constitution which took effect on December 2, 1940.
COMELEC was generously granted the power to "have exclusive charge of the enforcement
and administration of all laws relative to the conduct of elections . . ." 30
Then came the 1973 Constitution. It further broadened the powers of COMELEC by making it
the sole judge of all election contests relating to the election, returns and qualifications of
members of the national legislature and elective provincial and city officials. 31 In fine, the
COMELEC was given judicial power aside from its traditional administrative and executive
functions.
The 1987 Constitution quickened this trend of strengthening the COMELEC. Today, COMELEC
enforces and administers all laws and regulations relative to the conduct of elections,
plebiscites, initiatives, referenda and recalls. Election contests involving regional, provincial
and city elective officials are under its exclusive original jurisdiction. All contests involving
elective municipal and barangay officials are under its appellate jurisdiction. 32
Our decisions have been in cadence with the movement towards empowering the COMELEC in
order that it can more effectively perform its duty of safeguarding the sanctity of our elections.
In Cauton v. COMELEC, 33 we laid down this liberal approach, viz:jgc:chanrobles.com.ph
"x

"The purpose of the Revised Election Code is to protect the integrity of elections and to
suppress all evils that may violate its purity and defeat the will of the voters. The purity of the
elections is one of the most fundamental requisites of popular government. The Commission
on Elections, by constitutional mandate, must do everything in its power to secure a fair and
honest canvass of the votes cast in the elections. In the performance of its duties, the
Commission must be given a considerable latitude in adopting means and methods that will
insure the accomplishment of the great objective for which it was created to promote free,
orderly, and honest elections. The choice of means taken by the Commission on Elections,
unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered
with."cralaw virtua1aw library

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In Pacis v. COMELEC, 34 we reiterated the guiding principle that "clean elections control the
appropriateness of the remedy." The dissent, for all its depth, is out of step with this
movement. It condemns the COMELEC for exercising its discretion to resort to manual count
when this was its only viable alternative. It would set aside the results of the manual count
even when the results are free from fraud and irregularity. Worse, it would set aside the
judgment of the people electing the private respondent as Governor. Upholding the
sovereignty of the people is what democracy is all about. When the sovereignty of the people
expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it
should do everything to have that sovereignty obeyed by all. Well done is always better than
well said.chanrobles virtual lawlibrary
IN VIEW WHEREOF, the petition of Tupay Loong and the petition in intervention of Yusop Jikiri
are dismissed, there being no showing that public respondent gravely abused its discretion in
issuing Minute Resolution Nos. 98-1748, 98-1750, 98-1796 and 98-1798. Our status quo
order of June 23, 1998 is lifted. No costs.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing, Purisima,
Buena and Gonzaga-Reyes, JJ., concur.
Pardo, J., took no part.
Santiago, J., took no part; Did not participate in the deliberation.
Separate Opinions
PANGANIBAN, J., dissenting:chanrob1es virtual 1aw library
With due respect, I dissent. I submit that the Commission on Elections (Comelec) blatantly
violated its express and specific statutory mandate to conduct automated elections in the
Province of Sulu without any adequate legal or factual bases. Specifically, the Comelec gravely
abused its discretion in the following acts:chanrob1es virtual 1aw library
1. In peremptorily stopping the ongoing automated counting of ballots in the Municipality of
Pata and in the entire Province of Sulu on the flimsy ground that three ballots for a mayoralty
candidate in said municipality were not tallied by the counting machine assigned to said town
2. In changing the venue and the mode of counting from automated to manual, due to alleged
imminent danger of violence
3. In violating its own Resolution ordering both an automated count and a parallel manual
count, by actually holding only a manual count, without giving any reason for completely
abandoning the automated system which was already 65 percent complete in the entire
province
4. In counting and appreciating the automated ballots with the use of the rules peculiar to

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manual elections, not to the automated election system; that is, the Comelec manually tallied
the ballots in a way different from how the automated machines would have counted them;
hence, the results as manually appreciated substantially differed from the machine-generated
ones
5. In issuing without due process of law, its assailed Minute Resolutions relating to the change
in the manner and venue or counting
Let me explain each of these grounds.
1. Stoppage of Automated Count
Legally and Factually Flawed
To begin with, there is absolutely no dispute that Congress required the Comelec to conduct
automated, not manual, elections in the Autonomous Region in Muslim Mindanao (ARMM),
including the Province of Sulu, during the May 11, 1998 elections. Republic Act (RA) 8436
explicitly mandates the Comelec to "use an automated election system . . . for the process of
voting, counting of votes and canvassing/consolidation of results" 1 in the ARMM.
However, contrary to its above clear mandate, the Comelec abandoned the ongoing
automated counting of votes in Sulu during the last elections and substituted it mid-stream
with the manual system. This reversion to the manual election system is nowhere authorized
in the same or any other law. Clearly, the poll body has no legislative power to modify, much
less to contravene, the law. 2 Neither can it assume powers not granted to it either by the
Constitution or by Congress.chanrobles virtual lawlibrary
On the other hand, the majority justifies this reversion to the manual method as a valid
exercise of the Comelecs discretion to ensure a free, orderly, honest, and credible electoral
exercise, stressing that this Courts ruling is "in cadence with the movement towards
empowering the Comelec in order that it can more effectively perform its duty of safeguarding
the sanctity of our elections." I respectfully say, however, that such "movement" should be
canalized by the proposition that the Comelec may exercise its discretion only in accordance
with law and never in violation of it.
In any event, let me delve deeper into the factual and legal antecedents which led to the
stoppage of the automated count, if only to demonstrate the utter lack of prudence in the
Comelecs actions.
Factual Antecedents of
Stoppage of Count
About 6:00 a.m. on May 12, 1998, the day after the election, while the automated counting of
the ballots was being conducted at the Sulu State College, some election inspectors as well as
watchers called the attention of the Comelec Task Force head in Sulu, Atty. Jose Tolentino Jr.,
to allegedly patent discrepancies between the printed election returns and the actual votes
cast for the mayoralty candidates in the Municipality of Pata. On the spot, Atty. Tolentino
picked out three local ballots that had already been counted. He noticed that while they

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contained votes for a certain mayoralty candidate, such votes were not credited in the latters
favor in the precinct election return, which showed zero (0) vote for that candidate (Mr. Anton
Burahan). Atty. Tolentino then took it upon himself to immediately order the suspension of the
automated counting of the ballots from Pata. Tracing the error to misprinted ballots, he
forthwith ordered a province-wide suspension of the automated count, on the suspension that
the printing defect was prevalent province-wide. At that point, about 65 percent of the ballots
cast in Sulu were already machine-counted. intervenor Jikiri alleged he was at the time
leading the count.
I believe that Atty. Tolentino acted with grave abuse of discretion. First, he had no legal
authority to order even a temporary stoppage of the counting. During the Oral Argument on
September 25, 1998, he candidly admitted that he had no statutory or even regulatory basis
for his action. 3 Second, the verbal manifestation of a BEI member or a watcher that a vote
for a certain candidate was not reflected in the election return conferred no legal authority
upon the election official to examine the ballots personally. Third, granting that Atty. Tolentino
had such authority, the factual basis of his exercise of discretion was sorely insufficient. He
saw only three (3) ballots out of about 200 from a single precinct in Pata, which had 27
precincts; noted that the votes for a certain mayoralty candidate, which where indicated in the
three ballots, were not reflected on the election return, which instead printed zero vote for
such candidate; then, without much ado, ordered the stoppage of the counting of the rest of
the ballots from Pata. At the time, only 13 ballot boxes had been, and 14 more remained to
be, counted. Under RA 8436, it would have taken only one (1) minute for the counting
machine to process 100 to 150 ballots. 4 Thus, it would not have taken very long to finish the
count for the entire municipality.
Atty. Tolentino did not even try to get the aggregate votes cast in the municipality for each
mayoral candidate, in order to see if three or even 200 votes would spell a material difference
in the result. Even under the manual election system, election cases are heard on the
assumption that the protested ballots or returns would, if validated, change the election
results. By analogy, the same logic should apply to automated elections. But Atty. Tolentino
immediately assumed that the three ballots would be determinative of the election results in
the municipality, where about 5,400 5 votes had been cast. Not even the manual election
system allows a suspension of the entire counting process on the mere allegation that a few
ballots or votes for one candidate in one precinct are questionable.
Doctrinally, it would be imprudent, even dangerous, to discard the automated system
cavalierly and thereafter resort to the manual count on the flimsy basis that a few ballots were
allegedly miscounted. Such holding would give losing parties and candidates a convenient
device to scuttle the automated system by the simple expedient of alleging that a few ballots
were improperly counted by the machine. It would give them a convenient excuse to revive
and use an antiquated and fraud-ridden electoral method and thus lead to a prolonged
counting and canvassing, the very evil sought to be remedied by RA 8436.
Remedy in Cases of False Returns
and Questionable Ballots
Moreover, since verbal complaints of incorrect tallying by the machine were not a valid reason
to suspend the counting, the charges made by the candidates watchers should have prompted

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Atty. Tolentino to require the complaining parties to file their protests for proper action in
accordance with law and the Comelec rules. During the canvassing (which, under the
automated system, is also done separately from the counting), the adversely affected parties
could have objected to the inclusion of the questioned election return and followed, by
analogy, the procedure for a pre-proclamation controversy laid down in Section 243 of the
OEC, as amended by Section 20 of RA 7166. Had that recourse failed, the aggrieved
candidates remedy was an election protest. Suspending and finally stopping the automated
count were completely uncalled for. There simply was no basis for it.
Making matters worse, Atty. Tolentino directed the suspension of the automated count in all
the 18 municipalities of Sulu, even though the alleged errors were reportedly discovered in
partial returns from only six (6) municipalities Pata, Talipao, Siasi, Indanan, Tapul and Jolo.
If only on this basis, the assailed Comelec Minute Resolutions authorizing the manual count
must be set aside and declared null and void for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction. 6 But there are even more odious
grounds, as I will now show.
2. No Imminent
Danger of Violence
The ponencia justifies the Comelecs precipitate shift to manual counting "in view of the fast
deteriorating peace and order situation caused by the delay in the counting of the votes." It
pays heed to the unsubstantiated report of Atty. Tolentino, but totally ignores the PNP
provincial directors Comprehensive Report on the Sulu Election 7 dated May 18, 1998, which
was submitted to this Court by Private Respondent Tan. Said Report makes no mention of or
reference to any incident that would substantiate Tolentinos statement. Rather, it bares the
relative tranquillity of the recent electoral process in the province, viz.:jgc:chanrobles.com.ph
"1. The conduct of election in the province of Sulu, by her own standard, was generally
peaceful sans some isolated cases of mortar shelling and failure of voting in some barangays
of Panamao, ballot boxes damaged resulting from pump boat capsizing in Tongkil and failure
of conducting elections in two precincts is Siasi, all of Sulu. Automated counting of the ballots,
however, was stopped the day after the election when inconsistency in the print out of results
were discovered in the counting machine assigned to Pata municipality. This prompted the
COMELEC to order the counting to be done in Manila.
x

SIGNIFICANT INCIDENTS
"Voting in the areas assigned to Sulu PPO was generally peaceful and orderly except for some
minor hitches. In Tongkil, three ballot boxes fell into the sea when the pump boat carrying
them capsized. There was also allegation of ballot snatching threat and this matter is being
investigated by this PPO. In Indanan, there was a minor misunderstanding between the
Ahajan brothers of Brgy. Panabuan but this was immediately resolved. In Jolo, particularly at
the polling places at Hadji Butu School of Arts and Trade there was a short commotion among

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followers of candidates.
"In the areas covered by the 3rd MBde, violence erupted only in Talipao, and Panamao.
Reportedly, there [was] gunfire heard in the outskirts of Tapul but neither opposing group
reacted.
x

3. ASSESSMENT
"The conduct of election in Sulu was generally peaceful compared with the previous elections.
Political rivalry was less intense; the extent of cheating was also less; and a good number of
registered voters actually voted. This phenomenon may have been brought about by the fact
that since there were four sets of candidates, the partisan armed groups were thinly
distributed, meaning the more number of groupings, the lesser is the threat of
violence."cralaw virtua1aw library
Even assuming arguendo that imminent violence threatened the counting center, such
situation would justify only the transfer of the counting venue. Even then, the concurrence of
the majority of the watchers for such transfer is still required under the OEC. It does not
appear on record that the consent of the watchers was ever sought, not to say given. On the
contrary, Minute Resolution No. 98-1750 (dated May 13, 1998), which ordered the change of
venue for the counting, was issued ex parte by the Comelec en banc, without any petition,
recommendation or proper investigation for said purpose. Such arbitrary and peremptory
issuance, in violation of law, again amounted to an abusive exercise of discretion.
But, even granting arguendo that the transfer of the counting venue was valid, the
abandonment of the automated count was definitely not a necessary legal consequence
thereof. In other words, only the venue could have been changed, but not the method of
counting. If the Comelec had conducted an automated count in Manila, that may even be
arguably sustained. I repeat, the alleged imminent threat of violence did not at all justify the
manualization of the counting process; if at all, it only authorized a change of venue of the
automated count.
3. No Justification to
Abandon Automated Count
Please note that the Comelec, in its Minute Resolution 98-1796 8 dated May 15, 1998, actually
resolved "to conduct a parallel manual counting [i]n all 18 municipalities of Sulu . . ." 9
Originally, it would appear that the Commission intended to conduct in Manila an automated
count first, and then a parallel manual count. Hence, it ordered the air-lifting to its head office
of all the relevant election paraphernalia, including the automated machines.
However, the Comelec did not obey its own Resolution. Worse, it did not explain why this vital
provision requiring an automated count was not implemented, and why only a manual count
was conducted. I could have conceded the propriety of a parallel manual count which
plainly means that both automated and manual counts were to be performed. Although not

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expressly sanctioned by law, such parallel manual count may arguably be regarded as falling
within the residual regulatory authority of the Comelec. Unfortunately and inexplicably,
however, only a manual count was done; the Resolution ordering an automated count was
simply ignored without the Comelec giving any reason therefor.
To repeat, there was no reason at all to completely abandon the automated count. The
Comelec had a duty to comply with the mandate of Congress. Yet, for unstated and I submit,
unexplainable reasons, it simply substituted the will of Congress with its own arbitrary action.
Clearly, the Comelec acted without or in excess of its jurisdiction.
4. Rules for Manual Elections Different from
Those for the Automated System
I would like to emphasize that the resort to a manual appreciation of the ballots is precluded
by the basic features of the automated election system, 10 which requires minimum human
intervention, the use of a special quality of ballot paper, the use of security codes, the mere
shading of an oval corresponding to the name of the candidate voted for, and the mechanized
discrimination of genuine from spurious ballots, as well as rejection of fake or counterfeit
ones. The automated system takes away the discretion of the boards of election inspectors
(BEI) in appreciating ballots. 11
A simple cursory reading of the rules 12 12a 12b laid down in the Omnibus Election Code
(OEC) for the appreciation and counting of ballots cast in a manual election easily discloses
that they are inappropriate, if not downright useless, to the proper appreciation and reading of
the ballots used in the automated system, wherein the names of the candidates are printed on
the ballots beforehand and are not handwritten by the voters themselves, and wherein each
name has a corresponding oval which must have its own exact location on the ballot,
conforming to the design that has been programmed in the counting machine. In other words,
the automated election system has peculiar features designed for electronic, not manual,
verification.chanrobles.com : virtual law library
Under the automated system, the machines are programmed to recognize or read only the
presence of carbon in the ovals. To erase a vote, in fact, not advisable (the voter may, under
Comelec rules, ask for a new ballot), because some carbon content may be left in the oval that
would still be recognized and tallied by the machine. Human handling of the automated ballots
will also make it all too easy to nullify the voters will. A blank ballot (in which the voter
intentionally refrained from voting for any candidate) can be easily pencil-marked in favor of a
certain candidate. Or a vote can be facilely nullified by simply marking the oval of another
candidate for the same office. The point is: human handling of automated ballots is fraught
with dangers to the integrity of the votes therein; it actually makes the political exercise more
vulnerable to electoral fraud.
To be more concrete and specific, during the physical examination of the ballots used in
several precincts in Pata and Jolo, conducted pursuant to the Courts Resolution dated
February 9, 1999, as well as in the operation of the counting machines to which these ballots
were fed, 13 there were significant discrepancies between the results of the manual count, as
reflected in the official election returns, and those of the machine count. 14 Such were
brought about by the following:chanrob1es virtual 1aw library

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1. Ovals that were ink-shaded were validated by the BEIs pursuant to the OEC 15 and the
Comelec rules. 16 On the other hand, these were ignored by the machines, which could detect
only ovals with sufficient carbon content.
2. Some ovals that were only partly shaded were not read by the machines, but were counted
by the BEI, pursuant to said Comelec rules.
3. In some ballots, several ovals for candidates for one office were shaded but, except for one,
also crossed out or marked with an "X." The counting machine invalidated these votes,
because it could not recognize the difference between an "X" mark and any other mark on the
oval. All it could "read" was the carbon content, and due to the presence of carbon on more
than one oval for a single office, the machine concluded that there was an "over-vote." Under
the automated program, an "over-vote" is considered "no-vote." However, the BEIs counted
the remaining uncrossed vote, considering it the voters true and valid vote, pursuant to the
OEC rules. 17
4. Ballots on which the voter manually wrote the candidates names were considered marked
ballots by some BEIs, pursuant to the OEC. But the machines counted the votes therein and
ignored such writings, as long as they were not found inside the ovals.
I could cite several other examples of why the manual count was not reflective of the machine
count. Inspite of the ponencias plain admission that the OEC Rules on the appreciation of
ballots "only apply to elections where the names of candidates are handwritten in the ballots,"
the stark fact is that such Rules were actually (and erroneously) used here.
Indeed, the use of inappropriate Rules by the BEIs necessarily begot a misappreciation of the
ballots. Such misappreciation, in turn, led to a substantial difference in the election results, as
yielded by the manual and the automated counts. In sum, the manual count was not reflective
of the automated count.
This Courts Ruling
Sets Back Election Modernization
It must be borne in mind that, verily, the consistency and the accuracy of the machine count
were the underlying factors in adopting the automated system of election. Precisely, human
error, inconsistency and fraud were intended to be eliminated in the automated system. In
fact, the BEIs had no role in the counting and canvassing. Thus, the resort to a manual count
under the facts of this case was antithetical to the rationale and intent behind RA 8436. The
very purpose of the law was defeated by the cumbersome, inaccurate and error-prone manual
system of counting automated votes.
Indeed, to uphold the results of the manual count would set a dangerous precedent. It would
be tantamount to validating the arbitrary and illegal acts of the Comelec. It would provide the
candidates a degenerated means to delay the proclamation of winners. It would effectively
nullify the purpose of delivering speedy and accurate election results and thus defeat the
election modernization ordained by Congress. Definitely, it would critically set back efforts at

