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Table of Contents
CRISTOBAL v. MELCHOR ................................................................................ 1


G.R. No. L-43203 July 29, 1977

SABELLO v DECS ............................................................................................... 3


MONSANTO v. FACTORAN ............................................................................ 4


Cabagnot vs CSC ................................................................................................. 6

GLORIA v. DE GUZMAN (supra) .................................................................... 8

TUPAS v. NHC .................................................................................................... 9

SSSEA v. CA ....................................................................................................... 11

Bangalisan v. CA................................................................................................ 12

Jesus Borromeo vs. CSC and Secretary of DBM (1991)................................. 13

LOPEZ v. CA ...................................................................................................... 15
VITAL GOZON v. CA ...................................................................................... 17
Mancenido v. CA ............................................................................................... 18

Santos v. CA ....................................................................................................... 19
PEOPLE v. JALOSJOS ....................................................................................... 20

Cena v CSC ......................................................................................................... 23

RABOR V. CIVIL SERVICE COMMISSION .................................................. 26

GSIS v. COA ....................................................................................................... 27

NERI v. SENATE ............................................................................................... 29
DISSENTING OPINION PUNO, C.J............................................................... 33

QUISUMBING, J.: .............................................................................................. 34

SEPARATE DISSENTING OPINION, AZCUNA, .J.: ................................... 34

separate opinion, j. reyes .................................................................................. 34

On July 1, 1961, Cristobal was appointed as Private Secretary I (Item 9) in the

Budget for the Presidents Private Office with a salary of P4,188 per annum.
He is a third grade civil service eligible with 8 years of government service.
In January 1962, Exec. Sec. Mutuc informed Cristobal, through a letter, that
his services were terminated. Other employees in the Office of the President
(OP) were also sent termination letters.
The dismissed employees appealed to the President. But their appeal and
subsequent motions for reconsideration were denied by Mutuc.
In March 1962, five separated employees (Cristobal not included) filed a civil
action (Ingles suit) before the CFI-Manila against Mutuc and the cash
disbursing officer of the OP. They prayed for reinstatement and payment of
salaries. The CFI dismissed their complaint but on appeal, the SC declared
their removal illegal and ordered their reinstatement with backwages.
During the pendency of the case, Ingles et al. were recalled to their positions.
As for the other employees, Mutuc exerted efforts to look for placements
outside of Malacanang so that they may be re-employed. Cristobal was not
among those reappointed. However, Mutuc assured him of reinstatement.
Mutuc was replaced by other exec. secs. who likewise assured reemployed at
the opportune time.
After the SC rendered its decision (Ingles suit) in Nov. 1968, Cristobal again
requested reinstatement with backwages. This request and all subsequent letter
requests were denied. Cristobal received a final letter in 1971 denying
reinstatement and declaring the matter closed.
This prompted Cristobal to file a complaint with the CFI against Exec. Sec.
Melchor and Cash Disbursing Officer Arcala for reinstatement with
The OSG, in its answer, alleged that Cristobal abandoned his office for failure
to institute the proper proceedings to assert his right within one year from date
of separation (Sec. 16 Rule 66 ROC).



1. There was no acquiescence to or inaction on the part of Jose Cristobal amounting to

abandonment of his right to reinstatement in office.
Cristobal immediately and continuously sent letters for request and reconsideration of
his separation citing the fact that he was a civil eligible employee with eight years of
government service and consequently entitled to security of tenure.
Though Cristobal was not among the five who initially filed a civil case, his nonparticipation is not fatal to his cause of action because during the pendency of the Ingles
suit, Cristobal continued to press his request for reinstatement. Furthermore, Cristobal
relied upon the outcome of Ingles suit.
2. It was an act of the government through its responsible officials which contributed to
the alleged delay in the filing of Cristobal's present complaint for reinstatement.
Mutuc reassured them that he would work for their reinstatement. In fact, some were
already recalled to their previous positions, while others were placed outside
Malacanang. The succeeding secretaries likewise gave a similar assurance as to his
reinstatement at the opportune time.
This continued promise of government officials, as well as the SC decision on the Ingles
suit, led Cristobal to bide his time and wait for the OP to make good on its
commitment. It was only in May 1971 after receiving a letter denying his reinstatement
and declaring the matter definitely closed that Cristobal sought redress from the
The Court found that it would be the height of inequity and cutting a deep wound in
our sense of justice if, after Cristobal relied and reposed his faith and trust on the word
and promises of the executive secretaries, we are to hold that he lost his right to seek
relief because of lapse of time.
The doctrine of laches is an equitable principle applied to promote but never to defeat
justice. Thus, where laches is invoked against a plaintiff by reason of the latter's failure
to come to court within the statutory period provided in the law, the doctrine of laches
will not be taken against him where the defendant is shown to have promised from
time to time to grant the relief sought for.

CFI dismissed the complaint. It anchored its decision on Sec 16 Rule 66

ROC 1. It further held that the pendency of administrative remedies does not
suspend the period for filing quo warranto, as resort to admin remedies, while
desirable, is not mandatory nor a pre-requisite.
Hence this petition.

WON Cristobal has a right to seek judicial relief despite not filing his complaint within
the one-year period (i.e., WON laches or non-compliance with the Statute of
Limitation applies)?
YES. However, due to exceptional circumstances, the Court applied the principle of
equity and granted reinstatement with backwages.
Quo Warranto
Cristobals action for reinstatement with backwages is in essence a quo warranto
proceeding, therefore Sec 16 Rule 66 ROC applies.
In quo warranto actions involving a right to an office, the action must be instituted
within the period of one year from the time the cause of action arose else the petitioner
is considered to have abandoned his position. The rationale for this is to have stability
in the service and to inform the Government of persons claiming to be entitled to an
office as against another actually holding it, to prevent having to pay two salaries -- to
the rightful holder and actual holder of the position. (Unabia v City Mayor).
The doctrine of laches applies because Cristobal allowed almost nine years to pass
before coming to court to question his removal.
In Tijam vs. Sibonghanoy, the Court stated that in a general sense, laches is failure or
neglect, for an unreasonable and unexplained length of time, to do that which, by
exercising due diligence, could or should have been done earlier; it is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the
party entitled to assert it either has abandoned it or declined to assert it.
Exceptional Circumstances
However, despite jurisprudence upholding the one year period rule, the following
exceptional circumstances lead the Court to grant Cristobals relief:

3. The dismissal of Cristobal was contrary to law based on the strength of this Court's
Decision in Ingles vs. Mutuc.
The issue in the Ingles case was whether or not the plaintiffs- employees were
occupying positions primarily confidential in nature and therefore subject to removal at
the pleasure of the appointing power. The Court found that the dismissed employees
were not holding primarily confidential positions but mainly clerical work. The
compensation and the designation of their position indicate the purely clerical nature of

Section 16 of Rule 66 of the Rules of Court expressly provides that an action against a public
officer or employee may not be filed for the plaintiff's ouster from office unless the same is
commenced within one year after the cause of the ouster, or the right of the plaintiff to hold such
office or position arose. This period of one year is a condition precedent for the existence of the
cause of action for quo warranto.


their functions. Hence, considering that they are civil service eligible with several years
of government service, their removal was illegal 2.
Applying the decision in Ingles to Cristobals case, no evidence was adduced to show
that his position was primarily confidential.
As to the reliefs granted
1. Back wages
The Court considered the probability of Cristobal's having sought employment
elsewhere during that period (1962 to 1971) to support himself and his family.
Applying by analogy the rulings of the Court in the matter of fixing backwages to
employees who were victims of unfair labor practices of their employers so as to obviate
the necessity of a hearing on the point and avoid further delay, and considering the lapse
of almost nine years before appellant filed this suit, the Court resolved to grant back
salaries at the rate last received by Cristobal only for a period of five (5) years without
qualification and deduction.
2. Reinstatement
Court ordered Cristobals reinstatement either in the OP or other government office, to
a position for which he is qualified by reaason of his civil service eligibility, subject to
present requirements of age and physical fitness.

Because of this, petitioner, together with the barrio captain, were charged of the
violation of RA 3019, and both were convicted to suffer a sentence of one year and
disqualification to hold public office.
CA modified the decision by eliminating the subsidiary imprisonment in case of
insolvency in the payment of one-half of the amount being involved. Petitioner,
unable to hire a lawyer because of poverty, was not able to appeal to the SC.
Petitioner was granted an ABSOLUTE PARDON by the President restoring him
his 'full civil and political rights.'
Petitioner then applied for reinstatement to the government service, only to be
reinstated to the wrong position of a mere classroom teacher and not to his former
position as Elementary School Principal I.
The Division of City Schools, Gingoog City, did not act on petitioner's request.
Hence, the present petition.

Issue: Whether or not petitioner must be restored to the same position he was in
before he was convicted on a mere technical error and for which he was given an
absolute pardon.
Held: YES. The Secretary of the DECS and/or his duly authorized representative is
hereby directed to appoint petitioner to the position of Elementary School Principal I or
its equivalent.

SABELLO v DECS| December 26, 1989|GANCAYCO, J.:



Petitioner, the then Elementary School Principal of Talisay and also then Assistant
Principal of the Talisay Barangay High School of Gingoog City, committed an error
on technicalities of disbursing government funds in the following manner:

The barangay high school was in deficit at that time due to the fact that the
students could hardly pay for their tuition fees. The President gave aid in the
amount of P 2,000.00 for each barrio. The barrio council through proper
resolutions alloted the amount of P 840.00 to cover up for the salaries of the
high school teachers, with the honest thought in mind that the barrio high
school was a barrio project and as such therefore, was entitled to its share of
the RICD fund in question. Petitioner was authorized by the said barrio
council to withdraw the above amount and which was subsequently deposited
in the City Treasurer's Office in the name of the Talisay Barrio High School.