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eliminating electoral fraud. To paraphrase then Vice President, now President, Joseph E.
Estrada, the automated election system, which was prescribed as the "cure for electoral
fraud," may, in the imprudent hands of an indiscreet poll body, be truly "worse than the
disease."cralaw virtua1aw library
5. Lack of Due Process in Issuance
of Assailed Comelec Resolutions
The ponencia, citing the Tolentino Memorandum, states that Petitioner Loong and Intervenor
Jikiri "were given every opportunity to oppose the manual count of the local ballots in Sulu."
Hence, contrary to their allegations, they were not denied due process.
Again, I beg to disagree. Some factual antecedents have to be brought up to set the record
straight.
The meeting among the candidates and other parties concerned, which Atty. Tolentino
convened in the early afternoon of May 12, 1998, was already post facto. The talking points in
that meeting related to the alleged incorrect reading of ballots for Pata, Sulu. They did not
discuss the issue of whether to stop the tallying because much earlier in the morning of that
same day, Atty. Tolentino had already suspended the counting in that municipality and,
shortly thereafter, in the entire province. Furthermore, the group that convened did not yet
take up the alleged rejection by the machines of ballots in other municipalities, since the
reports thereon came only after the said meeting. And such stoppage, as I discussed earlier,
was based merely on the verbal complaints of some watchers and members of the BEI and
Atty. Tolentinos personal, albeit unauthorized, examination of three ballots from one precinct,
which showed that votes for a certain mayoralty candidate were not reflected in the election
return.
Immediately after that meeting adjourned, Private Respondent Abdusakur Tan sent his
petition 18 directly to the Comelec, requesting the immediate suspension of the automated
count and the holding of a manual count in the entire Province of Sulu. In response, the
Comelec en banc forthwith issued on the very same day May 12, 1998 assailed Minute
Resolution 98-1747, 19 granting the petition insofar as the votes in the Municipality of Pata
were concerned.
The assailed Resolution was issued even before the report-recommendation of Atty. Tolentino
was submitted to the Comelec en banc, close to midnight of that day. 20 While the effectivity
of Minute Resolution 98-1747 was expressly "subject to notice to all parties concerned," its
very issuance by the Comelec en banc was obviously (1) without notice to the other
candidates, (2) without any hearing at all, and (3) without an independent investigation by the
Comelec. It relied totally on the contents of the petition itself.
Clearly, while the parties may have been heard by Atty. Tolentino, their inputs were definitely
not communicated to nor required by the Commission en banc prior to its issuance of Minute
Resolution 98-1747. Besides, the Tolentino meeting took up the problems in the Municipality
of Pata only, for the alleged problems in the five other municipalities of Sulu were discovered
after that meeting was adjourned already. Such meeting, therefore, did not serve as a
sufficient basis for the Comelec to abandon the automated count in the entire province; to

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transfer the counting venue from Sulu to Manila; and to totally shift to the manual count. In
making these decisions and issuing the resolutions therefor, the Comelec clearly did not
accord the parties due process. It did not give them any opportunity to be heard prior the
promulgation of its rulings. The Comelec simply acted on its own.
Epilogue
Special Election as the Equitable Remedy
The assailed Comelec Resolutions have heretofore been shown to be tainted with grave abuse
of discretion; hence, the manual count has no legal leg to stand on. Consequently, its results
cannot be upheld. That which proceeds from a void order is likewise void. The invalidity of the
manual count resulted in no count at all. Equally important, the manual count was not
reflective of the results of an automated count because the ballots were not appreciated in the
manner the scanning machine would have counted them.chanrobles lawlibrary : rednad
During the Oral Argument, the parties, as well as the solicitor general, agreed that an
automated count was no longer possible because, after the ballots had been manually handled
(and blemished or rumpled in the process), the scanning machines could not accurately read
all of them anymore. 21 While the great majority of the ballots could still be counted by the
machines, there were those that could no longer be electronically processed ballots that
were torn, dirty or sticky; and the damp ones that the machine found difficult to disengage.
The ultimate effect of the invalidity of the manual count and the futility of an automated count
at this time is the annulment or junking of the votes of the people of Sulu in the last elections.
The will of the electorate, expressed through the ballots, has been frustrated or virtually
canceled by the unauthorized acts of the Comelec. There is then no basis for the proclamation
of Private Respondent Tan as the duly elected governor of Sulu.
It must be pointed out, however, that the nullity of Tans proclamation is not equivalent to a
judicial disenfranchisement of the Sulu electorate. Indeed, there is no evidence showing that
the voting process itself was tainted with undue irregularity. It was the counting process,
rather, that was shrouded with uncertainty. The manual count, I repeat, was not the
prescribed or even the appropriate method of validating the ballots intended to be
electronically verified.
Time and again, the Court has held that the sovereign will must prevail over legal
technicalities. 22 But when the popular will itself is placed in serious doubt due to the
irregularity of the very method used in determining it, we must allow the people involved
another chance to express their true choice. We simply cannot impose upon the people of Sulu
one, who was not their clear choice, or whose election was, at the very least, placed in serious
doubt by the spuriousness of the method used in counting the votes.
The consequent loss of a legal and appropriate means to ascertain the genuine will of the
voters during the last election in Sulu necessitates the holding of a special election. I believe
that this is the only equitable remedy left under the circumstances, if we are to give true
justice to the people of Sulu and let their sovereign will prevail. 23 Such special election will,
however, concern only the position of governor of the Province of Sulu. Only this position was
contested in the instant petition; only the candidates therefor have timely sought relief from

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this Court to assail the manual count and the subject Minute Resolutions of the Comelec. The
same relief cannot be granted to the candidates for the other positions who, insofar as they
are concerned, are deemed to have accepted the results of the manual count as truly
reflective of the will of the people of Sulu. Their failure to object in due time to the process, as
well as the results, manifests their conformity and acceptance. They are now estopped from
questioning the validity of the assumption into office of the duly proclaimed winners of the
other positions in the province, whose rights cannot be adversely affected in these
proceedings without them being haled to and accorded their day in court. 24 Even this Court
has admitted the wisdom of this caveat as it denied the late intervention of Vice Gubernatorial
Candidate Abdulwahid Sahidulla.
The Need for Legislative Action
The foregoing disquisition shows that RA 8436 had not foreseen flaws in the automated
system that were unrelated to the counting machines or components thereof; thus, the lacuna
of the proper recourse in such event. No remedies were expressly prescribed (1) for
candidates who believe there was a wrong count or canvass by the machine, or more
relevantly, (2) on whether Comelec may resort to a manual count of automated ballots, and if
so, under what circumstances.25cralaw:red
Well-settled is the rule, that courts have no jurisdiction to make legislative pronouncements.
26 They have no power to fill a vacuum in the law. Thus, the Court, I submit, should not give
its imprimatur to the Comelecs resort to the manual method of determining election results,
where Congress has categorically prescribed the automated system. Only Congress, the
legislative arm of the government, can prescribe a precise remedy that will address the flaws
identified in this case. For the courts or the Comelec to do so (like a resort to manual count)
would be tantamount to judicial or administrative legislation, a course diametrical to the
constitutional principle of separation of powers.chanrobles virtuallawlibrary
WHEREFORE, I vote that the petition be GRANTED. Assailed Comelec Resolution Nos. 98-1747,
98-1750, 98-1796 and 98-1798 should be declared NULL and VOID. The manually determined
election results for the position of governor of Sulu and the proclamation of Respondent
Abdusakur Tan as the elected governor of said province must thus be SET ASIDE and the
Comelec ORDERED to call a special election for such position as soon as practicable.
Endnotes:

1. See Report of Charlemagne Salamat Alejandrino, Police Superintendent, GSC, Provincial

Director, pp. 1-2; Rollo, pp. 318-319.
2. See Memorandum of Atty. Tolentino, Jr. to Atty. Jose Balbuena, Director IV, Legal
Department, COMELEC, pp. 1-2; Rollo, pp. 284-285.
3. Ibid., p. 3; Rollo, p. 286.
4. Ibid., p. 4; Rollo, p. 287.

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5. Ibid., p. 6; Rollo, p. 289.

6. Rollo, pp. 303-304.
7. Ibid., pp. 25-26.
8. Rollo, pp. 299-301.
9. Rollo, pp. 27-29.
10. Rollo, pp. 290-291.
11. Ibid.
12. Ibid., pp. 30-32.
13. Rollo, pp. 37-45.
14. Rollo, p. 54.
15. Ibid., p. 46
16. Ibid, pp. 157-184.
17. Ibid., p. 330.
18. Ibid., p. 392.
19. Filipino Engineering and Machine Shop v. Ferrer, 135 SCRA 25 (1985)
20. Rollo, p. 314.
21. Supplemental Memorandum of the Solicitor General, pp. 11-12; Rollo, pp. 433-434.
22. Tolentino memorandum, op. cit., p. 14; Rollo, p. 297.
23. Rollo, pp. 34-35.
24. See Resolution No. 98-1796.
25. Rollo, p. 328.
26. Rollo, pp. 62-97.
27. Memorandum, p. 9; Rollo, p. 264.
28. 73 Phil. 288, 295-296 (1941).
29. Philippine Political Law, 1962 ed., pp. 383-386.

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30. Section 2, Art. X of the 1935 Constitution.

31. Section 2, Art. XII(C) of the 1973 Constitution.
32. Section 2, Art. IX(C) of the 1987 Constitution.
33. 19 SCRA 911, 921-922 (1967).
34. 25 SCRA 377, 388 (1968).
PANGANIBAN, J., dissenting:chanrob1es virtual 1aw library
1. 6, RA 8436.
2. Cortez v. Comelec, 79 Phil 350 (1947); Lawsin v. Escalona, 11 SCRA 643 (1964).
3. I Transcript 49-50.
4. 7, No. 7
5. According to Atty. Tolentino, there were about 200 ballots contained in a ballot box (II
Transcript 46). The 27 ballot boxes for the 27 precincts of Pata, Sulu would thus yield about
5,400 ballots or votes.
6. Sanchez v. Comelec, 193 SCRA 320, January 24, 1991; Loong v. Comelec, 257 SCRA 1,
May 16, 1996; Villanueva v. Court of Appeals, 259 SCRA 14, July 15, 1996; Garay v. Comelec,
261 SCRA 222, August 26, 1996; Jagunap v. Comelec, 104 Phil 204, April 24, 1981;
Sarmiento v. Comelec, 212 SCRA 313, August 6, 1992; PNCC v. NLRC, 217 SCRA 455,
January 22, 1993; Philippine Air Lines, Inc. v. NLRC, 225 SCRA 259, August 10, 1993;
Philippine Air Lines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994; Allado v. Diokno, 232
SCRA 192, May 5, 1994; Labor v. NLRC, 248 SCRA 183, September 14, 1995; San Miguel
Corp. v. NLRC, 209 SCRA 494, June 2, 1992.
7. Annex "3" to the Memorandum of Private Respondent Tan; rollo, pp. 256 et seq.
8. Rollo, pp. 30-32.
9. Emphasis supplied.
10. See Sec. 7, RA 8436.
11. Regalado E. Maambong, "New Technologies of Modernization in Electoral Administration:
The Philippine Experience," Symposium on Asian Elections in the 21st Century: A Report,
January 1997, p. 30.
12. "Sec. 211. Rules for the appreciation of ballots. In the reading and appreciation of
ballots, every ballot shall be presumed to be valid unless there is clear and good reason to
justify its rejection. The board of election inspectors shall observe the following rules, bearing

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in mind that the object of the election is to obtain the expression of the voters
will:jgc:chanrobles.com.ph
"1. Where only the first name of a candidate or only his surname is written, the vote for such
candidate is valid, if there is no other candidate with the same first name or surname for the
same office.
"2. Where only the first name of a candidate is written on the ballot, which when read, has a
sound similar to the surname of another candidate, the vote shall be counted in favor of the
candidate with such surname. If there are two or more candidates with the same full name,
first name or surname and one of them is the incumbent and on the ballot is written only such
full name, first name or surname, the vote shall be counted in favor of the incumbent.
"3. In case the candidate is a woman who uses her maiden or married surname or both and
there is another candidate with the same surname, a ballot bearing only such surname shall
be counted in favor of the candidate who is an incumbent.
"4. When two or more words are written on the same line on the ballot, all of which are the
surnames of two or more candidates, the same shall not be counted for any of them, unless
one is a surname of an incumbent who has served for at least one year in which case it shall
be counted in favor of the latter.
"When two or more words are written on different lines on the ballot all of which are the
surnames of two or more candidates bearing the same surname for an office for which the law
authorize the election of more than one and there are the same number of such surnames
written as there are candidates with that surnames, the vote shall be counted in favor of all
the candidates bearing the surname.
"5. When on the ballots is written a single word which is the first name of a candidate and
which is at the same time the surname of his opponent, the vote shall be counted in favor of
the latter.
"6. When two words are written on the ballot, one of which is the first name of the candidate
and the other is the surname of his opponent, the vote shall not be counted for either.
"7. A name or surname incorrectly written which, when read, has a sound similar to the name
or surname of a candidate when correctly written shall be counted in his favor.
"8. When a name of a candidate appears in a space of the ballot for an office for which he is a
candidate and in another space for which he is not a candidate, it shall be counted in his favor
for the office for which he is a candidate and the vote for the office for which he is not a
candidate shall be considered as stray, except when it is used as a means to identify the
voter, in which case, the whole ballot shall be void.
"If the word or words written on the appropriate blank on the ballot is the identical name or
surname or full name, as the case may be, of two or more candidates for the same office none
of whom is an incumbent, the vote shall be counted in favor of that candidate to whose ticket
belong all the other candidates voted for in the same ballot for the same constituency.

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"9. When in a space in the ballot there appears a name of a candidate that is erased and
another clearly written, the vote is valid for the latter.
"10. The erroneous initial of the first name which accompanies the correct surname of a
candidate, the erroneous initial of the surname accompanying the correct first name of a
candidate, or the erroneous middle initial of the candidate shall not annul the vote in favor of
the latter.
"11. The fact that there exists another person who is not a candidate with the first name or
surname of a candidate shall not prevent the adjudication of the vote of the latter.
"12. Ballots which contain prefixes as Sr., Mr., Datu, Don, Ginoo, Hon., Gob. or suffixes
like Hijo, Jr., Segundo are valid.
"13. The use of the nicknames and appellations of affection and friendship, if accompanied by
the first name or surname of the candidate, does not annul such vote, except when they were
used as a means to identify the voter, in which case the whole ballot is invalid: Provided, That
if the nickname used is unaccompanied by the name or surname of a candidate and it is the
one by which he is generally or popularly known in the locality, the name shall be counted in
favor of said candidate, if there is no other candidate for the same office with the same
nickname.
"14. Any vote containing initials only or which is illegible or which does not sufficiently identify
the candidate for whom it is intended shall be considered as a stray vote but shall not
invalidate the whole ballot.
"15. If on the ballot is correctly written the first name of a candidate but with a different
surname, or the surname of the candidate is correctly written but with different first name, the
vote shall not be counted in favor of any candidate having such first name and/or surname but
the ballot shall be considered valid for other candidates.
"16. Any ballot written with crayon, lead pencil, or in ink, wholly or in part, shall be valid.
"17. Where there are two or more candidates voted for in an office for which the law
authorizes the election of only one, the vote shall not be counted in favor of any of them, but
this shall not affect the validity of the other votes therein.
"18. If the candidates voted for exceed the number of those to be elected, the ballot is valid,
but the votes shall be counted only in favor of the candidates whose names were firstly written
by the voter within the spaces provided for said office in the ballot until the authorized number
is covered.
"19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a
candidate for an office for which he did not present himself shall be considered as a stray vote
but it shall not invalidate the whole ballot.
"20. Ballots containing the name of a candidate printed and pasted on a blank space of the
ballot or affixed thereto through any mechanical process are totally null and void.

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"21. Circles, crosses or lines put on the spaces on which the voter has not voted shall be
considered as signs to indicate his desistance from voting and shall not invalidate the ballot.
"22. Unless it should clearly appear that they have been deliberately put by the voter to serve
as identification marks, commas, dots, lines, or hyphens between the first name and surname
of a candidate, or in other parts of the ballot, traces of the letter T, J, and other similar
ones, the first letters or syllables of names which the voter does not continue, the use of two
or more kinds of writing and unintentional or accidental flourishes, strokes, or strains, shall
not invalidate the ballot.
"23. Any ballot which clearly appears to have been filled by two distinct persons before it was
deposited in the ballot box during the voting is totally null and void.
"24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be
considered as stray and shall not be counted but it shall not invalidate the ballot.
"25. Ballots wholly written in Arabic in localities where it is of general use are valid. To read
them, the board of election inspectors may employ an interpreter who shall take an oath that
he shall read the votes correctly.
"26. The accidental tearing or perforation of a ballot does not annul it.
"27. Failure to remove the detachable coupon from a ballot does not annul such ballot."cralaw
virtua1aw library
13. With the help of Comelec personnel, the counting machines were used only for clean or
smudge-free ballots, which were fed into the machines to assure the integrity of the machine
count.
14. During this process, Comelec personnel led by Atty. Jose Tolentino Jr. actually ran the
automated ballots through the scanning machines, thus showing a sampling comparison
between the manual results and the machine-generated totals.
15. 211, No. 16.
16. Part II, No. 8, of the Comelec Procedure for Manual Counting dated May 23, 1998.
17. See 211, No. 9.
18. Annex "1" to Comment; rollo, pp. 121-123.
19. Rollo, pp. 25-26.
20. II Transcript 13-14.
21. The caveat must be stated here, however, that during the sampling demonstration made
by Comelec, which showed discrepancies in the automated and manual counts, most of the
ballots could still be read by the machines. Only one or two ballots per precinct were spoiled or
blemished to the point of being non-readable by the machine.