No officer or employee in the Civil Service shall be removed or suspended except for cause as
provided by law" (Section 4, Article XII, 1935 Constitution)

As a general rule, the question of whether or not petitioner should be

reappointed to his former position is a matter of discretion of the appointing
authority, but under the circumstances of this case, if the petitioner had
been unfairly deprived of' what is rightfully his, the discretion is qualified by
the requirements of giving justice to the petitioner. It is no longer a matter of
discretion on the part of the appointing power, but discretion tempered with
fairness and justice.
Although in Monsanto vs. Factoran, Jr., the Court held that although such pardon
restores ones eligibility to a public office it does not entitle him to automatic
reinstatement. He should apply for reappointment to said office. However, in the
present case, as there are no circumstances that would warrant the diminution in
his rank, justice and equity dictate that he be returned to his former position of
Elementary School Principal I and not to that of a mere classroom teacher.
However, the Court cannot grant his prayer for backwages. Such right is afforded
only to those who have been illegally dismissed and were thus ordered reinstated or
to those otherwise acquitted of the charge against them. In this case, he was
lawfully separated.
Also, his government service cannot be made continuous from September 10, 1948
to the present when it is not. At any rate when he reaches the compulsory age of


retirement, he shall get the appropriate retirement benefits as an Elementary School

Principal I and not as a mere classroom teacher.


Monsanto sought reconsideration insisting that the full pardon wiped out her crime and
so her service was never interrupted and therefore she should be reinstated on the date
of her preventive suspension (August 1, 1982). She also seeks backwages. And she does
not want to pay her share of the 4892.50.


The MoF referred her reconsideration to the Office of the President.

G.R. No. 78239 February 9, 1989


Deputy Executive Secretary Fulgencio Factoran Jr. held that acquittal, not absolute
pardon, is the only ground by which a public officer may be reinstated to his former
position and be entitled to backwages. And even then, such public official must secure a
reappointment before he can reassume his former position. And the pardon did not
extinguish civil liability so she must still pay her share of the 4892.50.

Position: Assistant Treasurer

Employer: Calbayog City, Samar
Summary: Assistant Treasurer Monsanto convicted of estafa through falsification of
public documents by the Sandiganbayan but while appeal was pending in Supreme
Court, Pres. Marcos pardoned her. She writes to City essentially claiming her still vacant
position as Asst. Treasurer. City referred to Ministry of Finance which said she may
reassume position but pay the balance of defrauded sum. She didn't want to pay so filed
motion for reconsideration which was referred to Deputy Executive Secretary Factoran
Jr who ruled doubly against her: that she must pay balance and she cannot be
automatically reappointed. HELD: that pardon is prospective, not retrospective. It
removes all penalties and disqualifications but does not operate as automatic
reappointment or waiver of civil liability. She must reapply for a new appointment to
reassume her previous position. Justices Padilla and Sarmiento concur in the result but
said that pardon does not restore right to hold public office (a disqualification) unless
expressly stated in the pardon because Art. 36 of RPC.

WON public officer granted pardon by President is entitled to reinstatement to former
position without need of a new appointment. (No. Pardon is prospective, not
retrospective and thus cannot operate as automatic reappointment. It removes all
penalties and disqualifications but does not remove the fact of conviction. Petitioner
Monsanto may reapply to her previous position.)
Monsanto (Petitioner): I was granted pardon while my conviction was still pending with
the Supreme Court this amounts to an acquittal because the President has determined
that I'm not guilty of the crime charged. There was no final judgment of conviction and
thus the accessory penalty of forfeiture of office did not attach. I was thus merely
suspended from office.


SC: Monsanto was convicted and her penalty (prision correccional minimum, prision
mayor maximum) carried the accessory penalties of temporary absolute disqualification
(TAD) and perpetual special disqualification from the right of suffrage, enforceable
during the term of the principal penalty.

On March 25, 1983, Salvation Monsanto, then assistant treasurer of Calbayog City,
along with three others, were convicted of the complex crime of estafa through
falsification of public documents and sentenced to 4y/2m/1d minimum and 10y/1d
maximum in prison as well as a fine of 3,500 and the balance of the defrauded sum in
the amount of 4,892.50. Monsanto appealed with the SC but conviction was affirmed.

TAD bars the convict from public office or employment, such disqualification to last
during the term of the sentence. Even if the offender be pardoned, as to the principal
penalty, the accessory penalties remain unless the same have been expressly remitted by
the pardon.

On December 17, 1984, President Marcos granted her absolute pardon which she
After the pardon, she immediately wrote the Calbayog City treasurer requesting that she
be restored to her former post as it was still vacant. Her letter was referred to the
Ministry of Finance (MoF) which said she may be reinstated without need of a new
appointment not later than the date she was extended the absolute pardon. MoF still
required her to pay her share of the 4892.50.

SC ON ORIGIN OF PARDON (after saying that Monsanto had inadequate

understanding of pardon):
Pardon originated from the British monarchy to temper the gravity of the King's wrath.
But Philippine concept of pardon largely influenced by American case law.


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


Bottom line for Monsanto: TAD is erased, you may apply for reappointment. But only
that. Your previous offense must be taken into account by the appointing authority
when he makes the new appointment.
On the civil indemnity: not deleted by pardon. It may only be extinguished for the same
causes recognized by the Civil Code, namely, payment, loss of the thing due, remission,

The 1981 amendment to the 1973 constitution allowed the President to grant pardon
even if the case was pending before the Supreme Court. With the 1987 constitution, the
provisions of the 1935 constitution was restored i.e. pardon can only be granted after
final conviction. Nonetheless, when the pardon was granted is immaterial. Monsanto
accepting the pardon means that she waived her appeal with the Supreme Court and the
Sandiganbayan conviction gained finality.

Decision of Deputy Executive Secretary Factoran Jr. affirmed.

Summary: concurs with result but says that pardon does not restore right to hold public
office unless expressly stated therein.



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

Through the cases of Pelobello v. Palatino and others, Philippine jurisprudence has
accepted the proposition of the Amercian case Ex Parte Garland that a full and absolute
pardon, if granted before final conviction, wipes out all penalties and disabilities. It
makes the accused a new man with new credit and capacity.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him
by the sentence. (Emphasis supplied)
While Monsanto was granted "an absolute and unconditional pardon and restored to
full civil and political rights", yet, nothing therein expressly provides that the right to
hold public office was thereby restored to the petitioner. In view of the express
exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a pardon
unless the right is expressly, explictly, and positively restored by the pardon. Public
office is a public trust. The loss of the right to hold public office by reason of
conviction in a criminal case, but subsequently pardoned, cannot be regained by

However, this view has not been universally accepted. The more realistic approach is to
limit the effects of pardon to its definition i.e. forgiveness or remission of guilt. It
doesn't erase the fact of commission of the crime as well as the conviction thereof.
Forgiveness, not forgetfulness.
Pardon relieves the party from penalties and disqualifications but it does not make him a
new man as innocent as if he had never committed the offense. He is still a convicted
criminal but punishment is waived by the state; he is still more dangerous to society than
one never found guilty of crime.


Unless pardon is grounded on the person's innocence (which is rare), it cannot bring
back lost reputation for honesty, integrity, and fair dealing.

Concurs with result, as well as J. Padilla's opinion.

Pardon is prospective, not retrospective. Monsanto is thus not entitled to receive

backwages. Monsanto may be appointed to her previous position but the pardon
doesn't enable her to reassume said office without need of a new appointment.
Rationale: public office is for the public interest. It cannot be compromised for private
interest, which happens if SC allows automatic reinstatement.

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by
the Revised Penal Code in its following provisions:
Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason of
commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil
interdiction during thirty years following the date of sentence, unless such accessory penalties have been
expressly remitted in the pardon.




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

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

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

I join in the basic point of Mr. Justice Padilla that because of the nature of a public
office as a public trust, Articles 36 and 40-43 appropriately require a very high degree of
explicitness if a pardon is to work the restoration of the right to hold public office to
petitioner (as well as the right to vote).

Cabagnot vs CSC
Romero, J:
In 1998, the new organizational structure and staffing pattern of the provincial government of Aklan was approved.

Petitioner, Governor Cabagnot, issued a Memorandum inviting all provincial officials and employees to apply for any of the authorized positions in the new staffing pattern.

In January 1989, the list of employees newly appointed and re-appointed was posted. Individual letters were sent to all employees directing them to accomplish and submit the
necessary documents to complete their appointment and to report to their assigned offices.

Twenty-one (21) supposedly aggrieved employees jointly appealed to Cabagnot. They prayed that they be appointed to the positions they applied for. They also sent Cabagnot
individual letters reiterating their qualifications and praying for reconsideration of their new appointments to positions lower in rank than their positions prior to the

This appeal was denied by Cabagnot, only seventeen (17) of them went to the CSC.

The CSC found that a wide disparity existed between the former positions held by private respondents and the positions proposed for them by Cabagnot even if equivalent
positions were available and held that:
The private respondents were actually demoted.
Cabagnot was found to have violated Section 4 of Rep. Act No. 6656 providing preference for appointment of permanent employees to the new positions or if there are
not enough comparable ones, to positions next lower in rank.


The CSC ordered that private respondents be immediately appointed and restored to their positions or positions of comparable or equivalent rank.

Issue: W/N there was grave abuse of discretion in the reinstatement of the private respondents. NO.



Petitioner: The power to appoint is essentially discretionary. The only condition for its proper exercise by the appointing authority is that the appointee should possess the qualifications
required by law. Once the discretion has been exercised, the CSC cannot replace the appointee with an employee of its choice whom it believes to be better qualified because the power
of the CSC is merely confined to approving or disapproving appointments. In other words, it is limited to the determination of whether the appointee possesses the required
qualifications for the post. Thereafter, its participation in the appointment process ceases. Substituting its judgment for that of the appointing authority constitutes encroachment on the
latter's discretion
Private Respondents: Their right to security of tenure was unjustly impaired.
Salary Grade Change?
Nature of work Change?
given positions which were not only lower, by two (2) to as much as fourteen (14) grades, but which were different in nature from
the ones they previously held