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22. Frivaldo v. Comelec 257, SCRA 727, 771, June 238, 1996; Benito v. Comelec, 235 SCRA
436, 442, August 17, 1994, citing several cases.
23. The ponencia rules out this remedy, arguing that a special election was not prayed for by
the parties and, at any rate, can be authorized only in accordance with Sections 4, 5, 6 and 7
of the OEC. I stress however that, under the circumstances, a special election is the
EQUITABLE remedy because to uphold the manual count, as the majority did, merely gave
imprimatur to arbitrary acts of the Comelec and validated the inaccurate and unauthorized
manual count.
24. Tan v. Barrios, 190 SCRA 686, 689-699, October 18, 1990; citing Icasiano v. Tan, 94 Phil
860 (1949); Busacay v. Buenaventura, 93 Phil (1953).
25. Earlier, I opined that, by analogy, the parties could avail of pre-proclamation contests or
election protests. However, such analogy cannot be extended to manual elections because no
law provides for such remedy.
26. Santiago v. Guingona Jr., GR No. 134577, November 18, 1998; Javellana v. Executive
Secretary, 50 SCRA 30, 84, March 31, 1973.
EN BANC
G. R. No. 160427 - September 15, 2004
POLALA SAMBARANI, JAMAL MIRAATO, SAMERA ABUBACAR and MACABIGUNG
MASCARA, Petitioners, vs. COMMISSION ON ELECTIONS and EO ESMAEL MAULAY,
Acting Election Officer, Tamparan, Lanao del Sur or whoever is acting on his
behalf, Respondents.
DECISION
CARPIO, J.:
The Case
Challenged in this petition for certiorari1 with prayer for temporary restraining order and
preliminary injunction is the Resolution of the Commission on Elections en
banc ("COMELEC")2 dated 8 October 2003. The COMELEC declared a failure of election but
refused to conduct another special election.
The Facts
In the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections
("elections"), Polala Sambarani ("Sambarani"), Jamal Miraato ("Miraato"), Samera Abubacar
("Abubacar"), Macabigung Mascara ("Mascara") and Aliasgar Dayondong ("Dayondong") ran
for re-election aspunong barangay in their respective barangays, namely: Occidental Linuk,

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Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, and Tatayawan South ("five
barangays"), all in Tamparan, Lanao del Sur.
Due to a failure of elections in eleven barangays in Lanao del Sur, the COMELEC issued
Resolution No. 5479 setting special elections on 13 August 2002 in the affected barangays in
Lanao del Sur including the five barangays. On 14 August 2002, Acting Election Officer Esmael
Maulay ("EO Maulay") issued a certification that there were no special elections held on 13
August 2002.
Consequently, Sambarani, Miraato, Abubacar, Mascara and Dayondong ("joint-petitioners")
filed a Joint Petition seeking to declare a failure of elections in the five barangays and the
holding of another special election. The Joint Petition attributed the failure of the special
elections to EO Maulays non-compliance with COMELEC Commissioner Mehol K. Sadains
("Commissioner Sadain") directive. Commissioner Sadain had directed EO Maulay to use the
Autonomous Region of Muslim Mindanao ("ARMM") 2001 computerized Voters List and the
Voters Registration Records of the Provincial Election Officer during the December 2001
registration of new voters.
The parties did not attend the hearing scheduled on 11 September 2002 despite due notice. In
the 1 October 2002 hearing, counsel for joint-petitioners as well as EO Maulay and his counsel
appeared. The COMELEC ordered the parties to submit their memoranda within 20 days. The
COMELEC also directed EO Maulay to explain in writing why he should not be administratively
charged for failing to comply with Commissioner Sadains directive. The joint-petitioners filed
their Memorandum on 25 October 2002. EO Maulay did not file a memorandum or a written
explanation as directed. The COMELEC considered the case submitted for resolution.
On 8 October 2003, the COMELEC issued the assailed Resolution, disposing as follows:
ACCORDINGLY, the Department of Interior and Local Government is hereby DIRECTED to
proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK
Chairmen and SK Kagawads in Barangays Occidental Linuk,Pindolonan
Moriatao Sarip, Talub, Tatayawan South, and New Lumbacaingud, all of Tamparan,
Lanao del Sur, in accordance with the pertinent provisions of Republic Act No. 7160, otherwise
known as the Local Government Code of 1991, and other related laws on the matter.
Let a copy of this Resolution be furnished to the Department of Interior and Local
Government, the Municipality of Tamparan, Lanao [d]el Sur, and the respective Sangguniang
Barangays of Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, Tatayawan South
and New Lumbacaingud, of Tamparan.
Finally, let a copy of this Resolution be furnished to the Law Department for Preliminary
Investigation of Respondent ESMAEL MAULAY for possible commission of election offense/s,
and consequently, the filing of administrative charges against him if warranted.
SO ORDERED.3
Sambarani, Miraato, Abubacar and Mascara ("petitioners") filed the instant petition.4

Page 448 of 492

The COMELECs Ruling

The COMELEC agreed with petitioners that the special elections held on 13 August 2002 in the
five barangays failed. The COMELEC, however, ruled that to hold another special election in
these barangays as prayed for by petitioners is untenable. The COMELEC explained that it is
no longer in a position to call for another special election since Section 6 of the Omnibus
Election Code provides that "special elections shall be held on a date reasonably close to the
date of the election not held, but not later than thirty days after cessation of the cause of such
postponement." The COMELEC noted that more than thirty days had elapsed since the failed
election.
The COMELEC also pointed out that to hold another special election in these barangays will not
only be tedious and cumbersome, but a waste of its precious resources. The COMELEC left to
the Department of Interior and Local Government ("DILG") the process of appointing the
Barangay Captains and Barangay Kagawads as well as the Sangguniang Kabataan ("SK")
Chairmen and SK Kagawads in these barangays "in accordance with the Local Government
Code of 1991 and other related laws on the matter."5
The Issues
Petitioners contend that the COMELEC acted with grave abuse of discretion amounting to lack
of jurisdiction in
1. Denying the prayer to call for another special election in barangays Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud ("subject barangays");
2. Directing the DILG to proceed with the appointment of the barangay captains, barangay
kagawads, SK chairmen and SK kagawads in the subject barangays;
3. Not declaring the petitioners as the rightful incumbent barangay chairmen of their office
until their successors have been elected and qualified.
The Courts Ruling
The petition is meritorious.
First Issue:
Whether To Call Another Special Election
Petitioners fault the COMELEC for not holding another special election after the failed 13
August 2002 special election. Petitioners insist that the special barangay and SK elections in
the subject barangays failed because EO Maulay did not use the voters list used during the
2001 ARMM elections. Neither did Maulay segregate and exclude those voters whose Voters
Registration Records ("VRRs") were not among those 500 VRRs bearing serial numbers
00097501 to 0009800 allocated and released to Tamparan. Finally, Maulay did not delete from
the certified list of candidates the name of disqualified candidate Candidato Manding.

Page 449 of 492

Petitioners contend that COMELECs refusal to call another special election conflicts with
established jurisprudence, specifically the ruling in Basher v. Commission on Elections.6
The Solicitor General supports the COMELECs stance that a special election can be held only
within thirty days after the cause of postponement or failure of election has ceased. The
Solicitor General also maintains that the DILG has the power to appoint and fill vacancies in
the concerned elective barangay and SK offices.
Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power to
"enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall." Indisputably, the text and intent of this
constitutional provision is to give COMELEC all the necessary and incidental powers for it to
achieve its primordial objective of holding free, orderly, honest, peaceful and credible
elections.7
The functions of the COMELEC under the Constitution are essentially executive and
administrative in nature. It is elementary in administrative law that "courts will not interfere in
matters which are addressed to the sound discretion of government agencies entrusted with
the regulation of activities coming under the special technical knowledge and training of such
agencies."8 The authority given to COMELEC to declare a failure of elections and to call for
special elections falls under its administrative function.9
The marked trend in our laws has been to grant the COMELEC ample latitude so it can more
effectively perform its duty in safeguarding the sanctity of our elections. But what if, as in this
case, the COMELEC refuses to hold elections due to operational, logistical and financial
problems? Did the COMELEC gravely abuse its discretion in refusing to conduct a second
special Barangay and SK elections in the subject barangays?
Neither the candidates nor the voters of the affected barangays caused the failure of the
special elections. The COMELECs own acting election officer, EO Maulay, readily admitted that
there were no special elections in these barangays. The COMELEC also found that the
Provincial Election Supervisor of Lanao del Sur and the Regional Election Director of Region XII
did not contest the fact that there were no special elections in these barangays.
An election is the embodiment of the popular will, the expression of the sovereign power of
the people.10 It involves the choice or selection of candidates to public office by popular
vote.11 The right of suffrage is enshrined in the Constitution because through suffrage the
people exercise their sovereign authority to choose their representatives in the governance of
the State. The fact that the elections involved in this case pertain to the lowest level of our
political organization is not a justification to disenfranchise voters.
COMELEC anchored its refusal to call another special election on the last portion of Section 6
of the Omnibus Election Code ( "Section 6") which reads:
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or
other analogous cases the election in any polling place has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the

Page 450 of 492

custody or canvass thereof, such election results in a failure to elect, and in any of such cases
the failure or suspension of election would affect the result of the election, the Commission
shall, on the basis of a verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not held, suspended or which
resulted in a failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the election
or failure to elect. (Emphasis supplied)
The Court construed Section 6 in Pangandaman v. COMELEC,12 as follows
In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be
later than thirty (30) days after the cessation of the cause of the postponement or suspension
of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the
election not held, suspended or which resulted in the failure to elect. The first involves a
question of fact. The second must be determined in the light of the peculiar circumstances of a
case. Thus, the holding of elections within the next few months from the cessation of
the cause of the postponement, suspension or failure to elect may still be considered
"reasonably close to the date of the election not held." (Emphasis supplied)
The prohibition on conducting special elections after thirty days from the cessation of the
cause of the failure of elections is not absolute. It is directory, not mandatory, and the
COMELEC possesses residual power to conduct special elections even beyond the deadline
prescribed by law. The deadline in Section 6 cannot defeat the right of suffrage of the people
as guaranteed by the Constitution. The COMELEC erroneously perceived that the deadline in
Section 6 is absolute. The COMELEC has broad power or authority to fix other dates for special
elections to enable the people to exercise their right of suffrage. The COMELEC may fix other
dates for the conduct of special elections when the same cannot be reasonably held within the
period prescribed by law.
More in point is Section 45 of the Omnibus Election Code ("Section 45") which specifically
deals with the election of barangay officials. Section 45 provides:
SEC. 45. Postponement or failure of election. When for any serious cause such as
violence, terrorism, loss or destruction of election paraphernalia or records, force majeure,
and other analogous causes of such nature that the holding of a free, orderly and honest
election should become impossible in any barangay, the Commission, upon a verified petition
of an interested party and after due notice and hearing at which the interested parties are
given equal opportunity to be heard, shall postpone the election therein for such time as it
may deem necessary.
If, on account of force majeure, violence, terrorism, fraud or other analogous causes, the
election in any barangay has not been held on the date herein fixed or has been suspended
before the hour fixed by law for the closing of the voting therein and such failure or
suspension of election would affect the result of the election, the Commission, on the basis
of a verified petition of an interested party, and after due notice and hearing, at
which the interested parties are given equal opportunity to be heard shall call for the
holding or continuation of the election within thirty days after it shall have verified
and found that the cause or causes for which the election has been postponed or
Page 451 of 492

suspended have ceased to exist or upon petition of at least thirty percent of the registered
voters in the barangay concerned.
When the conditions in these areas warrant, upon verification by the Commission, or upon
petition of at least thirty percent of the registered voters in the barangay concerned, it shall
order the holding of the barangay election which was postponed or suspended. (Emphasis
supplied)
Unlike Section 6, Section 45 does not state that special elections should be held on a date
reasonably close to the date of the election not held. Instead, Section 45 states that special
elections should be held within thirty days from the cessation of the causes for postponement.
Logically, special elections could be held anytime, provided the date of the special elections is
within thirty days from the time the cause of postponement has ceased.
Thus, in Basher13 the COMELEC declared the 27 May 1997 barangay elections a failure and
set special elections on 12 June 1997 which also failed. The COMELEC set another special
election on 30 August 1997 which this Court declared irregular and void. On 12 April 2000,
this Court ordered the COMELEC "to conduct a special election for punong barangay of Maidan,
Tugaya, Lanao del Sur as soon as possible." This despite the provision in Section 214 of
Republic Act No. 6679 ("RA 6679")15 stating that the special barangay election should be held
"in all cases not later than ninety (90) days from the date of all the original election."
Had the COMELEC resolved to hold special elections in its Resolution dated 8 October 2003, it
would not be as pressed for time as it is now. The operational, logistical and financial problems
which COMELEC claims it will encounter with the holding of a second special election can be
solved with proper planning, coordination and cooperation among its personnel and other
deputized agencies of the government. A special election will require extraordinary efforts, but
it is not impossible. In applying election laws, it would be better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms.16 In any event, this
Court had already held that special elections under Section 6 would entail minimal costs
because it covers only the precincts in the affected barangays.17
In this case, the cause of postponement after the second failure of elections was COMELECs
refusal to hold a special election because of (1) its erroneous interpretation of the law, and (2)
its perceived logistical, operational and financial problems. We rule that COMELECs reasons for
refusing to hold another special election are void.
Second and Third Issues: Whether the DILG may Appoint
the Barangay and SK Officials
Petitioners contend that the COMELEC gravely abused its discretion in directing the DILG to
proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK
chairmen and SK Kagawads in the four barangays. Petitioners argue that as the incumbent
elective punong barangays in the four barangays,18 they should remain in office in a holdover capacity until their successors have been elected and qualified. Section 5 of Republic Act
No. 9164 ("RA 9164")19 provides:

Page 452 of 492

Sec. 5. Hold Over. All incumbent barangay officials and sangguniang kabataan officials shall
remain in office unless sooner removed or suspended for cause until their successors shall
have been elected and qualified. The provisions of the Omnibus Election Code relative to
failure of elections and special elections are hereby reiterated in this Act.
RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes the term
of office of barangay and SK officials, and provides for the qualifications of candidates and
voters for the SK elections.
As the law now stands, the language of Section 5 of RA 9164 is clear. It is the duty of this
Court to apply the plain meaning of the language of Section 5. Since there was a failure of
elections in the 15 July 2002 regular elections and in the 13 August 2002 special elections,
petitioners can legally remain in office as barangay chairmen of their respective barangays in a
hold-over capacity. They shall continue to discharge their powers and duties as punong
barangay, and enjoy the rights and privileges pertaining to the office. True, Section 43(c) of
the Local Government Code limits the term of elective barangay officials to three years.
However, Section 5 of RA 9164 explicitly provides that incumbent barangay officials may
continue in office in a hold over capacity until their successors are elected and qualified.
Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that "[A]ll incumbent
barangay officials xxx shall remain in office unless sooner removed or suspended for cause
xxx until their successors shall have been elected and qualified." Section 8 of the same RA
6679 also states that incumbent elective barangay officials running for the same office "shall
continue to hold office until their successors shall have been elected and qualified."
The application of the hold-over principle preserves continuity in the transaction of official
business and prevents a hiatus in government pending the assumption of a successor into
office.20 As held in Topacio Nueno v. Angeles,21 cases of extreme necessity justify the
application of the hold-over principle.
WHEREFORE, we GRANT the instant petition. The Resolution of the Commission on Elections
dated 8 October 2003 is declared VOID exceptinsofar as it directs its Law Department to
conduct a preliminary investigation of Esmael Maulay for possible commission of election
offenses. Petitioners have the right to remain in office as barangay chairmen in a hold-over
capacity until their successors shall have been elected and qualified. The Commission on
Elections is ordered to conduct special Barangay elections in Barangays Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, all in Tamparan, Lanao del Sur within
thirty (30) days from finality of this decision.
SO ORDERED.
Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, AustriaMartinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario, JJ., concur.
Endnotes:
1

Under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure.

Page 453 of 492

Composed of Benjamin S. Abalos, Sr. as Chairman, with Commissioners Luzviminda G.

Tancangco, Rufino SB. Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z. Borra and
Florentino A. Tuason, Jr.
3

Rollo, p. 29.

Dayondong of Barangay Tatayawan South did not join the instant petition.

Rollo, p. 28.

386 Phil. 954 (2000).

Pangandaman v. COMELEC, 377 Phil. 297 (1999).

Province of Zamboanga del Norte v. Court of Appeals, G.R. No. 109583, 11 October 2000,
342 SCRA 549.
9

Ampatuan v. COMELEC, 426 Phil. 201 (2002).

10

Taule v. Santos, G.R. No. 90336, 12 August 1991, 200 SCRA 512.

11

Ibid.

12

Supra note 7.

13

Supra note 6.

14

Section 2 of RA 6679 provides:

SEC. 2. When for any serious cause such as rebellion, insurrection, violence, terrorism, loss or
destruction of election paraphernalia, and any analogous causes of such nature that the
holding of a free, orderly and honest election should become impossible in any barangay, the
Commission on Elections motu proprio or upon sworn petition of ten (10) registered voters of
a barangay, after summary proceedings of the existence of such grounds, shall suspend or
postpone the election therein to a date reasonably close to the date of the election that is not
held or is suspended or postponed, or which resulted in a failure to elect, but not later than
thirty (30) days after the cessation of the cause for such suspension or postponement of the
election or failure to elect, and in all cases not later than ninety (90) days from the date of all
the original election.
15

AN ACT TO AMEND REPUBLIC ACT NO. 6653 TO POSTPONE THE BARANGAY ELECTIONS TO
MARCH 28, 1989, PRESCRIBING ADDITIONAL RULES GOVERNING THE CONDUCT OF
BARANGAY ELECTIONS AND FOR OTHER PURPOSES.
16

Malabaguio v. Commission on Elections, G.R. No. 142507, 1 December 2000, 346 SCRA
699; Maruhom v. Comelec, 387 Phil. 491 (2000).

Page 454 of 492

17

Lucero v. Commission on Elections, G.R. Nos. 113107 and 113509, 20 July 1994, 234 SCRA
280.
18

Now only four, since Dayondong of Tatayawan South no longer joined this petition.

19

AN ACT PROVIDING FOR SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN

ELECTIONS, AMENDING REPUBLIC ACT. NO. 7160, AS AMENDED, OTHERWISE KNOWN AS
THE "LOCAL GOVERNMENT CODE OF 1991," AND FOR OTHER PURPOSES.
20

State ex rel. Coe v. Lee, 147 Fla 464; Burnett v. Brown, 194 Va. 103.