lower by 14 grades

Provincial Planning to Tax Mapping


lower by 6 grades

Project Analyst to Tax Mapping


lower by 6 grades

Executive Assistant to Construction and Maintenance


lower by 6 grades

Audit Analyst to Security Guard


lower by 4 grades

Project Assistant to Community Affairs Worker


lower by 3 grades

Public Information to Security Guard


lower by 2 grades

Senior Personnel Aide to Security Guard


lower by 2 grades

Senior Clerk to Security Guard

offered positions lower by one grade although they applied for positions which they have shown to be comparable to the ones they
previously held


lower by 1 grade

Clerical Aide to Utility Worker


lower by 1 grade

Training Officer to Information Writer


lower by 1 grade

Personnel Officer to Statistician


lower by 1 grade

Examiner to Clerk

given positions of the same salary grade but lower by one or two steps

same salary grade

clerk to janitor


same salary grade

clerk to security guard


same salary grade

division chief to subordinate in Treasury


same salary grade

clerk to bindery helper

Supreme Court:




We agree with the CSC when it found that a glaring disparity exists between the former positions held by private respondents and the positions proposed to them by petitioner.


Private respondents have been demoted by their assignment to positions which are lower than those they previously held, or which, though of equivalent salary grade and step,
drastically changes the nature of their work without a showing by petitioner of the existence of a valid cause for such demotion, which in effect is a removal.

Assigning an employee to a lower position in the same service which has a lower rate of compensation is a clear case of demotion tantamount to removal when no
cause is shown for it or when it is not a part of any disciplinary action.


In the previously decided case of Floreza, we ruled that there was demotion even if Floreza was allowed to receive the same salary as his previous higher position.
Similarly, we find that some private respondents, notwithstanding non-diminution of their salary, have been demoted.

RA 6656, Sec 1: declares as the policy of the State, the protection of the security of tenure of civil service officers and employees in the reorganization of the various agencies of the
RA 6656, Sec 2: requires prior determination of a valid cause after due notice and hearing before any officer or employee in the career service can be removed, or demoted, which in
effect is a removal.
In order to show that valid cause for which for demotion exists, petitioner submits an evaluation supposedly made by the Placement Committee showing that private respondents were
recommended to positions to which they are best fitted and where they would be performing more effectively as demanded by the interest of public service.
The letters sent by Cabagnot to private respondents simply informed them of their new assignments and required them to submit the pertinent documents. These were not accompanied
by a copy of the evaluation by any explanation for their demotion. It was only when private respondents protested their new assignments that Cabagnot explained that the new
appointments and transfers to offices other than their original positions were done to enhance their efficiency and effectivity.

Topical (just really short): Respondent Commission committed no grave abuse of discretion in ordering that they be "immediately appointed and restored to their positions. As
explained in Gayatao v. Civil Service Commission:
. . . The CSC, after finding that the demotion was patently illegal, is merely restoring private respondent to his former position, just as it must restore other employees similarly affected to
their positions before the reorganization.
It is within the power of public respondent to order the reinstatement of government employees who have been unlawfully dismissed. The CSC, as the central personnel agency, has the
obligation to implement and safeguard the constitutional provisions on security of tenure and due process


One of these appointees was Rosario Cerillo, who was appointed Board Secretary II,
through a letter from the CSC which emphasized appointments were good and
renewable only up to 1992. PAFCA relieved Cerillo because of loss of trust and
confidence but was designated as Coordinator for Extension Services.

J. Hermosisima, Jr.
G.R. No. 116183
October 6, 1995
Digest by Aaron Valdez

RA 7605 converted PAFCA into a state college known as the Philippine State College
of Aeronautics (PSCA), with the Board of Trustees as the governing body. On
December 7, 1992, Col. Julian Loleng, the OIC, informed private respondents they shall
be deemed separated upon the expiration of their appointments. Private respondents
filed a case for mandamus and reinstatement with the Pasay RTC against DECS
Secretary Armand Fabella (replaced by petitioner Ricardo Gloria) to fill up positions in
the Board of Trustees.

FACTS: Private respondents were employees of the Philippine Air Force College of
Aeronautics (PAFCA), where the Board of Trustees is vested with authority to appoint
officials and employees of the college. The Board of Trustees issued a resolution which
decreed that all faculty/administrative employees shall be subject to the required civil
service eligibilities in accordance with the civil service law. Such resolution caused the
Board of Trustees to issue temporary appointments to respondents because they failed
to meet qualification standards for their respective positions.


Petitioners answered that mandamus will not lie to compel reinstatement because
reappointment is discretionary on the appointing power and that respondents failed to
exhaust administrative remedies. Respondent Judge De Guzman ordered the
reinstatement of Rosario Cerillo.


of betrayals of personal trust or confidential matters of state." The choice of an

appointee from among those who possessed the required qualifications is a political and
administrative decision calling for considerations of wisdom, convenience, utility and
the interests of the service which can best be made by the Head of the office

Whether or not the reinstatement of Cerillo could have been the subject of
mandamus proceedings NO
Cerillo was dismissed because of loss of confidence. The dismissal was not contested
nor appealed from by Cerillo. Her dismissal as Board Secretary II could not have been
the subject of the petition for mandamus and reinstatement filed before De Guzman.
Cerillo's assignment as "Coordinator for Extension Services" was a mere designation.
Not being a permanent appointment, the designation to the position cannot be the
subject of a case for reinstatement.