21

76 Phil. 12 (1946).

THIRD DIVISION
[G.R. No. 75959. August 31, 1992.]
VICTORIANO V. OROCIO, Petitioner, v. COMMISSION ON AUDIT, SOFRONIO B.
URSAL, MARCOS S. SEGARRA, LEON J. PILAR, JR., and JOSE M.
AGUSTIN, Respondents.
Victoriano V. Orocio for and in his own behalf.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PARTY ADJUDGED LIABLE FOR DISALLOWED
EXPENDITURE WITHOUT PRIOR NOTICE DENIED RIGHT TO DUE PROCESS; CASE AT BAR.
Respondent Agustin then cannot be faulted when in his Certificate of Settlement and Balances
No. 01-04-83, he disallowed NPCs questioned disbursement. However, in his notation as to
the persons to be liable therefor, he mentions only Mr. M.V. Villafuerte (the Approving
Authority) whose liabilities are primary; E. Gamama and P. Gajasan (Managements
Examiners) whose liabilities are secondary and joint" ; and H.L. Hermosura (Chief Accountant)
whose liability is primary. Petitioner was not found to be liable. He was made jointly and

Page 455 of 492

severally liable with Villafuerte, Gajasan and Hermosura only in the Memorandum of
respondent Agustin dated 30 June 1986. It may be noted that in his Memorandum he
excluded Gamama. Considering that what was sustained up to the level of the General
Counsel of the COA was the disallowance made in the aforementioned Certificate of
Settlement and Balances and necessarily, his ruling thereon as to who are the parties liable
therefor, Agustin acted arbitrarily and with grave abuse of discretion when, without prior
notice to petitioner, he made the latter liable for the disallowance and worse, he directed, in
the guise of a request, the Chief Accountant of the NPC, Metro Manila Regional Center, to book
the disallowance in the name of petitioner. Petitioner was not made a party to the motion for
reconsideration which the General Counsel of the COA acted upon. Respondent Agustin
effectively denied petitioner of his right to due process.
2. ID.; COMMISSION ON AUDIT; POWERS UNDER THE 1973 CONSTITUTION; POWER UNDER
THE 1987 CONSTITUTION; NATIONAL POWER CORPORATION SUBJECT TO COAS AUDIT
POWER. The NPC, as a government-owned corporation, is under the COAs audit power.
Under the 1973 Constitution, which was the Constitution in force at the time the disallowance
in question was made, the COA had the power to, inter alia, examine, audit, and settle, in
accordance with law and regulations, all accounts pertaining to the revenues and receipts of,
and expenditures or uses of funds and property, owned or held in trust by, or pertaining to,
the Government, or any of its subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations; and promulgate accounting and auditing rules
and regulations including those for the prevention of irregular, unnecessary, excessive, or
extravagant expenditures or uses of funds or property. The 1987 Constitution preserves this
power and function and grants the COA: ". . . exclusive authority, subject to the limitations in
this Article, to define the scope of its audit and examination, establish the techniques and
methods required therefor, and promulgate accounting and auditing rules and regulations,
including those for the prevention and disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures, or uses of government funds and properties."
Both the 1973 and 1987 Constitutions conferred upon the COA a more active role and invested
it with broader and more extensive powers. These were not meant to make it a toothless
tiger, but a dynamic, effective, efficient and independent watchdog of the Government.
3. ID.; ID.; NOT BOUND BY OPINION OF LEGAL COUNSEL OF AGENCY UNDER AUDIT;
REASON THEREFOR; CASE AT BAR. In determining whether an expenditure of a
Government agency or instrumentality such as the NPC is irregular, unnecessary, excessive,
extravagant or unconscionable, the COA should not be bound by the opinion of the legal
counsel of said agency or instrumentality which may have been the basis for the questioned
disbursement; otherwise, it would indeed become a toothless tiger and its auditing function
would be a meaningless and futile exercise. Its beacon lights then should be nothing more
than the pertinent laws and its rules and regulations. In the instant case, on the basis of the
pertinent documents attached to the pleadings, the COA auditor had every reason to believe
that the disbursement of P53,802.26 by the NPC as a refund to the OPLGS for the
hospitalization expenses of Abodizo, on the theory that the NPC was actually liable under the
law on quasi-delict, as determined by the petitions, was irregular, if not illegal. Other than the
report of Mapili and Barrera dated 27 May 1982, there is no competent evidence to show that
either the NPC or any of its employees were responsible for the accident. . . . We find
petitioners proposition to be a bit outlandish; he overrates the power of the General Counsel
of the NPC and belittles the authority of the COA. While it may be true that Section 15-A of
R.A. No. 6395 (charter of the NPC) provides that all legal matters shall be handled by the

Page 456 of 492

General Counsel of the Corporation, it by no means follows that all legal opinions of the
General Counsel are ex-cathedra and binding upon all. In short, said provision does not confer
upon him any degree of infallibility. It would have been dangerous if it were otherwise for not
only would he be able to inextricably and unjustly bind the corporation or compel it to abide by
his legal opinion even if it were wrong, he would also subordinate this Court to such opinion
even if this Court is the final authority on how the law should be read. Petitioners theory
destroys the very essence of the public trust character of a public office. He should be
reminded just as others in government service of Section 1, Article XI of the 1987
Constitution which reads: "Section 1. Public office is a public trust. Public officers and
employees 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."cralaw virtua1aw library
4. ID.; ID.; PERIOD WITHIN WHICH DECISION HAS TO BE RENDERED; COAS GENERAL
COUNSEL WITHOUT AUTHORITY TO ACT FOR THE COMMISSION WHICH RESOLVES CASES AS
A COLLEGIAL BODY; CASE AT BAR. It must be recalled that in his Memorandum of 14
February 1985, General Counsel Ilao of the NPC asked for a reconsideration of the
disallowance and requested that the same be forwarded to the Chairman of the COA pursuant
to Item III-7 of COA Circular 81-156 dated 19 January 1981. Clearly, therefore, the motion for
reconsideration became a matter for the COA to resolve or decide. Under the provisions of the
Constitution then in force, the COA was bound to decide it within sixty (60) days from the date
of its submission for resolution. Section 2 of Article XII-D thereof reads: "SEC. 2. The
Commission on Audit shall have the following powers and functions: . . . (2) Decide any case
brought before it within sixty days from the date of its submission for resolution. Unless
otherwise provided by law, any decision, order, or ruling of the Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a
copy thereof." Section 7, Article IX-A of the present Constitution also provides: "SEC 7. 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." The COA, both under the 1973 and 1987
Constitutions, is a collegial body. It must resolve cases presented to it as such Its General
Counsel cannot act for the Commission for he is not even a Commissioner thereof. He can only
offer legal advice or render an opinion in order to aid the COA in the resolution of a case or a
legal question. Thus, Nepomucenos 5th indorsement cannot, by any stretch of the
imagination, be considered as a "decision" of the COA. If the same were to be so considered, it
would be void ab initio for having been rendered by one who is not possessed with any power
or authority. In Mison v. Commission on Audit, this Court held that a so-called decision,
denominated as Decision No. 77-142 by the Manager of the Technical Service Office of the
COA, "by authority of the acting chairman" is "substantively void ab initio," because it was
rendered without jurisdiction. "It had an essential inherent defect that could not be cured or
waived."cralaw virtua1aw library
5. ID.; ID.; GOVERNMENT AUDITING CODE (PRESIDENTIAL DECREE NO. 1445); OFFICIAL OR
EMPLOYEE DIRECTLY RESPONSIBLE FOR IRREGULAR OR UNLAWFUL EXPENDITURE OR USE
OF GOVERNMENT FUNDS OR PROPERTY PERSONALLY LIABLE THEREFOR; CASE AT BAR.

Page 457 of 492

Even if We are to assume that the disallowance was proper, there would still be no basis for
directly holding petitioner liable therefor together with those earlier found to be responsible by
Agustin in his Certificate of Settlement and Balances, moreover, there would be no reason to
debit immediately his account with the NPC. In the first place, as earlier stated, up to the level
of the General Counsel of the COA who acted for the Commission, it was never claimed that
petitioner was personally liable for the disallowed disbursement; only the approving authority,
the management examiners and the Chief Accountant of the NPC were deemed liable therefor.
This seemed to be proper in the light of Sections 103, 105(1) and 106 of P.D. No. 1445. Under
said Section 103, expenditures of government funds or uses of government property in
violation of law or regulations shall be a personal liability of the official or employee found
directly responsible therefor. In the instant case, while it may perhaps be true that the
petitioner had rendered the opinion which was relied upon for the disbursement, it cannot be
said that he was directly responsible therefor. His was only a legal opinion which the governing
board of the NPC or any of its authorized officials could adopt or reject in the resolution of the
request of OPLGS for reimbursement. As earlier indicated, there is no showing at all that such
governing board or any authorized official formally approved the request and granted the
authority to make the refund. Respondent then was originally correct in excluding petitioner
from the Certificate of Settlement and Balances.
6. ADMINISTRATIVE LAW; ADMINISTRATIVE CODE OF 1987; PUBLIC OFFICERS; NOT
PERSONALLY LIABLE FOR ACTS DONE IN THE PERFORMANCE OF OFFICIAL DUTIES
UNATTENDED BY BAD FAITH, MALICE OR GROSS NEGLIGENCE; CASE AT BAR. It does not
necessarily follow, however, that in no case may the petitioner be liable for his legal opinion.
As the then officer-in-charge of the Office of the General Counsel of NPC, he exercised quasijudicial functions. He was empowered with discretion and authority to render an opinion as to
whether the claim for reimbursement by the OPLGS was proper and ultimately, to determine if
the NPC or any of its employees was responsible for the accident and, therefore, liable for the
injury suffered by Abodizo under the law on quasi-delict. If he rendered the opinion in the just
performance of his official duties and within the scope of his assigned tasks, he would not be
personally liable for any injury that may result therefrom. Otherwise stated, a public official
may be liable in his personal capacity for whatever damage he may have caused by his act
done with malice and in bad faith or beyond the scope of his authority or jurisdiction.
Paragraph (1), Section 38, Chapter 9, Book I, of the Administrative Code of 1987 expressly
provides: "SEC. 38. Liability of superior officers. (1) A public officer shall not be civilly liable
for acts done in the performance of his official duties, unless there is a clear showing of bad
faith, malice or gross negligence."
DECISION
DAVIDE, JR., J.:
On 25 May 1982, an accident occurred at the Malaya Thermal Plant of the National Power
Corporation (NPC). Based on the accident report of Robinson D. Mapili and Ildefonso I. Barrera
dated 27 May 1982, 1 tube leaks on HPH 5B were confirmed at 2:30 oclock in the morning of
25 May 1982. From the time of such confirmation until 8:00 oclock that morning, the system
was drained and prepared for repair by mechanical maintenance personnel. By 8:45 oclock,

Page 458 of 492

the system was declared safe for repair. Work thus progressed that same morning until 11:10
oclock, when the plug from the leaking tube gave way, thereby releasing steam and hot water
which hit two (2) of the employees working on the tube leak.chanrobles law library : red
Ernesto Pumaloy, an NPC employee, suffered 1st and 2nd degree burns on the lower part of
his body while Domingo Abodizo, a casual employee of O.P. Landritos General Services
(OPLGS), a janitorial contractor of the NPC, assigned to the Maintenance Section, suffered 1st
and 2nd degree burns on nearly seventy percent (70%) of his body. The injured personnel
were brought to the Tanay General Hospital for treatment and were later transferred to
Meralcos J.F. Cotton Hospital. Total hospitalization expenses for the treatment of Domingo
Abodizo reached P53,802.26.
The NPC initially advanced this amount by setting it up as an account receivable from OPLGS
deducted on a staggered basis from the latters billings against NPC until the same was fully
satisfied.
Subsequently, OPLGS, through its manager Ofelia Landrito, in a letter to Mr. Larry S. Gaerlan,
Vice-President, Human Resources & General Services (VP-HRGS) NPC, dated 30 August 1982,
2 requested for a refund of the total amount deducted from their billings representing
payment of the advances made by the NPC. This request was reiterated in a follow-up letter
dated 6 September 1982. 3 In his Memorandum to the VP-HRGS dated 14 September 1982,
Atty. C.Q. Crucillo, Assistant Chief Legal Counsel of the NPC, recommended favorable action
on the request of the contractor. 4 This was forwarded to the Acting Manager, Metro Manila
Regional Center (MMRC) of the NPC. 5 In turn, this opinion was referred to the General
Counsel of the NPC for comment. 6 At that time, Petitioner, then Legal Services Chief D of the
NPC, was designated by the Manager of the Legal Counseling Division of the NPC, who was to
attend and participate in a Management Convocation scheduled for 30 September to 2 October
1992, as officer-in-charge of the Office of the General Counsel for that period. 7 In a
memorandum dated 1 October 1982, Petitioner, as officer-in-charge, recommended favorable
action on OPLGS request, in support whereof he stated:chanrob1es virtual 1aw library
x

"In brief, it is posited in the Memorandum that under Article 2176 of the Civil Code of the
Philippines and pursuant to the doctrine of res ipsa loquitor (sic) (the thing speaks for itself)
and citing the case of Bernabe Africa, Et. Al. v. Caltex, Et Al., L-12986, March 31, 1966, it may
be reasonably inferred that the incident causing injuries to Mr. Abodizo happened for want of
care on the part of the Metro Manila Regional Center (MMRC) crew, rendering NPC, as their
employer and owner of the Malaya Thermal Plant liable for damages sustained by Mr. Abodizo.
It is further contended that under Article 2179 of the New Civil Code, NPC may not be liable
for such damages only if Mr. Abodizos own negligence was the immediate and proximate
cause of his injury, which is certainly not so in the instant case.
After a review of the findings stated in the said memorandum against the applicable laws and
jurisprudence on the matter, we find the request of OPLGS legally in order and should,
therefore, be given due course." 8
x

Page 459 of 492

Thereupon, the amount for the hospitalization expenses was refunded to the contractor
OPLGS. In Certificate of Settlement and Balances (CSB) No. 01-04-83 prepared by respondent
Jose M. Agustin, Unit Auditor of the Commission on Audit (COA) assigned to the NPC-MRRC,
on 30 July 1989, 9 the refund of the hospitalization expenses for Domingo Abodizo was
disallowed for" [u]nder the NPC-O.P. Landrito contract, there is no employer-employee
relationship between the Corporation and the latters employees." Hence, the NPC is not
answerable for such expenses. The following employees were made liable for the
disallowances: Mr. M.V. Villafuerte (Approving Authority) primarily liable; E. Camama and P.
Gajasan (Managements examiners) secondarily and jointly liable; L. Hermosura (Chief
Accountant) primarily liable.chanroblesvirtualawlibrary
General Counsel Marcelino C. Ilao of the NPC, in his Memorandum of 6 September 1984,
asked for a reconsideration of the aforesaid disallowance, stressing that:chanrob1es virtual
1aw library
x

"A review of the legal opinion (Memorandum dated October 1, 1982 of the Officer-in-Charge of
the Office of the General Counsel) for the Officer-in-Charge, MMRC, which was the basis for
the payment of the amount being disallowed, admits the non-existence of employer-employee
relationship between NPC and Mr. Abodizo, employee of O.P. Landrito. However, the legal
opinion premises the legality of the request for payment on the basis of quasi-delict, more
particularly, the negligence and/or want of care on the part of the MMRC crew which resulted
to the injuries sustained by Mr. Abodizo. Obligation arise (sic) not only from contracts but also
from quasi-delicts, . . ." 10
x

In his memorandum dated 9 January 1985, 11 respondent Agustin informed General Counsel
Ilao of the NPC that he is adopting his stand contained in his memorandum to the COA
Regional Director dated 9 October 1984 as the answer to the request for reconsideration. In
the latter memorandum, he maintains that:chanrob1es virtual 1aw library
x

". . . there being no pre-existing contractual relation between the Corporation and the subject
employee, the former is not liable for the damages sustained by the latter. We maintain that
while quasi-delicts could be a source of obligation, the fault or negligence of the party from
whom damages is being recovered must first be proven. . . .
The opinion rendered by the NPC Legal Office clearly concedes lack of proof of negligence on
the part of the NPC personnel undertaking the repair work or on the part of the Corporation ..
Moreover, the negligence of the crew does not make the Corporation automatically and/or
equally negligent.

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We further contend that it is not for the NPC Legal Office to declare the Corporation negligent
and admit liability. It could have been a better decision if the matter was left to a competent
court to determine." 12
x

The COA Regional Director, herein respondent Leon J. Pilar, Jr., in a Memorandum dated 3
December 1984, confirmed the disallowance and held that the persons determined to be liable
should be directed to immediately refund the amount disallowed and/or the proper official be
directed to retain any money due them in satisfaction thereof. 13
General Counsel Ilao submitted a second request for reconsideration on 14 February 1985. 14
This request justifies the legal opinion rendered based on Section 15-A of R.A. No. 6395 (the
NPC charter), as amended, which provides that." . . all legal matters shall be handled by the
General Counsel of the Corporation. . ."cralaw virtua1aw library
In a first indorsement dated 22 March 1985, 15 respondent Agustin submitted the request to
the Chairman of respondent COA with the claim that his findings on the said disallowance have
already been confirmed by the Regional Director, NCR. In a second indorsement dated 2 April
1985, 16 respondent Sofronio B. Ursal, Manager of the Corporate Audit Office of respondent
COA, referred for comment and/or recommendation to the Auditor, NPC, the request for
reconsideration. In a third indorsement dated 24 April 1985, 17 respondent Marcos Segarra,
Corporate Auditor of COA, returned the second indorsement to respondent Ursal informing the
latter that he concurs with the comment/opinion of respondent Agustin contained in the 1st
indorsement of 22 March 1985. In his 4th indorsement dated 30 May 1985, 18 respondent
Ursal, expressing his concurrence with the disallowance, referred to the COAs General
Counsel for an opinion the request for reconsideration. In his 5th indorsement dated 21 May
1986, 19 Ricardo G. Nepomuceno, Jr., General Counsel of the COA, acting "FOR THE
COMMISSION", made a return to the Unit Auditor, herein respondent Agustin; Nepomuceno
expressed his concurrence with the views of said Unit Auditor contained in the latters 1st
indorsement of 22 March 1985.chanrobles lawlibrary : rednad
Thereupon, on 30 June 1986, respondent, now in his capacity as Regional Auditor, transmitted
to the General Counsel of the NPC a copy of the aforesaid 5th indorsement of COAs General
Counsel, which the former considers as the Commissions decision (hereinafter designated as
"5th Indorsement"), together with the pertinent papers, on the appeal made relative to the
disallowance; 20 on the same date, he also sent a memorandum to the VP-MMRC of the NPC
wherein he ordered that the subject disallowance "be booked" in the petitioners name, "upon
whose legal opinion the payment of the aforesaid refund was made possible, jointly and
severally with Mr. M.V. Villafuerte (Approving official on the voucher), Ms. P. Gajasan
(Examiner), and Ms. L.M. Hermosura (Chief Accountant)," thereby amending previous findings
as to the persons liable. 21 On 22 July 1986, a Debit Memorandum 22 was issued in
petitioners name debiting his account with the NPC for the amount of the hospitalization
expenses.
Petitioner, on 28 September 1986, filed the instant petition seeking to annul and set aside the
above-mentioned:chanrob1es virtual 1aw library

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a) Memorandum of respondent Agustin dated 9 January 1985;

b) Memorandum of respondent Pilar dated 3 December 1984;
c) 1st indorsement of respondent Agustin, dated 22 March 1985, to the Chairman, COA;
d) 3rd indorsement of respondent Segarra dated 24 April 1985;
e) 4th indorsement of respondent Ursal, dated 30 May 1985, to the General Counsel of the
COA, conforming to the position of Jose M. Agustin; and
f) 5th indorsement of the COA General Counsel Nepomuceno, Jr. dated 21 May 1986. 23
and praying for a writ of preliminary injunction to enjoin respondents from enforcing the
same.chanrobles.com:cralaw:red
In support thereof, petitioner alleges that he prepared the questioned legal opinion in the
performance of his official functions as mandated by law. At the time he rendered it, he was
the officer-in-charge of the NPCs Office of the General Counsel. Section 15-A of its charter 24
provides that all legal matters shall be handled by the General Counsel of the Corporation. As
such, he provides legal advice and/or renders legal opinions on legal matters involving the
NPC. Since this function is quasi-judicial in nature, the discretion exercised in the discharge
thereof is not subject to re-examination or controversion by the respondents; when the latter
did what was proscribed, they in effect usurped the statutory function of the General Counsel
of the NPC. There is no law which expressly authorizes the respondents to re-examine or
controvert the General Counsels opinion. Petitioner additionally stresses that he is not
personally liable for the amount disallowed as he was merely performing his official functions.
Besides, his questioned opinion is not alleged to have been rendered with malice and bad
faith.25cralaw:red
In the Resolution of 6 October 1986, this Court dismissed the petition "for having been filed
out of time . . . and for late payment of the legal fees . . ." 26
Acting on petitioners motion for reconsideration, this Court, on 22 June 1987, granted the
motion, reinstated the petition and required the respondents to comment on the same. 27
Respondents, through the Office of the Solicitor General, filed their Comment on 9 October
1987. 28 They maintain that the questioned disbursement on the basis of the legal opinion of
the petitioner is within the scope of the auditing power of the COA. The Constitution grants the
COA the power, authority and duty to examine, audit and settle all accounts pertaining to the
expenditures or uses of funds and property pertaining to the Government or any of its
subdivisions, agencies or instrumentalities, including government-owned or controlled
corporations. 29 The matter of allowing in audit a disbursement account is not a ministerial
function, but one which necessitates the exercise of discretion. Besides, the OPLGS, Abodizos
employer, admitted that the incident was purely accidental and that there is no showing
whatsoever in the accident report of any negligence on the part of the NPC or its employees;
this being the case, the liability of the NPC for quasi-delict under Article 2176 of the New Civil
Code cannot be sustained. Finally, respondents assert that it was petitioners legal opinion

Page 462 of 492

which made possible the questioned disbursement; accordingly, the 30 June 1983 request of
respondent Agustin to book the disallowance in the petitioners name, jointly and severally
with the other officials found responsible therefor, is in order as it was made pursuant to
Section 103 of the Government Auditing Code 30 which provides:jgc:chanrobles.com.ph
"Expenditures of government funds or uses of government property in violation of law or
regulations shall be a personal liability of the official or employee found to be directly
responsible therefor."cralaw virtua1aw library
On 18 April 1988, this Court resolved to give due course to the petition and require both
parties to submit their simultaneous Memoranda, 31 which they subsequently complied with.
The principal issues raised in this case are:chanrob1es virtual 1aw library
(1) Does the legal opinion of petitioner, which was relied upon for the disbursement in
question, preclude or bar the COA from disallowing in post-audit such disbursement?
(2) Has the General Counsel of the COA the authority to decide a motion to reconsider the
disallowance in question?
(3) Is the petitioner personally liable for the disallowance on the theory that the disbursement
was made on the basis thereof?chanrobles.com.ph : virtual law library
1. As to the first, We find petitioners proposition to be a bit outlandish; he overrates the
power of the General Counsel of the NPC and belittles the authority of the COA. While it may
be true that Section 15-A of R.A. No. 6395 (charter of the NPC) provides that all legal matters
shall be handled by the General Counsel of the Corporation, it by no means follows that all
legal opinions of the General Counsel are ex-cathedra and binding upon all. In short, said
provision does not confer upon him any degree of infallibility. It would have been dangerous if
it were otherwise for not only would he be able to inextricably and unjustly bind the
corporation or compel it to abide by his legal opinion even if it were wrong, he would also
subordinate this Court to such opinion even if this Court is the final authority on how the law
should be read. Petitioners theory destroys the very essence of the public trust character of a
public office. He should be reminded just as others in government service of Section 1,
Article XI of the 1987 Constitution which reads:jgc:chanrobles.com.ph
"Section 1. Public office is a public trust. Public officers and employees 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."cralaw virtua1aw library
The NPC, as a government-owned corporation, is under the COAs audit power. Under the
1973 Constitution, which was the Constitution in force at the time the disallowance in question
was made, the COA had the power to, inter alia, examine, audit, and settle, in accordance
with law and regulations, all accounts pertaining to the revenues and receipts of, and
expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or instrumentalities, including governmentowned or controlled corporations; 32 and promulgate accounting and auditing rules and
regulations including those for the prevention of irregular, unnecessary, excessive, or
extravagant expenditures or uses of funds or property.

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The 1987 Constitution preserves this power and function and grants the
COA:jgc:chanrobles.com.ph
". . . exclusive authority, subject to the limitations in this Article, to define the scope of its
audit and examination, establish the techniques and methods required therefor, and
promulgate accounting and auditing rules and regulations, including those for the prevention
and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable
expenditures, or uses of government funds and properties." 33
Both the 1973 and 1987 Constitutions conferred upon the COA a more active role and invested
it with broader and more extensive powers. These were not meant to make it a toothless
tiger, but a dynamic, effective, efficient and independent watchdog of the Government. 34
In determining whether an expenditure of a Government agency or instrumentality such as
the NPC is irregular, unnecessary, excessive, extravagant or unconscionable, the COA should
not be bound by the opinion of the legal counsel of said agency or instrumentality which may
have been the basis for the questioned disbursement; otherwise, it would indeed become a
toothless tiger and its auditing function would be a meaningless and futile exercise. Its beacon
lights then should be nothing more than the pertinent laws and its rules and regulations.
In the instant case, on the basis of the pertinent documents attached to the pleadings, the
COA auditor had every reason to believe that the disbursement of P53,802.26 by the NPC as a
refund to the OPLGS for the hospitalization expenses of Abodizo, on the theory that the NPC
was actually liable under the law on quasi-delict, as determined by the petitions, was irregular,
if not illegal. Other than the report of Mapili and Barrera dated 27 May 1982, 35 there is no
competent evidence to show that either the NPC or any of its employees were responsible for
the accident.chanrobles law library : red
On the contrary, in its letter of 30 August 1982, 36 the OPLGS admitted that the "incident was
purely accidental in nature," but that "considering that the accident took place within the
premises of the National Power Corporation and the cause of which was the Tube leaks of HPH
5B, which was still undergoing repair, it is but proper that cost of hospital bills and other
expenses incurred by MR. DOMINGO ABODIZO be shouldered by the National Power
Corporation." It further admits that it will not "press our contention that the National Power
Corporation should pay" the hospital expenses, but appeals and requests that in the light of
the "relationship" between it and the NPC, and the services both render to each other, the NPC
nonetheless pay for the hospitalization expenses.
It is not disputed that petitioner conducted no further investigation into the causes of the
accident to determine for himself if indeed the NPCs or any of its employees negligence was
the proximate cause of the accident. Neither is it disputed that petitioner was at that time
merely an officer-in-charge of the Office of the General Counsel. He remained such only from
30 September to 2 October 1982. He rendered the questioned legal opinion on 1 October
1982, 37 on the second day of his short tenure and barely a day before it ended. There was
hardly any time for him to inquire further into the facts surrounding the incident, although he
had all the time to simply refer it to the regular General Counsel who was expected to report
back on 3 October 1982.

Page 464 of 492

Finally, the OPLGS claim for reimbursement was not referred to the NPCs governing board or
authorized officer for approval in the light of the legal opinion. By itself, the latter did not vest
him with authority to approve the claim. It was nothing but a recommendation in favor of the
claim.
Respondent Agustin then cannot be faulted when in his Certificate of Settlement and Balances
No. 01-04-83, 38 he disallowed NPCs questioned disbursement. However, in his notation as to
the persons to be liable therefor, he mentions only Mr. M.V. Villafuerte (the Approving
Authority) whose liabilities are primary; E. Gamama and P. Gajasan (Managements
Examiners) whose liabilities are secondary and joint" ; and H.L. Hermosura (Chief Accountant)
whose liability is primary. Petitioner was not found to be liable. He was made jointly and
severally liable with Villafuerte, Gajasan and Hermosura only in the Memorandum of
respondent Agustin dated 30 June 1986. 39 It may be noted that in his Memorandum he
excluded Gamama. Considering that what was sustained up to the level of the General
Counsel of the COA was the disallowance made in the aforementioned Certificate of
Settlement and Balances and necessarily, his ruling thereon as to who are the parties liable
therefor, Agustin acted arbitrarily and with grave abuse of discretion when, without prior
notice to petitioner, he made the latter liable for the disallowance and worse, he directed, in
the guise of a request, the Chief Accountant of the NPC, Metro Manila Regional Center, to book
the disallowance in the name of petitioner. Petitioner was not made a party to the motion for
reconsideration which the General Counsel of the COA acted upon. Respondent Agustin
effectively denied petitioner of his right to due process.
2. What is claimed in this case to be the decision of the COA is actually the 5th Indorsement of
Ricardo G. Nepomuceno, Jr., General Counsel thereof, which reads:chanrob1es virtual 1aw
library
x

"5th Indorsement
May 21, 1986.
Respectfully returned to the Auditor, National Power Corporation, Quezon City, concurring with
the views of the Unit Auditor, as contained in the 1st Indorsement, dated March 22, 1985, on
the refund of hospitalization expenses in favor of Domingo Abodizo.chanrobles lawlibrary :
rednad
FOR THE COMMISSION:chanrob1es virtual 1aw library
(S/T) RICARDO G. NEPOMUCENO, JR.
General Counsel" 40
It must be recalled that in his Memorandum of 14 February 1985, 41 General Counsel Ilao of
the NPC asked for a reconsideration of the disallowance and requested that the same be
forwarded to the Chairman of the COA pursuant to Item III-7 of COA Circular 81-156 dated 19
January 1981. Clearly, therefore, the motion for reconsideration became a matter for the COA

Page 465 of 492

to resolve or decide. Under the provisions of the Constitution then in force, the COA was
bound to decide it within sixty (60) days from the date of its submission for resolution. Section
2 of Article XII-D thereof reads:jgc:chanrobles.com.ph
"SEC. 2. The Commission on Audit shall have the following powers and functions:chanrob1es
virtual 1aw library
x

(2) Decide any case brought before it within sixty days from the date of its submission for
resolution. Unless otherwise provided by law, any decision, order, or ruling of the Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days
from his receipt of a copy thereof."cralaw virtua1aw library
Section 7, Article IX-A of the present Constitution also provides:jgc:chanrobles.com.ph
"SEC 7. 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."cralaw virtua1aw library
The COA, both under the 1973 and 1987 Constitutions, is a collegial body. It must resolve
cases presented to it as such Its General Counsel cannot act for the Commission for he is not
even a Commissioner thereof. He can only offer legal advice or render an opinion in order to
aid the COA in the resolution of a case or a legal question.
Thus, Nepomucenos 5th indorsement cannot, by any stretch of the imagination, be considered
as a "decision" of the COA. If the same were to be so considered, it would be void ab initio for
having been rendered by one who is not possessed with any power or authority. In Mison v.
Commission on Audit, 42 this Court held that a so-called decision, denominated as Decision
No. 77-142 by the Manager of the Technical Service Office of the COA, "by authority of the
acting chairman" is "substantively void ab initio," because it was rendered without jurisdiction.
"It had an essential inherent defect that could not be cured or waived." chanrobles virtual
lawlibrary
What Mr. Nepomuceno should have done was to render the opinion precisely sought for in the
preceding 4th indorsement of respondent Ursal dated 30 May 1985, 43 and submit the same
to the Commission for the latters guidance in resolving the motion for reconsideration.
Respondent Agustin, therefore, acted prematurely and with undue haste in implementing the
disallowance against the parties allegedly liable therefor on the basis of the favorable opinion
of Mr. Nepomuceno who, incidentally, merely concurred with his (Agustins) 22 March 1985
indorsement.
3. Even if We are to assume that the disallowance was proper, there would still be no basis for

Page 466 of 492

directly holding petitioner liable therefor together with those earlier found to be responsible by
Agustin in his Certificate of Settlement and Balances, moreover, there would be no reason to
debit immediately his account with the NPC. In the first place, as earlier stated, up to the level
of the General Counsel of the COA who acted for the Commission, it was never claimed that
petitioner was personally liable for the disallowed disbursement; only the approving authority,
the management examiners and the Chief Accountant of the NPC were deemed liable therefor.
This seemed to be proper in the light of Sections 103, 105(1) and 106 of P.D. No. 1445. Under
said Section 103, expenditures of government funds or uses of government property in
violation of law or regulations shall be a personal liability of the official or employee found
directly responsible therefor. In the instant case, while it may perhaps be true that the
petitioner had rendered the opinion which was relied upon for the disbursement, it cannot be
said that he was directly responsible therefor. His was only a legal opinion which the governing
board of the NPC or any of its authorized officials could adopt or reject in the resolution of the
request of OPLGS for reimbursement. As earlier indicated, there is no showing at all that such
governing board or any authorized official formally approved the request and granted the
authority to make the refund. Respondent then was originally correct in excluding petitioner
from the Certificate of Settlement and Balances.
It does not necessarily follow, however, that in no case may the petitioner be liable for his
legal opinion. As the then officer-in-charge of the Office of the General Counsel of NPC, he
exercised quasi-judicial functions. He was empowered with discretion and authority to render
an opinion as to whether the claim for reimbursement by the OPLGS was proper and
ultimately, to determine if the NPC or any of its employees was responsible for the accident
and, therefore, liable for the injury suffered by Abodizo under the law on quasi-delict. If he
rendered the opinion in the just performance of his official duties and within the scope of his
assigned tasks, he would not be personally liable for any injury that may result therefrom. 44
Otherwise stated, a public official may be liable in his personal capacity for whatever damage
he may have caused by his act done with malice and in bad faith or beyond the scope of his
authority or jurisdiction. 45 Paragraph (1), Section 38, Chapter 9, Book I, of the
Administrative Code of 1987 46 expressly provides:jgc:chanrobles.com.ph
"SEC. 38. Liability of superior officers. (1) A public officer shall not be civilly liable for acts
done in the performance of his official duties, unless there is a clear showing of bad faith,
malice or gross negligence."cralaw virtua1aw library
x

But whether petitioner acted with malice, bad faith or beyond the scope of his authority or
jurisdiction is a matter respondent Agustin cannot dispose of unilaterally and summarily
without infringing on the petitioners right to due process.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
WHEREFORE, the instant petition is GRANTED. The challenged 5th indorsement of the General
Counsel of the respondent Commission on Audit, dated 21 May 1986, the Memorandum of
respondent Agustin of 30 June 1986, insofar as it holds petitioner personally liable for the
disallowed disbursement and the Debit Memo, dated 22 July 1986, of the Manager of the
Accounting Department of the National Power Corporation, are hereby set aside for being null
and void.

Page 467 of 492

SO ORDERED.
Gutierrez, Jr., Bidin and Romero, JJ., concur.
Feliciano, J., is on official leave.
Endnotes:

1. Annex "I" ; Rollo, 29.

2. Annex "G" ; Rollo, 27.
3. Annex "F" ; Id., 20.
4. Annex "E" ; Id., 23-24.
5. Annex "D" ; Rollo, 22.
6. Annex "C" ; Id., 21.
7. Annex "A" ; Id., 19.
8. Annex "B" ; Id., 20.
9. Annex "K" ; Rollo, 33-34.
10. Annex "L" ; Id., 35.
11. Annex "M" ; Rollo, 36.
12. Annex "N" ; Id., 38.
13. Annex "O" ; Id., 39-40.
14. Annex "P" ; Rollo, 41.
15. Annex "Q" ; Id., 43.
16. Annex "R" ; Id., 45.
17. Annex "S" ; Id., 46.
18. Annex "T" ; Id., 47-48.
19. Annexes "U" and "V" ; Id., 49-50.

Page 468 of 492

20. Annex "W" ; Rollo, 51.

21. Annexes "X" and "Y" ; Id., 52-53.
22. Annex "Y" ; Id., 53.
23. Rollo, 8-9.
24. R.A. No. 6395.
25. Chartered Bank v. Government Auditing Office, 149 SCRA 58 [1987].
26. Rollo, 54.
27. Id., 80.
28. Id., 95-102.
29. Section 2(1), Article XII-D, 1973 Constitution; Section 2(1), Article IX-D, 1987
Constitution.
30. P.D. No. 1445.
31. Rollo, 130.
32. Section 2(1), Article XII-D, 1973 Constitution.
33. Section 2(2), Id.
34. Caltex Philippines, Inc. v. Commission on Audit, G.R. No. 92585, 8 March 1992.
35. Rollo, 29.
36. Annex "G" ; Rollo, 27.
37. Annex "B" ; Id., 20.
38. Annex "K" ; Rollo, 33-34.
39. Annex "W" ; Id., 51.
40. Annex "U" ; Rollo, 49.
41. Annex "F" ; Id., 44.
42. 187 SCRA 445 [1990].
43. Annex "T" ; Rollo, 47.

Page 469 of 492

44. Zulueta v. Nicolas, G.R. No. L-3251, 31 January 1959.

45. Chartered Bank v. National Government Auditing Office, 149 SCRA 58 [1987]; Dumlao v.
Court of Appeals, 114 SCRA 247 [1982]; Mindanao Realty Corporation v. Kintanar, 6 SCRA
814 [1962].
46. Executive Order No. 292.