Reinstatement is technically issuance of a new appointment which is essentially

discretionary, to 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. Such exercise of the discretionary power of appointment cannot be
controlled even by the Court as long as it is exercised properly by the appointing


Even granting Cerillo could be validly reinstated as "Coordinator for Extension

Services", her reinstatement would not be possible because the position is not provided
for in the PSCA plantilla. The PSCA could not have made any valid appointment for an
inexistent position. This could be the reason she was merely designated as Coordinator.
As a mere designee, she could not have acquired any right to the position even if the
position existed. A mere "designation" does not confer upon the designee security of
tenure in the position or office which he occupies in an acting capacity only.

1989, REGALADO, J.:

Case: special civil action for certiorari file by the petitioner union, a legitimate
labor organization with a chapter in NHC. NHC is a GOCC organized in
accordance with EO 399, otherwise known as the Uniform Charter of
Government Corporations. Its shares of stock are fully government owned
nad it was incorporated under Act 459, the former corporation law.

Whether or not reinstatement was proper in respect to Cerillos former position

as Board Secretary II NO
Ms. Cerillo had been dismissed from this position for loss of confidence. She did not
contest the dismissal possibly because the position of Board Secretary II is primarily
confidential and the Board of Trustee found her to be wanting in faithfulness and
integrity dismissed her for that reason alone. She accepted the dismissal and when
designated as Coordinator for Extension Services, she indicated acceptance by
performing acts called for by the designation.

On July 13, 1977, TUPAS filed a petition for the conduct of a certification
election which was dismissed by med-arbiter Eusebio M. Jimenez on the
ground 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

The fact that Cerillo passed the requisite Civil Service Examination after the termination
of her temporary appointment is no reason to compel her reappointment. Acquisition
of civil service eligibility is not the sole factor for reappointment; other considerations
are: performance, degree of education, work experience, training, seniority, and, more
importantly, whether or not the applicant enjoys the confidence and trust of the
appointing power. The position of Board Secretary II, by its nature, is primarily
confidential, requiring "not only confidence in the aptitude of the appointee for the
duties of the office but primarily close intimacy which ensures freedom from misgivings

TUPAS appealed this at the BLR, which ruled in the union's favor. This
however was overturned again by Officer-in-Charge Virgilio Sy upon NHC's
MR. The union seeks the reversal of Sy's decision.
Issue: WON the a GOCC can file a petition for the conduct of a certification election?



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. xxx 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 selfdevelopment is (sic) promoted and encouraged. They also act as
watchdogs of their own bosses xxx.

History lesson first from the court:

The court began by noting that historically, GOCCs are governed by Civil
Service Law. SC cited NHC v Juco, (an illegal dismissal case) wherein the
SC held that employees of NHC and other GOCCs are governed by Civil
Service Laws pursuant to the 1973 Constitution which states that "the
civil service embraces every branch, agency, subdivision and
instrumentality of the government, including government-owned or
controlled corporations."


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 government-owned 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: 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


Under subsequent statutory developments, it is even more clear that public

officers whether in GOCCs with charter or without have the right to conduct
certification elections.

Ratio for including GOCCs under the CSC: So that government

departments would not create GOCCs just to circumvent CSC, COA, and
other rules which impose salary standardization, merit-based entrance,
auditing standards, etc.
This was modified, however, in the 1987 Constitution which limited Civil
Service coverage to GOCCs with original charters.


As to the issue: the workers or employees of NHC undoubtedly have the right
to form unions or employees' organizations. Legal basis:
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

Private employees and GOCCs without original charter: governed by

Articles 255 to 259 of the Labor Code, all of which deals with exclusive
bargaining representatives.

Section 3, Article XIII, on Social Justice and Human Rights, which

mandates that the State "shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law

Civil servants including GOCCs with original charter: 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 organization 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."

(Specific to Government Employees) Paragraph (5), Section 2, Article IX

B which provides that "(t)he right to self-organization shall not be denied
to government employees."

Rationale (important!) for extending the right to self-organize to civil

servants: accumulated grievances of several decades are now


Sy's Resolution set aside.



J. Cortes / July 28, 1989
Digest by Aaron Valdez


POSITION: various employees of the SSS under one union (SSS Employees
EMPLOYER: The Social Security System (SSS)
FACTS: The SSS filed a complaint for damages and the issuance of a writ of
preliminary injunction with the QC RTC against the SSSEA because the SSSEA
prevented ingress and egress to the company premises and continued to strike
despite an order from the Public Sector Labor Management Council to stop the
strike. The SSSEA went on strike because the SSS failed to heed the unions
demands, among them the check-off of union dues; the payment of accrued overtime
pay, holiday pay, and night differential pay; regularization; and childrens allowance. The
RTC issued a TRO pending decision on the injunction.