EN BANC
[G.R. No. L-20568. December 28, 1964.]
RAMON A. GONZALES, Petitioner-Appellant, v. THE PROVINCIAL AUDITOR OF
ILOILO,Respondent-Appellee.
Ramon A. Gonzales for his own behalf as Petitioner-Appellant.
Provincial Fiscal A. B. Baguio and Assistant Fiscal Provincial Fiscal S. A. Barranco
forRespondent-Appellee.
SYLLABUS
1. ADMINISTRATIVE LAW; JUDICIAL REVIEW OF RULINGS OF ADMINISTRATIVE TRIBUNALS;
EXHAUSTION OF ADMINISTRATIVE REMEDIES REQUIRED. No recourse to courts can be had
until all administrative remedies have been exhausted, and special civil actions against
administrative officers should not be entertained if superior administrative officers can grant
relief.

Page 470 of 492

2. ID.; ID.; DECISION OF AUDITOR GENERAL ON SALARY CLAIM BY GOVERNMENT OFFICER

IS APPEALABLE TO THE PRESIDENT. The decision of the Auditor General on a claim for
salaries by a local government official is appealable to the President, and not to the Courts.
DECISION
ZALDIVAR, J.:
This is an appeal from the decision of the Court of First Instance of Iloilo dismissing the
petition for mandamus in the above-entitled case.
The petitioner Ramon Gonzales was appointed Assistant on Complaints and Investigation,
Office of the Governor, by Governor Jose C. Zulueta of Iloilo, effective July 1, 1961, with
compensation at the rate of P250.00 a month. At the time of his appointment the petitioner
was holding the Office of Municipal Councilor of Lambunao, Iloilo, and he had not resigned
from said office to accept the appointment in the office of the Governor.
On July 31, 1961, the petitioner presented a voucher covering his salary as Assistant on
Complaints and Investigation for July 1961 in the amount of P250.00 to the respondent
Provincial Auditor of Iloilo for audit, but said respondent refused to pass in audit the said
voucher for the reason that the petitioner continued to hold office as Councilor of Lambunao
and so he may not be legally appointed Assistant in the Office of the Governor with
compensation payable from the provincial funds. The respondent Provincial Auditor reasoned
out that said appointment was in violation of the provisions of Sec. 2175 of the Revised
Administrative Code as construed by the Secretary of Justice in his Opinion No. 121, Series of
1951.
On August 2, 1961 petitioner appealed to the Auditor General from the action of the
respondent Provincial Auditor denying to pass in audit his salary voucher for the month of July
1961. On November 26, 1961, the Auditor General upheld the action of the respondent in
denying to pass in audit the above-mentioned salary voucher of the petitioner.
Meanwhile the petitioner, in spite of the stand taken by the respondent regarding the nonaudit of his salary voucher for July 1961 on the ground that his appointment to the office of
Assistant on Complaints and Investigation was illegal, continued to serve as such Assistant
until December 31, 1961, when he resigned. Upon his resignation, the petitioner prepared a
salary voucher for P1,500.00 covering his salary for six months from July 1, 1961 to
December 31, 1961 and presented to the respondent the said voucher but the respondent
verbally informed the petitioner that he (respondent) would deny audit of the voucher for the
same reason that he denied audit of the salary voucher for P250.00 covering the salary for
July 1961.
On August 11, 1961, while acting as such Assistant in the Office of the Governor, the
petitioner obtained a cash advance of P200.00 from the office of the Provincial Treasurer for
travelling expenses within the province in connection with his duties. When the petitioner
sought the liquidation of the said cash advance by submitting a voucher for per diems the

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respondent Provincial Auditor, on June 5, 1962, again refused to pass said voucher in audit on
the same ground that he refused to pass in audit the salary vouchers aforementioned.
Because of the Refusal by the respondent Provincial Auditor to pass in audit the voucher
covering the per diems and settlement of the cash advance, the Provincial Treasurer also
refused to pay the claim of the petitioner for per diems.
Instead of appealing to the office of the President of the Philippines from the decision of the
Auditor General upholding the action of the respondent Provincial Auditor denying to pass in
audit his salary voucher for July 1961, the petitioner filed a petition for mandamus in the
Court of First Instance of Iloilo on August 31, 1962 against the respondent herein. In his
petition the petitioner prayed that the respondent be ordered to pass in audit the vouchers of
said petitioner covering his salary for P1,500.00 and per diems to liquidate the cash advance
of P200.00. The petitioner alleged that the respondent Provincial Auditor in refusing to pass in
audit the said vouchers for salaries and per diems, although those vouchers had been
approved by the Provincial Governor under the available appropriations, was in reality
unlawfully neglecting the performance of an act which the law specifically enjoins as a duty
resulting from his office. Petitioner further alleged that he had no other speedy and adequate
remedy in the ordinary course of law except the petition for mandamus which he had filed in
the present case.
The Provincial Fiscal of Iloilo, in representation of the respondent Provincial Auditor, filed an
answer, and by way of affirmative and special defenses alleged, among others, that the
petitioner had not exhausted all administrative remedies available under the law before filing
his petition for mandamus, hence the petition was premature and could not legally be
entertained by the court. The provincial Fiscal further alleged that petitioner being a duly
elected municipal councilor of Lambunao, Iloilo, and, acting as such from July 1, 1961 to
December 31, 1961, he could not at the same time legally assume the office of Assistant on
Complaints and Investigation in the Office of the Provincial Governor of Iloilo without violating
Section 2175 of the Revised Administrative Code, and consequently the petitioner was not
entitled to collect his salary as such Assistant in the Office of the Governor.
After the respondent Provincial Auditor had filed his answer the petitioner moved for judgment
on the pleadings. Over the objection of counsel for the respondent, the lower court granted
the petitioners motion for judgment on the pleadings.
On October 25, 1962 the Court of First Instance of Iloilo, in a decision handed down by Judge
Pantaleon A. Pelayo, denied the petition for mandamus. The pertinent portion of the decision
reads as follows:jgc:chanrobles.com.ph
"Section 653 of the Revised Administrative Code of the Philippines reads:chanrob1es virtual
1aw library
Any person aggrieved by the action or by any decision of a provincial or city auditor in the
settlement of an account or claim may within one year appeal to the Auditor General and any
person similarly aggrieved by the action or decision of the Auditor General may likewise within
one year appeal to the President of the Philippines.
From a decision adversely affecting the interest of the Government the appeal may be taken
by the proper Head of Department, or in case of provinces and municipalities, or other form of

Page 472 of 492

local government, by the head of the office or branch of the Government immediately
concerned.
"Said legal provisions was modified by Commonwealth Act No. 324, approved, June 18, 1938.
According to section 2 thereof the party aggrieved by the final decision of the Auditor General
in the settlement of any account or claim may, within thirty days from receipt of the decision,
take an appeal in writing to the President of the Philippines or to the Supreme Court of the
Philippines if the appellant is a private person or entity. According to Section 656 of the said
Revised Administrative Code the action of the President shall be final.
"In a recent case decided by the Supreme Court, tribunal said:chanrob1es virtual 1aw library
Appellant by his petition for mandamus, is, in effect, appealing from the decision of the
Auditor General denying his claim for gratuity. Such appeal should have been made to this
Court within 30 days from the notice of the decision. As the law now stands, the decision of
the Auditor General in cases affecting an executive department, bureau, or office of the
Government may be appealed directly to the President whose action shall be final; while those
where the aggrieved party is a private person or entity are appealable to the Supreme
Court.(Com. Act No. 327; Rule 45, Rules of Court; Radiowealth v. Agregado 86 Phil., 429, 47
Off. Gaz., Supp. December, 1951; Stiver v. Dizon, 76 Phil, 725; Abad Santos v. Auditor
General, 79 Phil. 176; Rosario v. Auditor General G. R. No. L-11817, April 30, 1958.) (See
Gaudencio Lacson v. Auditor General, Et Al., April 29, 1960, Off. Gaz. Vol. 58, No. 14, pp.
2916-2917).
"It is evident that the action is unwarranted. It does not come within the purview or operation
of the law. In other words, the facts described in the petition do not constitute a cause of
action. The Court is not authorized to grant the relief therein sought for. Petitioner has
knocked at the wrong door. What he is in search of cannot be found here, but elsewhere. So,
the action is dismissed with the costs against him."cralaw virtua1aw library
From the decision of the Court of First Instance of Iloilo the petitioner brought the present
appeal to this Court.
In his appeal, the petitioner makes the following assignment of errors:chanrob1es virtual 1aw
library
1. That the lower court erred in holding that the petitioner has no cause of action for failure to
appeal to the Supreme Court.
2. That the lower court erred in not declaring that the respondent Provincial Auditor has no
authority to declare petitioners appointment as Governors assistant as illegal and void;
3. That assuming that said respondent has such authority the lower court erred in not
declaring that petitioners appointment as Governors assistant is valid and legal;
4. That assuming that said appointment is invalid, the lower court erred in not declaring that
petitioner is a de facto officer under a defective appointment, hence entitled to compensation.
The matter to be resolved in this appeal is whether or not the lower court had correctly

Page 473 of 492

dismissed the petition for mandamus.

Regarding the first assignment of error, the decision of the lower court does not suggest at all
that the petition was dismissed because the petitioner had not appealed to the Supreme Court
from the decision of the Auditor General. The lower court simply cited the law and a decision
which have bearing on the rule regarding the exhaustion of other remedies before a resort to
a court action such as the one taken by the petitioner. What the decision pointed out was that
the petitioner should not have gone to court on a petition for mandamus because he had other
recourse and adequate remedy under the law.
Sections 2 and 3 of Article XI of the Constitution provide:jgc:chanrobles.com.ph
"Sec. 2. The Auditor General shall examine . . .; and audit, in accordance with law and
administrative regulations all expenditures of fund or property pertaining to or held in trust by
the Government or the provinces and municipalities thereof . . ."cralaw virtua1aw library
"Sec. 3. The decisions of the Auditor General shall be rendered within the time fixed by law,
and the same may be appealed to the President whose action shall be final. When the
aggrieved party is a private person or entity, an appeal from the decision of the Auditor
General may be taken directly to a court of record in the manner provided by law."cralaw
virtua1aw library
Section 2 of Commonwealth Act No. 327 provides:jgc:chanrobles.com.ph
"Sec. 2. The party aggrieved by the final decision of the Auditor General in the settlement of
an account or claim may, within thirty days from the receipt of the decision, take appeal in
writing:jgc:chanrobles.com.ph
"(a) . . .
(b) To the President of the Philippines;
(c) To the Supreme Court of the Philippines if the appellant is a private person or
entity."cralaw virtua1aw library
x

The petitioner was a person in the government service when he claimed for payment of his
salary. When the respondent Provincial Auditor refused to pass in audit his salary voucher, the
petitioner appealed to the Auditor General. The matter of passing in audit a salary voucher is
not a ministerial function. The Auditor General exercises a discretion or a quasi-judicial power
when he acts on whether to pass a salary voucher in audit or not. Certainly the Auditor
General has the power to look into the question of whether the person claiming salary
payment is entitled to the salary or not. The Auditor General may err. The decision of the
Auditor General is appealable to the President of the Philippines. When the Auditor General
sustained the action of the respondent Provincial Auditor of Iloilo in refusing to pass in audit
the salary voucher of the petitioner, what he should have done, being then a government
employee, was to appeal to the President from the decision of the Auditor General. This the

Page 474 of 492

petitioner did not do. Instead he filed the present action for mandamus in the Court of First
Instance of Iloilo. The step taken by the petitioner was not in accordance with the procedure
provided by law. The petitioner had still a recourse open to him, and that was to appeal to the
President of the Philippines. And the Constitution and the law empower the President to grant
relief to him.
The rule, that no recourse to court can be had until all administrative remedies had been
exhausted and that special civil actions against administrative officers should not be
entertained if superior administrative officers could grant relief, is squarely applicable to the
present case (Bartolome v. Auditor General, 94 Phil. 718; Primo Panti v. Provincial Board etc.
G.R. No. L-14047, Jan. 30, 1960; and Lazaro Booc v. Sergio Osmea, Jr. etc., G.R. No. L14810, May 31, 1961.)
In the case of Perfecta dela Cruz, v. Josefa de la Paz, G.R. No. L-17440, December 26, 1963,
We held:jgc:chanrobles.com.ph
"When an adequate remedy may be had within the Executive Department of the Government,
but nevertheless, a litigant fails or refuses to avail himself of the same, the judiciary shall
decline to interfere. This traditional attitude of the courts is based not only on convenience but
likewise on respect: convenience of the party litigants and respect for a co-equal office in the
government. If a remedy is available within the administrative machinery, this should be
resorted to before resort can be made to the courts, not only to give the administrative
agency opportunity to decide the matter by itself correctly, but also to prevent unnecessary
and premature resort to courts. This has been a consistent ruling in a chain of cases decided
by us. (See Jao Igco v. Shuster, 10 Phil. 448; Lamb v. Phipps, 22 Phil., 456; Miguel v. Reyes,
G.R. No. L-4851, July 31, 1963; Arnedo v. Aldanese, 63 Phil., 768; Tuan Kay v. Import
Control Commission, G.R. No. L-4427, April 31, 1952; Veloso v. Board of Accountancy, G.R.
No. L-5760, April 20, 1953; Lubugan, Et. Al. v. Castrillo and Malinay, G.R. No. L-10521, May
29,1957.)"
The decision of the lower court dismissing the petition for mandamus is in accordance with the
law and the applicable decisions of this Court. After declaring that the decision of the lower
court is correct, and We have thereby disposed of the first assignment of error, We do not
consider it necessary to pass upon the other questions raised by the petitioner in the other
errors that he had assigned in this appeal.
WHEREFORE, the decision appealed from is affirmed, with costs against the PetitionerAppellant.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala,
Makalintal and Bengzon, J.P., JJ., concur.

Page 475 of 492

EN BANC
[G.R. No. L-17171. January 30, 1965.]
FERNANDO D. GUEVARA, Petitioner, v. HON. PEDRO M. GIMENEZ, as Auditor
General,Respondent.
Ramon C. Fernandez for Petitioner.
Solicitor General for Respondent.
SYLLABUS
1. EVIDENCE; AFFIDAVITS HAVE LITTLE PROBATIVE VALUE IN A CIVIL CASE FOR RECOVERY
OF UNPAID BALANCE OF A CONTRACT. In a civil case for recovery of the unpaid balance of
a public works contract, affidavits have little probative value, especially where the affiants,
being contractors themselves, may be inclined to favor the plaintiff in his claim against the
government.
2. GOVERNMENT CONTRACTS; DISTRIBUTION OF COMPLETE COPIES OF SPECIFICATIONS TO

Page 476 of 492

BIDDERS; PRESUMPTION OF PERFORMANCE OF OFFICIAL DUTY. Where it was the duty of

government employees to distribute the complete specifications of government contracts to
prospective bidders, the claim of a winning bidder that the copy issued to him did not contain
the specifications as to painting cannot be entertained because the presumption is that official
duty has been duly performed.
3. ID.; PRACTICE OF CONTRACTORS TO VERIFY SPECIFICATIONS BEFORE SUBMITTING BID;
FAILURE TO VERIFY IS CONTRACTORS NEGLIGENCE. The practice of contractors, before
submitting any bid or proposal, is to verify with the office of the District Engineer the fund
available for a project, approval of plans, specifications and program of work and other
relevant and necessary matters in prosecuting a government contract. In the event that a
contractor dispensed with verification, he alone should bear the consequences of his
negligence.
DECISION
BENGZON, J.:
Sometime in 1954 the District Engineer of Sorsogon prepared a program of work and detailed
estimate for the reconstruction of the Sorsogon Central School building at Burabod, Sorsogon.
Specifications consisting of five pages were likewise prepared. The cost of painting was left out
in the detailed estimate and specifications. The papers were submitted to the Division
Engineer in Lucena, Quezon, who returned them duly approved with an authorized
appropriation of P40,000.00 "provided that painting shall be included." Whereupon, the
specification for painting was accordingly made and appended to the specifications as page
six.
In August 1954 the District Engineer advertised an invitation to bid for "furnishing of all
materials, labor and plant, for the reconstruction" project. Prospective bidders were required
to apply for issuance of plans, specifications and/or proposal book on which they could base
their price proposals. Among those who applied and were issued the plans and specifications
for the project was Fernando Guevara. Sealed bids were subsequently opened on September
25, 1954. Fernando Guevaras bid of P37,500.00 was declared lowest and the contract was
awarded to him. On December 17, 1954 Guevara and Casiano T. Ubalde, the latter acting for
the Director of Public Works, signed the contract. In its Article I, the complete plans and
specifications were expressly made a part of the contract. On January 31, 1955 Guevara was
furnished by mail a copy of the contract with all its appendices. Petitioner does not deny that
his copy of the contract as well as the file copy of the District Engineer contain the
specifications which include painting.
Eighty-five days after the contract was signed the construction was completed. The contract
price was paid in eight monthly amortizations during the period of construction, based upon
work satisfactorily completed during the preceding month. Guevara collected the final
payment thereon.
On May 24, 1955, or eight days after the completion of the project, Guevara filed with the

Page 477 of 492

Director of Public Works a written claim for the payment of P4,620.00 representing cost of
painting, alleging that it was not covered by the contract. After hearing, the Secretary of
Public Works and Communications denied the claim. Two petitions for reconsideration were
denied. On appeal, the Auditor General also denied the claim. Guevara has appealed to this
Court pursuant to Commonwealth Act 327.
The issue is whether or not the contract for the reconstruction of the school building included
painting.
Guevara contends that the bidders were not aware of the inclusion of painting because the
District Engineer did not add painting to the plans and specifications furnished them prior to
the bidding.
In support of his allegation Guevara presented the affidavits of two other bidders, namely,
Francisco V. Nicolas and Amado Briones. Affiants stated therein that the bids they submitted
did not include painting because the specifications given them had no such provision.
At the time of the hearing Amado Briones was already dead. The other affiant was not
presented. Under the circumstances, We entertain doubt as to the probative value of the
affidavits 1 especially because affiants, being contractors themselves, may be inclined to favor
petitioner in his claim as against the government. Affidavits are easily concocted to suit
desired ends.
We find more convincing the testimonies of Santiago P. Ojeda, Juan S. Lopez and Cesar
Gacias, senior carpenter, general foreman and clerk, respectively, in the District Engineers
office. Santiago P. Ojeda testified that when he prepared the original specifications he did not
include painting. Juan S. Lopez however, declared that when the detailed estimate and
specifications were approved by the Division Engineer, he prepared the specification for
painting. Cesar Gacias testified that his duty was to distribute the specifications to prospective
bidders; that upon receiving from Juan S. Lopez the specifications in question he sorted and
checked them; that said specifications contained six pages, with the specification for painting
appearing on the sixth page; and that copies of the complete specifications were distributed to
prospective bidders Guevara, Nicolas, Jabson and Briones. These government employees
testified as to what transpired in the performance of their duties. The presumption is that
official duty has been regularly performed (Section 5(m), Rule 131, Rules of Court). No
evidence has been adduced to overcome this presumption save the affidavits of Nicolas and
Briones, which, as afore-stated, are of doubtful probative value.
Petitioner further alleges that he discovered the inclusion of painting in the specifications only
when the painting of the building was almost completed, for, preoccupied with 13 other
projects, he had entrusted to his assistant, Leoncio Vasquez, the reconstruction of the school
building in question.
On the other hand, Santiago P. Ojeda, building inspector for the project, testified that Guevara
submitted to the District Engineer, as required, samples of the paints he (Guevara) purchased.
Hence, Guevara knew that painting was part of the specifications. Furthermore, during the
period of construction Guevara made several collections under the contract, and the vouchers
he presented therefor carried "painting and varnishing" as one of the units of work rated to
determine how much should be paid. Guevaras use of the estimate of work to support the

Page 478 of 492

vouchers display his knowledge and awareness during the construction that his contract
covered painting of the building.
We noted that subsequent to the filing of petitioners claim, his assistant, Leoncio Vasquez,
while visiting the office of the District Engineer, borrowed from the official custodian, Cesar
Gacias, the specifications for the project in question. Alert and careful in the performance of
his duty, Gacias lent Vasquez the official file copy of the specifications but only after he had
checked the number of pages composing the file. After it was returned, Gacias saw that the
file was short of one page, and the one missing was precisely page 6 of the specifications
containing the provision for painting. Whereupon, he immediately confronted Vasquez with the
discrepancy and grabbed the notebook which the latter tucked under his arm. Gacias found
folded and concealed inside the notebook the missing page. Several co- employees witnessed
the shameful incident. We express our condemnation of Vasquezs behavior.
Finally, petitioner Guevara, a civil engineer, has twenty years experience as public works
contractor. He must have acquired first- hand knowledge of the mechanics of government
contracting as well as skill in administering construction contracts. The other 13 projects he
said he had justify our impression. The practice of contractors, before submitting any bid or
proposal, is to verify with the office of the District Engineer the fund available for a project,
approval of the plans, specifications and program of work and other relevant and necessary
matters in prosecuting a government contract. From his experience and know-how We can be
certain that petitioner, prior to submission of his bids, called on the District Engineer of
Sorsogon to make his verification. By doing so, he would have noted the first indorsement
dated August 9, 1954 approving the detailed estimate and program of work and requiring that
painting be included. From that moment, he must have been aware that he would bid for a
construction work that included painting. In the event that Guevara dispensed with
verification, he alone should bear the consequences of his negligence.
Our finding therefore is that the contract between Fernando Guevara and the Bureau of Public
Works provided for the painting of the school building. As petitioner has been fully paid the
contract price of P37,500.00, no additional payment is due.
WHEREFORE, We hereby affirm the decision of the Auditor General, with costs against
petitioner. It is so ordered.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal and
Zaldivar, JJ., concur.
Endnotes:

1. See People v. Logrono, L-5714-15, Feb. 25, 1955; Libuit v. Auditor General, L-10160, June
28, 1957.

Page 479 of 492

EN BANC

[G.R. No. 147402. January 14, 2004]

ENGR. RANULFO C. FELICIANO, in his capacity as General Manager of the Leyte Metropolitan Water
District (LMWD), Tacloban City, petitioner, vs. COMMISSION ON AUDIT, Chairman CELSO D.
GANGAN, Commissioners RAUL C. FLORES and EMMANUEL M. DALMAN, and Regional
Director of COA Region VIII, respondents.
DECISION
CARPIO, J.:

The Case
This is a petition for certiorari[1] to annul the Commission on Audits (COA) Resolution dated 3 January
2000 and the Decision dated 30 January 2001 denying the Motion for Reconsideration. The COA denied

Page 480 of 492

petitioner Ranulfo C. Felicianos request for COA to cease all audit services, and to stop charging auditing
fees, to Leyte Metropolitan Water District (LMWD). The COA also denied petitioners request for COA to
refund all auditing fees previously paid by LMWD.

Antecedent Facts
A Special Audit Team from COA Regional Office No. VIII audited the accounts of LMWD. Subsequently,
LMWD received a letter from COA dated 19 July 1999 requesting payment of auditing fees. As General
Manager of LMWD, petitioner sent a reply dated 12 October 1999 informing COAs Regional Director that the
water district could not pay the auditing fees. Petitioner cited as basis for his action Sections 6 and 20 of
Presidential Decree 198 (PD 198)[2], as well as Section 18 of Republic Act No. 6758 (RA 6758). The
Regional Director referred petitioners reply to the COA Chairman on 18 October 1999.
On 19 October 1999, petitioner wrote COA through the Regional Director asking for refund of all
auditing fees LMWD previously paid to COA.
On 16 March 2000, petitioner received COA Chairman Celso D. Gangans Resolution dated 3 January
2000 denying his requests. Petitioner filed a motion for reconsideration on 31 March 2000, which COA
denied on 30 January 2001.
On 13 March 2001, petitioner filed this instant petition. Attached to the petition were resolutions of the
Visayas Association of Water Districts (VAWD) and the Philippine Association of Water Districts (PAWD)
supporting the petition.

The Ruling of the Commission on Audit

The COA ruled that this Court has already settled COAs audit jurisdiction over local water districts
in Davao City Water District v. Civil Service Commission and Commission on Audit,[3] as follows:
The above-quoted provision [referring to Section 3(b) PD 198] definitely sets to naught petitioners contention that they
are private corporations. It is clear therefrom that the power to appoint the members who will comprise the members of
the Board of Directors belong to the local executives of the local subdivision unit where such districts are located. In
contrast, the members of the Board of Directors or the trustees of a private corporation are elected from among
members or stockholders thereof. It would not be amiss at this point to emphasize that a private corporation is created
for the private purpose, benefit, aim and end of its members or stockholders. Necessarily, said members or stockholders
should be given a free hand to choose who will compose the governing body of their corporation. But this is not the
case here and this clearly indicates that petitioners are not private corporations.
The COA also denied petitioners request for COA to stop charging auditing fees as well as petitioners
request for COA to refund all auditing fees already paid.

The Issues
Petitioner contends that COA committed grave abuse of discretion amounting to lack or excess of
jurisdiction by auditing LMWD and requiring it to pay auditing fees. Petitioner raises the following issues for
resolution:

Page 481 of 492

1. Whether a Local Water District (LWD) created under PD 198, as amended, is a government-owned or
controlled corporation subject to the audit jurisdiction of COA;
2. Whether Section 20 of PD 198, as amended, prohibits COAs certified public accountants from auditing
local water districts; and
3. Whether Section 18 of RA 6758 prohibits the COA from charging government-owned and controlled
corporations auditing fees.

The Ruling of the Court

The petition lacks merit.
The Constitution and existing laws[4] mandate COA to audit all government agencies, including
government-owned and controlled corporations (GOCCs) with original charters. An LWD is a GOCC with an
original charter. Section 2(1), Article IX-D of the Constitution provides for COAs audit jurisdiction, as follows:
SECTION 2. (1) The Commission on Audit shall have the power, authority and duty to examine, audit, and settle all
accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in
trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including
government-owned and controlled corporations with original charters, and on a post-audit basis: (a) constitutional
bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state
colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such
non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which
are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However,
where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures,
including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the
general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other
supporting papers pertaining thereto. (Emphasis supplied)
The COAs audit jurisdiction extends not only to government agencies or instrumentalities, but also to
government-owned and controlled corporations with original charters as well as other government-owned or
controlled corporations without original charters.

Whether LWDs are Private or Government-Owned

and Controlled Corporations with Original Charters
Petitioner seeks to revive a well-settled issue. Petitioner asks for a re-examination of a doctrine backed
by a long line of cases culminating in Davao City Water District v. Civil Service Commission[5] and just
recently reiterated in De Jesus v. Commission on Audit.[6] Petitioner maintains that LWDs are not
government-owned and controlled corporations with original charters. Petitioner even argues that LWDs are
private corporations. Petitioner asks the Court to consider certain interpretations of the applicable laws,
which would give a new perspective to the issue of the true character of water districts.[7]
Petitioner theorizes that what PD 198 created was the Local Waters Utilities Administration (LWUA) and
not the LWDs. Petitioner claims that LWDs are created pursuant to and not created directly by PD
198. Thus, petitioner concludes that PD 198 is not an original charter that would place LWDs within the audit
jurisdiction of COA as defined in Section 2(1), Article IX-D of the Constitution. Petitioner elaborates that PD

Page 482 of 492

198 does not create LWDs since it does not expressly direct the creation of such entities, but only provides
for their formation on an optional or voluntary basis.[8] Petitioner adds that the operative act that creates an
LWD is the approval of the Sanggunian Resolution as specified in PD 198.
Petitioners contention deserves scant consideration.
We begin by explaining the general framework under the fundamental law. The Constitution recognizes
two classes of corporations. The first refers to private corporations created under a general law. The second
refers to government-owned or controlled corporations created by special charters. Section 16, Article XII of
the Constitution provides:
Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations. Government-owned or 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.
The Constitution emphatically prohibits the creation of private corporations except by a general law
applicable to all citizens.[9] The purpose of this constitutional provision is to ban private corporations created
by special charters, which historically gave certain individuals, families or groups special privileges denied to
other citizens.[10]
In short, Congress cannot enact a law creating a private corporation with a special charter. Such
legislation would be unconstitutional. Private corporations may exist only under a general law. If the
corporation is private, it must necessarily exist under a general law. Stated differently, only corporations
created under a general law can qualify as private corporations. Under existing laws, that general law is the
Corporation Code,[11] except that the Cooperative Code governs the incorporation of cooperatives.[12]
The Constitution authorizes Congress to create government-owned or controlled corporations through
special charters. Since private corporations cannot have special charters, it follows that Congress can create
corporations with special charters only if such corporations are government-owned or controlled.
Obviously, LWDs are not private corporations because they are not created under the Corporation
Code. LWDs are not registered with the Securities and Exchange Commission. Section 14 of the
Corporation Code states that [A]ll corporations organized under this code shall file with the Securities and
Exchange Commission articles of incorporation x x x. LWDs have no articles of incorporation, no
incorporators and no stockholders or members. There are no stockholders or members to elect the board
directors of LWDs as in the case of all corporations registered with the Securities and Exchange
Commission. The local mayor or the provincial governor appoints the directors of LWDs for a fixed term of
office. This Court has ruled that LWDs are not created under the Corporation Code, thus:
From the foregoing pronouncement, it is clear that what has been excluded from the coverage of the CSC are those
corporations created pursuant to the Corporation Code. Significantly, petitioners are not created under the said
code, but on the contrary, they were created pursuant to a special law and are governed primarily by its
provision.[13] (Emphasis supplied)
LWDs exist by virtue of PD 198, which constitutes their special charter. Since under the Constitution
only government-owned or controlled corporations may have special charters, LWDs can validly exist only if
they are government-owned or controlled. To claim that LWDs are private corporations with a special charter
is to admit that their existence is constitutionally infirm.
Unlike private corporations, which derive their legal existence and power from the Corporation Code,
LWDs derive their legal existence and power from PD 198. Sections 6 and 25 of PD 198[14] provide:
Section 6. Formation of District. This Act is the source of authorization and power to form and maintain a
district. For purposes of this Act, a district shall be considered as a quasi-public corporation performing public
Page 483 of 492

service and supplying public wants. As such, a district shall exercise the powers, rights and privileges given to
private corporations under existing laws, in addition to the powers granted in, and subject to such restrictions
imposed, under this Act.
(a) The name of the local water district, which shall include the name of the city, municipality, or province, or region
thereof, served by said system, followed by the words Water District.
(b) A description of the boundary of the district. In the case of a city or municipality, such boundary may include all
lands within the city or municipality. A district may include one or more municipalities, cities or provinces, or portions
thereof.
(c) A statement completely transferring any and all waterworks and/or sewerage facilities managed, operated by or
under the control of such city, municipality or province to such district upon the filing of resolution forming the district.
(d) A statement identifying the purpose for which the district is formed, which shall include those purposes outlined in
Section 5 above.
(e) The names of the initial directors of the district with the date of expiration of term of office for each.
(f) A statement that the district may only be dissolved on the grounds and under the conditions set forth in Section 44
of this Title.
(g) A statement acknowledging the powers, rights and obligations as set forth in Section 36 of this Title.
Nothing in the resolution of formation shall state or infer that the local legislative body has the power to dissolve, alter
or affect the district beyond that specifically provided for in this Act.
If two or more cities, municipalities or provinces, or any combination thereof, desire to form a single district, a similar
resolution shall be adopted in each city, municipality and province.
xxx
Sec. 25. Authorization. The district may exercise all the powers which are expressly granted by this Title or which
are necessarily implied from or incidental to the powers and purposes herein stated. For the purpose of carrying
out the objectives of this Act, a district is hereby granted the power of eminent domain, the exercise thereof shall,
however, be subject to review by the Administration. (Emphasis supplied)
Clearly, LWDs exist as corporations only by virtue of PD 198, which expressly confers on LWDs
corporate powers. Section 6 of PD 198 provides that LWDs shall exercise the powers, rights and privileges
given to private corporations under existing laws. Without PD 198, LWDs would have no corporate
powers. Thus, PD 198 constitutes the special enabling charter of LWDs. The ineluctable conclusion is that
LWDs are government-owned and controlled corporations with a special charter.
The phrase government-owned and controlled corporations with original charters means GOCCs
created under special laws and not under the general incorporation law. There is no difference between the
term original charters and special charters. The Court clarified this in National Service Corporation v.
NLRC[15] by citing the deliberations in the Constitutional Commission, as follows:
THE PRESIDING OFFICER (Mr. Trenas). The session is resumed.

Page 484 of 492

Commissioner Romulo is recognized.

MR. ROMULO. Mr. Presiding Officer, I am amending my original proposed amendment to now read as follows:
including government-owned or controlled corporations WITH ORIGINAL CHARTERS. The purpose of this
amendment is to indicate that government corporations such as the GSIS and SSS, which have original charters, fall
within the ambit of the civil service. However, corporations which are subsidiaries of these chartered agencies such as
the Philippine Airlines, Manila Hotel and Hyatt are excluded from the coverage of the civil service.
THE PRESIDING OFFICER (Mr. Trenas). What does the Committee say?
MR. FOZ. Just one question, Mr. Presiding Officer. By the term original charters, what exactly do we mean?
MR. ROMULO. We mean that they were created by law, by an act of Congress, or by special law.
MR. FOZ. And not under the general corporation law.
MR. ROMULO. That is correct. Mr. Presiding Officer.
MR. FOZ. With that understanding and clarification, the Committee accepts the amendment.
MR. NATIVIDAD. Mr. Presiding Officer, so those created by the general corporation law are out.
MR. ROMULO. That is correct. (Emphasis supplied)
Again, in Davao City Water District v. Civil Service Commission,[16] the Court reiterated the meaning
of the phrase government-owned and controlled corporations with original charters in this wise:
By government-owned or controlled corporation with original charter, We mean government owned or
controlled corporation created by a special law and not under the Corporation Code of the Philippines. Thus, in
the case of Lumanta v. NLRC (G.R. No. 82819, February 8, 1989, 170 SCRA 79, 82), We held:
The Court, in National Service Corporation (NASECO) v. National Labor Relations Commission, G.R. No. 69870,
promulgated on 29 November 1988, quoting extensively from the deliberations of the 1986 Constitutional
Commission in respect of the intent and meaning of the new phrase with original charter, in effect held that
government-owned and controlled corporations with original charter refer to corporations chartered by special
law as distinguished from corporations organized under our general incorporation statute the Corporation
Code. In NASECO, the company involved had been organized under the general incorporation statute and was a
subsidiary of the National Investment Development Corporation (NIDC) which in turn was a subsidiary of the
Philippine National Bank, a bank chartered by a special statute. Thus, government-owned or controlled corporations
like NASECO are effectively, excluded from the scope of the Civil Service. (Emphasis supplied)
Petitioners contention that the Sangguniang Bayan resolution creates the LWDs assumes that the
Sangguniang Bayan has the power to create corporations. This is a patently baseless assumption. The
Local Government Code[17] does not vest in the Sangguniang Bayan the power to create
corporations.[18] What the Local Government Code empowers the Sangguniang Bayan to do is to provide for
the establishment of a waterworks system subject to existing laws. Thus, Section 447(5)(vii) of the Local
Government Code provides:
SECTION 447. Powers, Duties, Functions and Compensation. (a) The sangguniang bayan, as the legislative body of
the municipality, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the
Page 485 of 492

municipality and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the municipality as provided for under Section 22 of this Code, and shall:
xxx
(vii) Subject to existing laws, provide for the establishment, operation, maintenance, and repair of an efficient
waterworks system to supply water for the inhabitants; regulate the construction, maintenance, repair and use of
hydrants, pumps, cisterns and reservoirs; protect the purity and quantity of the water supply of the municipality and, for
this purpose, extend the coverage of appropriate ordinances over all territory within the drainage area of said water
supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or watershed
used in connection with the water service; and regulate the consumption, use or wastage of water;
x x x. (Emphasis supplied)
The Sangguniang Bayan may establish a waterworks system only in accordance with the provisions of
PD 198. The Sangguniang Bayan has no power to create a corporate entity that will operate its waterworks
system. However, the Sangguniang Bayan may avail of existing enabling laws, like PD 198, to form and
incorporate a water district. Besides, even assuming for the sake of argument that the Sangguniang Bayan
has the power to create corporations, the LWDs would remain government-owned or controlled corporations
subject to COAs audit jurisdiction. The resolution of the Sangguniang Bayan would constitute an LWDs
special charter, making the LWD a government-owned and controlled corporation with an original charter. In
any event, the Court has already ruled in Baguio Water District v. Trajano[19] that the Sangguniang Bayan
resolution is not the special charter of LWDs, thus:
While it is true that a resolution of a local sanggunian is still necessary for the final creation of a district, this Court is of
the opinion that said resolution cannot be considered as its charter, the same being intended only to implement the
provisions of said decree.
Petitioner further contends that a law must create directly and explicitly a GOCC in order that it may
have an original charter. In short, petitioner argues that one special law cannot serve as enabling law for
several GOCCs but only for one GOCC. Section 16, Article XII of the Constitution mandates that
Congress shall not, except by general law,[20] provide for the creation of private corporations. Thus, the
Constitution prohibits one special law to create one private corporation, requiring instead a general law to
create private corporations. In contrast, the same Section 16 states that Government-owned or controlled
corporations may be created or established by special charters. Thus, the Constitution permits Congress to
create a GOCC with a special charter. There is, however, no prohibition on Congress to create several
GOCCs of the same class under one special enabling charter.
The rationale behind the prohibition on private corporations having special charters does not apply to
GOCCs. There is no danger of creating special privileges to certain individuals, families or groups if there is
one special law creating each GOCC. Certainly, such danger will not exist whether one special law creates
one GOCC, or one special enabling law creates several GOCCs. Thus, Congress may create GOCCs either
by special charters specific to each GOCC, or by one special enabling charter applicable to a class of
GOCCs, like PD 198 which applies only to LWDs.
Petitioner also contends that LWDs are private corporations because Section 6 of PD 198[21] declares
that LWDs shall be considered quasi-public in nature. Petitioners rationale is that only private corporations
may be deemed quasi-public and not public corporations.Put differently, petitioner rationalizes that a public
corporation cannot be deemed quasi-public because such corporation is already public. Petitioner concludes
that the term quasi-public can only apply to private corporations. Petitioners argument is inconsequential.