The SSSEA filed a motion to dismiss on the ground of lack of jurisdiction, but the
RTC denied the MTD and converted the TRO to an injunction upon finding the strike
was illegal. The SSSEA filed a petition for certiorari with the RTC, which referred it to
the CA.


The SSSEA maintains the DOLE or the NLRC had jurisdiction over the case since it is
a labor dispute. The SSS asseverates the SSSEA is comprised of government employees
and is governed by civil service law and regulations, and since neither the DOLE nor
the NLRC has jurisdiction, recourse was properly sought in the RTC.
The CA held that since the SSS employees are government employees, they are not
allowed to strike and may be enjoined by the RTC, which had jurisdiction over the SSS
complaint for damages stemming from the continuance of the strike.
Whether or not employees of the SSS have the right to strike NO, the employees
of the SSS do not have the right to strike because the Constitution is silent as to
government employees right to strike, because the intent of the framers of the
Constitution was that the right to organize does not carry with it the right to strike, and
because SSS employees are covered by the rules and regulations of the CSC, which then
had issued a memorandum [Memorandum Circular No. 6] prohibiting strikes.

There are three constitutional provisions at play 3. While the Constitution

recognizes the right of government employees to organize, it is silent as to
their right to strike.
The Court looked at the intent of the framers. Commissioner Eulogio R. Lerum,
one of the sponsors of Section 2(5) of Art. IX(B) said the State, pursuant to
Section 8 of Art. III (check footnote) could still have the strike declared
illegal pursuant to a law prohibiting government employees from going on
strike, which then was RA 875 (the Industrial Peace Act, which was later repealed
by the Labor Code). There is a fear of a collapse in our defense if members of the
Armed Forces were to go on strike.
Though the Labor Code and the Civil Service Decree are silent on the
government employees right to strike, EO 180, issued on June 1, 1987,
provided that Civil Service laws and regulations governing strikes shall be
observed. The President was referring to Civil Service Memorandum No. 6 s. 1987
which prohibited strikes prior to any enactment of Congress of appurtenant laws
Considering SSS employees are covered by the civil service by virtue of Art. IX(B)
and because Memorandum No. 6 s. 1987 was in force, SSS employees are
prohibited from staging a strike. The strike held by the SSSEA is rightly classified
an illegal strike.
The Court cited Alliance of Government Workers v. Minister of Labor and Employment and
the position paper to the Constitutional Convention of the Acting Commissioner
of the Civil Service for the distinction between workers in the private sector and
government employees.
a) Alliance of Government Workers: Since terms of employment of
government are fixed by law, government employees 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





3 Art. XIII, Sec. 3 of the 1987 Constitution 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;
Sec. 8 of the Bill of Rights likewise provides that the right of the people, including
those employed in the public or private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged;
Sec. 2(1) and Sec. 5 of Article IX(B) provide for the scope of the civil service (the
civil service embraces all branches, subdivisions, instrumentalities, and agencies of
the government, including GOCCs with original charters) and the right to selforganization of government employees.



terms and conditions of employment in the unionized private sector are

settled through the process of collective bargaining. In government
employment, this is effected through statutes or administrative circulars,
rules, and regulations, not through CBAs.
b) Acting CSC Commissioner: 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. The Government, in contrast
to the private employer, protects the interest of all people in the public
service, and such conflicting interests present in private labor relations
could not exist in the relations between government and those whom they
EO 180 provides that the recourse of government employees is to go to the
Public Sector Labor Management Council for labor disputes. Government
employees may go to Congress for the betterment of 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.


comply, so they were charged with several charges 4. Thus they were placed under
preventive suspension.
Secretary of DECS
- Petitioners failed to submit their answer, thus the Secretary rendered a decision finding
them guilty as charged and dismissing them from the service.
- On MR, Sec modified penalty to suspension for nine months.
- appeal was denied
- CSC reduced some of the penalties, to only six months suspension. Petitioner Mariano
he was only given a reprimand for failure to file an application for leave.
- appeal was denied

Whether or not the RTC has jurisdiction to issue an injunction against the
SSSEA Yes, the RTC has jurisdiction to issue an injunction against the SSSEA
because the strike held was prohibited by law and because the NLRC has no jurisdiction
over the case.

W/N the mass action was a strike. YES
W/N Memo Circular No.6 (prohibiting the strike) of the CSC is unconstitutional . NO
W/N their preventive suspension is illegal. NO
W/N they are entitled to backwages. NO


CA affirmed, with modification that Mariano be given back wages up to 5 years.


The Labor Code itself provides that terms and conditions of employment of
government employees are covered by civil service laws and regulations.
EO 180 vests jurisdiction on the Public Sector Labor Management Council over
unresolved labor disputes involving government employees. NLRC has no
jurisdiction over the case.

1. Petitioner's argument was that they were not on strike but merely exercising their
constitutional right to peaceably assemble and petition the government for redress of

Bangalisan v. CA

The Court had already decided that the mass action launched by the teachers was a
strike in a prior case, Manila Public School Teachers Assoc. v. Laguio. There was a work
stoppage and petitioners' purpose was to realize their demands by withholding their
services. The fact that it was not called a strike is inconsequential.