Page 486 of 492

Petitioner forgets that the constitutional criterion on the exercise of COAs audit jurisdiction depends on
the governments ownership or control of a corporation. The nature of the corporation, whether it is private,
quasi-public, or public is immaterial.
The Constitution vests in the COA audit jurisdiction over government-owned and controlled corporations
with original charters, as well as government-owned or controlled corporations without original
charters. GOCCs with original charters are subject to COA pre-audit, while GOCCs without original charters
are subject to COA post-audit. GOCCs without original charters refer to corporations created under the
Corporation Code but are owned or controlled by the government. The nature or purpose of the corporation
is not material in determining COAs audit jurisdiction. Neither is the manner of creation of a corporation,
whether under a general or special law.
The determining factor of COAs audit jurisdiction is government ownership or control of the
corporation. In Philippine Veterans Bank Employees Union-NUBE v. Philippine Veterans Bank,[22] the
Court even ruled that the criterion of ownership and control is more important than the issue of original
charter, thus:
This point is important because the Constitution provides in its Article IX-B, Section 2(1) that the Civil Service
embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned
or controlled corporations with original charters. As the Bank is not owned or controlled by the Government
although it does have an original charter in the form of R.A. No. 3518,[23] it clearly does not fall under the Civil
Service and should be regarded as an ordinary commercial corporation. Section 28 of the said law so
provides. The consequence is that the relations of the Bank with its employees should be governed by the labor laws,
under which in fact they have already been paid some of their claims. (Emphasis supplied)
Certainly, the government owns and controls LWDs. The government organizes LWDs in accordance
with a specific law, PD 198. There is no private party involved as co-owner in the creation of an LWD. Just
prior to the creation of LWDs, the national or local government owns and controls all their assets. The
government controls LWDs because under PD 198 the municipal or city mayor, or the provincial governor,
appoints all the board directors of an LWD for a fixed term of six years.[24] The board directors of LWDs are
not co-owners of the LWDs. LWDs have no private stockholders or members. The board directors and other
personnel of LWDs are government employees subject to civil service laws[25] and anti-graft laws.[26]
While Section 8 of PD 198 states that [N]o public official shall serve as director of an LWD, it only
means that the appointees to the board of directors of LWDs shall come from the private sector. Once such
private sector representatives assume office as directors, they become public officials governed by the civil
service law and anti-graft laws. Otherwise, Section 8 of PD 198 would contravene Section 2(1), Article IX-B
of the Constitution declaring that the civil service includes government-owned or controlled corporations with
original charters.
If LWDs are neither GOCCs with original charters nor GOCCs without original charters, then they would
fall under the term agencies or instrumentalities of the government and thus still subject to COAs audit
jurisdiction. However, the stark and undeniable fact is that the government owns LWDs. Section 45[27] of PD
198 recognizes government ownership of LWDs when Section 45 states that the board of directors may
dissolve an LWD only on the condition that another public entity has acquired the assets of the district and
has assumed all obligations and liabilities attached thereto. The implication is clear that an LWD is a public
and not a private entity.
Petitioner does not allege that some entity other than the government owns or controls LWDs. Instead,
petitioner advances the theory that the Water Districts owner is the District itself.[28] Assuming for the sake of
argument that an LWD is self-owned,[29] as petitioner describes an LWD, the government in any event
controls all LWDs. First, government officials appoint all LWD directors to a fixed term of office. Second,
any per diem of LWD directors in excess of P50 is subject to the approval of the Local Water Utilities
Administration, and directors can receive no other compensation for their services to the LWD.[30] Third, the
Page 487 of 492

Local Water Utilities Administration can require LWDs to merge or consolidate their facilities or
operations.[31] This element of government control subjects LWDs to COAs audit jurisdiction.
Petitioner argues that upon the enactment of PD 198, LWDs became private entities through the
transfer of ownership of water facilities from local government units to their respective water districts as
mandated by PD 198. Petitioner is grasping at straws. Privatization involves the transfer of government
assets to a private entity. Petitioner concedes that the owner of the assets transferred under Section 6 (c) of
PD 198 is no other than the LWD itself.[32] The transfer of assets mandated by PD 198 is a transfer of the
water systems facilities managed, operated by or under the control of such city, municipality or province to
such (water) district.[33] In short, the transfer is from one government entity to another government entity. PD
198 is bereft of any indication that the transfer is to privatize the operation and control of water systems.
Finally, petitioner claims that even on the assumption that the government owns and controls LWDs,
Section 20 of PD 198 prevents COA from auditing LWDs. [34] Section 20 of PD 198 provides:
Sec. 20. System of Business Administration. The Board shall, as soon as practicable, prescribe and define by resolution
a system of business administration and accounting for the district, which shall be patterned upon and conform to the
standards established by the Administration. Auditing shall be performed by a certified public accountant not in
the government service. The Administration may, however, conduct annual audits of the fiscal operations of the
district to be performed by an auditor retained by the Administration. Expenses incurred in connection therewith shall
be borne equally by the water district concerned and the Administration.[35] (Emphasis supplied)
Petitioner argues that PD 198 expressly prohibits COA auditors, or any government auditor for that matter,
from auditing LWDs. Petitioner asserts that this is the import of the second sentence of Section 20 of PD
198 when it states that [A]uditing shall be performed by a certified public accountant not in the government
service.[36]
PD 198 cannot prevail over the Constitution. No amount of clever legislation can exclude GOCCs like
LWDs from COAs audit jurisdiction. Section 3, Article IX-C of the Constitution outlaws any scheme or devise
to escape COAs audit jurisdiction, thus:
Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any
investment of public funds, from the jurisdiction of the Commission on Audit. (Emphasis supplied)
The framers of the Constitution added Section 3, Article IX-D of the Constitution precisely to annul
provisions of Presidential Decrees, like that of Section 20 of PD 198, that exempt GOCCs from COA
audit. The following exchange in the deliberations of the Constitutional Commission elucidates this intent of
the framers:
MR. OPLE: I propose to add a new section on line 9, page 2 of the amended committee report which reads: NO LAW
SHALL BE PASSED EXEMPTING ANY ENTITY OF THE GOVERNMENT OR ITS SUBSIDIARY IN ANY
GUISE WHATEVER, OR ANY INVESTMENTS OF PUBLIC FUNDS, FROM THE JURISDICTION OF THE
COMMISSION ON AUDIT.
May I explain my reasons on record.
We know that a number of entities of the government took advantage of the absence of a legislature in the past
to obtain presidential decrees exempting themselves from the jurisdiction of the Commission on Audit, one
notable example of which is the Philippine National Oil Company which is really an empty shell. It is a holding
corporation by itself, and strictly on its own account. Its funds were not very impressive in quantity but underneath that
shell there were billions of pesos in a multiplicity of companies. The PNOC the empty shell under a presidential decree

Page 488 of 492

was covered by the jurisdiction of the Commission on Audit, but the billions of pesos invested in different corporations
underneath it were exempted from the coverage of the Commission on Audit.
Another example is the United Coconut Planters Bank. The Commission on Audit has determined that the coconut levy
is a form of taxation; and that, therefore, these funds attributed to the shares of 1,400,000 coconut farmers are, in effect,
public funds. And that was, I think, the basis of the PCGG in undertaking that last major sequestration of up to 94
percent of all the shares in the United Coconut Planters Bank. The charter of the UCPB, through a presidential decree,
exempted it from the jurisdiction of the Commission on Audit, it being a private organization.
So these are the fetuses of future abuse that we are slaying right here with this additional section.
May I repeat the amendment, Madam President: NO LAW SHALL BE PASSED EXEMPTING ANY ENTITY OF
THE GOVERNMENT OR ITS SUBSIDIARY IN ANY GUISE WHATEVER, OR ANY INVESTMENTS OF
PUBLIC FUNDS, FROM THE JURISDICTION OF THE COMMISSION ON AUDIT.
THE PRESIDENT: May we know the position of the Committee on the proposed amendment of Commissioner Ople?
MR. JAMIR: If the honorable Commissioner will change the number of the section to 4, we will accept the
amendment.
MR. OPLE: Gladly, Madam President. Thank you.
MR. DE CASTRO: Madam President, point of inquiry on the new amendment.
THE PRESIDENT: Commissioner de Castro is recognized.
MR. DE CASTRO: Thank you. May I just ask a few questions of Commissioner Ople.
Is that not included in Section 2 (1) where it states: (c) government-owned or controlled corporations and their
subsidiaries? So that if these government-owned and controlled corporations and their subsidiaries are subjected to the
audit of the COA, any law exempting certain government corporations or subsidiaries will be already unconstitutional.
So I believe, Madam President, that the proposed amendment is unnecessary.
MR. MONSOD: Madam President, since this has been accepted, we would like to reply to the point raised by
Commissioner de Castro.
THE PRESIDENT: Commissioner Monsod will please proceed.
MR. MONSOD: I think the Commissioner is trying to avoid the situation that happened in the past, because the same
provision was in the 1973 Constitution and yet somehow a law or a decree was passed where certain institutions were
exempted from audit. We are just reaffirming, emphasizing, the role of the Commission on Audit so that this problem
will never arise in the future.[37]
There is an irreconcilable conflict between the second sentence of Section 20 of PD 198 prohibiting
COA auditors from auditing LWDs and Sections 2(1) and 3, Article IX-D of the Constitution vesting in COA
the power to audit all GOCCs. We rule that the second sentence of Section 20 of PD 198 is unconstitutional
since it violates Sections 2(1) and 3, Article IX-D of the Constitution.

Page 489 of 492

On the Legality of COAs

Practice of Charging Auditing Fees
Petitioner claims that the auditing fees COA charges LWDs for audit services violate the prohibition in
Section 18 of RA 6758,[38] which states:
Sec. 18. Additional Compensation of Commission on Audit Personnel and of other Agencies. In order to preserve the
independence and integrity of the Commission on Audit (COA), its officials and employees are prohibited from
receiving salaries, honoraria, bonuses, allowances or other emoluments from any government entity, local government
unit, government-owned or controlled corporations, and government financial institutions, except those compensation
paid directly by COA out of its appropriations and contributions.
Government entities, including government-owned or controlled corporations including financial institutions and local
government units are hereby prohibited from assessing or billing other government entities, including governmentowned or controlled corporations including financial institutions or local government units for services rendered by its
officials and employees as part of their regular functions for purposes of paying additional compensation to said
officials and employees. (Emphasis supplied)
Claiming that Section 18 is absolute and leaves no doubt,[39] petitioner asks COA to discontinue its practice
of charging auditing fees to LWDs since such practice allegedly violates the law.
Petitioners claim has no basis.
Section 18 of RA 6758 prohibits COA personnel from receiving any kind of compensation from any
government entity except compensation paid directly by COA out of its appropriations and
contributions. Thus, RA 6758 itself recognizes an exception to the statutory ban on COA personnel
receiving compensation from GOCCs. In Tejada v. Domingo,[40] the Court declared:
There can be no question that Section 18 of Republic Act No. 6758 is designed to strengthen further the policy x x x to
preserve the independence and integrity of the COA, by explicitly PROHIBITING: (1) COA officials and employees
from receiving salaries, honoraria, bonuses, allowances or other emoluments from any government entity, local
government unit, GOCCs and government financial institutions, except such compensation paid directly by the COA
out of its appropriations and contributions, and (2) government entities, including GOCCs, government financial
institutions and local government units from assessing or billing other government entities, GOCCs, government
financial institutions or local government units for services rendered by the latters officials and employees as part of
their regular functions for purposes of paying additional compensation to said officials and employees.
xxx
The first aspect of the strategy is directed to the COA itself, while the second aspect is addressed directly against the
GOCCs and government financial institutions. Under the first, COA personnel assigned to auditing units of
GOCCs or government financial institutions can receive only such salaries, allowances or fringe benefits paid
directly by the COA out of its appropriations and contributions. The contributions referred to are the cost of
audit services earlier mentioned which cannot include the extra emoluments or benefits now claimed by
petitioners. The COA is further barred from assessing or billing GOCCs and government financial institutions for
services rendered by its personnel as part of their regular audit functions for purposes of paying additional
compensation to such personnel. x x x. (Emphasis supplied)
In Tejada, the Court explained the meaning of the word contributions in Section 18 of RA 6758, which
allows COA to charge GOCCs the cost of its audit services:

Page 490 of 492

x x x the contributions from the GOCCs are limited to the cost of audit services which are based on the actual cost of
the audit function in the corporation concerned plus a reasonable rate to cover overhead expenses. The actual audit cost
shall include personnel services, maintenance and other operating expenses, depreciation on capital and equipment and
out-of-pocket expenses. In respect to the allowances and fringe benefits granted by the GOCCs to the COA personnel
assigned to the formers auditing units, the same shall be directly defrayed by COA from its own appropriations x x
x. [41]
COA may charge GOCCs actual audit cost but GOCCs must pay the same directly to COA and not to COA
auditors. Petitioner has not alleged that COA charges LWDs auditing fees in excess of COAs actual audit
cost. Neither has petitioner alleged that the auditing fees are paid by LWDs directly to individual COA
auditors. Thus, petitioners contention must fail.
WHEREFORE, the Resolution of the Commission on Audit dated 3 January 2000 and the Decision
dated 30 January 2001 denying petitioners Motion for Reconsideration are AFFIRMED. The second
sentence of Section 20 of Presidential Decree No. 198 is declared VOID for being inconsistent with Sections
2 (1) and 3, Article IX-D of the Constitution. No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, and Tinga, JJ., concur.

[1]

Under Rule 64 of the 1997 Revised Rules of Court.

[2]

As amended by Presidential Decrees Nos. 768 and 1479.

[3]

G.R. No. 95237-38, 13 September 1991, 201 SCRA 593.

[4]

Section 26, Government Auditing Code of the Philippines.

[5]

Supra note 3.

[6]

G.R. No. 149154, 10 June 2003.

[7]

Rollo, p. 7.

[8]

Ibid., p. 29.

[9]

See National Development Company v.

December 1990, 192 SCRA 257.

Philippine

Veterans

Bank,

G.R.

Nos.

84132-33,

10

[10]

BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY

1181 (2003).

[11]

Batas Pambansa Blg. 68.

[12]

Republic Act. No. 6938. See also Republic Act No. 6939 or the Cooperative Development Authority Law.

[13]

Supra note 3.

[14]

As amended by PD 1479.

[15]

G.R. No. L-69870, 29 November 1988, 168 SCRA 122.

[16]

Supra note 3.

[17]

Republic Act No. 7160.

Page 491 of 492

[18]

See Section 447 of the Local Government Code on the powers of the Sangguniang Bayan.

[19]

212 Phil. 674 (1984).

[20]

Emphasis supplied.

[21]

As amended by PD 1479.

[22]

G.R. No. 67125, 24 August 1990, 189 SCRA 14.

[23]

Under Section 3 of Republic Act No. 7169 which took effect on 2 January 1992, the operations and
changes in the capital structure of the Veterans Bank, as well as other amendments to its articles of
incorporation and by-laws as prescribed under Republic Act No. 3518, shall be in accordance with
the Corporation Code, the General Banking Act, and other related laws.

[24]

Section 3 (b) of PD 198 provides:

(b) Appointing Authority. The person empowered to appoint the members of the Board of Directors of a local
water district depending upon the geographic coverage and population make-up of the particular
district. In the event that more than seventy-five percent of the total active water service connections
of local water districts are within the boundary of any city or municipality, the appointing authority
shall be the mayor of the city or municipality, as the case may be; otherwise, the appointing authority
shall be the governor of the province within which the district is located: Provided, That if the existing
waterworks system in the city or municipality established as a water district under this Decree is
operated and managed by the province, initial appointment shall be extended by the governor of the
province. Subsequent appointments shall be as specified as herein.
If portions of more than one province are included within the boundary of the district, and the appointing
authority is to be the governor, then the power to appoint shall rotate between the governors
involved with the initial appointments made by the governor in whose province the greatest number
of service connections exists.
[25]

Baguio Water District v. Trajano, supra note 20; Davao City Water District v. Civil Service Commission,
supra note 3.

[26]

Morales v. People, G.R. No. 144047, 26 July 2002, 385 SCRA 259.

[27]

As amended by PD 768.

[28]

Rollo, p. 16.

[29]

Ibid.

[30]

Section 13, PD 198.

[31]

Section 43, PD 198.

[32]

Rollo, p. 644.

[33]

Section 6(c) of PD 198, as amended by PD 768.

[34]

Supra note 2.

[35]

Section 20 of PD 198, as amended by PD 768.

[36]

Rollo, p. 9.

[37]

Record of the Constitutional Commission, Vol. I, pp. 606-607.

[38]

Compensation and Position Classification Act of 1989.

Page 492 of 492

[39]

Rollo, p. 11.

[40]

G.R. No. 91860, 13 January 1992, 205 SCRA 138.

[41]

Ibid.

Page 493 of 493