GR No. 124678 / 31 Jul 1997 / J. Regalado

Petitioners except a certain Rodolfo Mariano were among 800 public school teachers
who staged mass actions from Sep 17 to 19, 1990, to air their grievances concerning the
alleged failure of public authorities to implement certain laws and measures intended for
their material benefit.

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 (Civil Service Decree of the PH)

The DECS Secretary issued a return-to-work order on Sep 17, but petitioners failed to



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.


Jesus Borromeo vs. CSC and Secretary of DBM (1991)

(1) Jesus Borromeo is a recently retired CSC Chairman. Upon retirement, his
terminal leave pay was calculated off his highest monthly salary only.
(2) He wrote the COA for an opinion re the calculation because other ConCom
members were given terminal leave pay based on salary + COLA + RATA
(3) COA Decision No. 992: in line with the action taken by this Commission in
the previous similar cases of former COA Commissioners Hermogenes P.
Pobre and Silvestre D. Sarmiento," the COA "will interpose no objection" to
the petitioner's claim.
(4) BUT: DBM denied release of the adjust calculation (amounting to
P111,229.04), stating that:
a. Computation of the money value of vacation and sick leave is based
on "basic pay" or "basic salary" pursuant to the provisions of the
RAC, as amended by R.A. No. 1081.
b. Under Section 2(1) of P.D. No. 1146, the term salary refers to the
basic pay or salary received by an employee, excluding per diems,
bonuses, overtime pay and allowance.
c. Cases of former COA Commissioners Pobre and Sarmiento cannot
be validly invoked as precedents for purposes of DBM Budgetary
action since said claims were processed without prior involvement of
the DBM.
(5) CSC yielded to DBM instead of asserting its initial determination, and issued
Resolution No. 90-514 dated May 30, 1990 wherein the Commission deemed it
proper not to rule on the issue on "ethical considerations" and "compulsions
of delicadeza" and advised the petitioner to file an action for declaratory relief
on the issue with the Supreme Court.

It is not the exercise of their constitutional right to peaceably assemble that was
punished, but the manner in which they exercised it, resulting in temporary disruption
of classes in various public schools in Metro Manila.
2. Petitioners assail the constitutionality of Memorandum Circular No. 6 of the CSC
[note the case doesn't say what this is! I assume this is a prohibition to strike for public
The SC said that even in the absence of a statutory prohibition like MC No. 6, public
employees are denied the right to strike or engage in work stoppage against a public
employer. This is recognized at common law (citing an american article). Modern rules
prohibiting such strikes simply incorporate or reassert the common law rule.
Therefore to grant public employees the right to strike there must be a clear and direct
legislative authority.
3. EO 292 provides that the 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 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.
Thus on the basis of the charges against them the Secretary had the power to place
petitioners under preventive suspension.
The immediate execution of the Sec's decision is authorized by Sec. 47 par. 2 of EO

ISSUES: Procedural: WON the COA decision had become final and executory
such that the DBM and CSC had a ministerial duty to simply enforce it. Syllabus:
WON the terminal leave pay of a ConCom member should be calculated based on (1)
highest monthly salary + COLA + RATA, OR (2) highest monthly salary ONLY.

4. With the issue of preventive suspension settled, there is now therefore no right to
claim backwages. Backwages may be awarded if the employee is found innocent of the
charges which caused the suspension. As there was a finding of guilt, the suspensions
are proper and they cannot recover backwages.

SUPREME COURT: COA decision not final or executory. Calculate terminal leave
based on salary + COLA + RATA
RE procedural issue

However for petitioner Mariano, there was a finding that he did not participate in the
mass actions but was merely on AWOL to attend his grandmother's wake. His penalty
was reduced to a reprimand. Thus he must be awarded backwages as he was exonerated
of the charges that caused his dismissal (or suspension) from the service.

Neither CSC nor DBM are aggrieved parties. CSC is NOT an aggrieved party because it
recommended the approval of the petitioner's request for payment of terminal leave.
DBM is NOT an aggrieved party because it was not privy to the case before the COA.



Moreover, the DMB can simply ignore the COA ruling if it disagrees with it, in which
case the onus is on petitioner to pursue legal remedies. The records do not show any
authority of COA to compel acceptance of its ruling in this particular case.


highest rate received, which they may have to their credit at the time of
SC: [basically the law was ambiguous so they ruled on basis of equity in favor of
government officers]

NOTE however on the CO-EQUAL nature of the ConCom bodies CSC does
NOT have exclusive jurisdiction to determine calculation of leave benefits. While the
implementation and enforcement of leave benefits are matters within the functions of
the CSC as the central personnel agency of the government, the duty to examine
accounts and expenditures relating to leave benefits properly pertains to the COA.
Where government expenditures or use of funds is involved, the CSC cannot claim an
exclusive domain simply because leave matters are also involved COA, the CSC, and the
Commission on Elections are equally pre-eminent in their respective spheres. Neither
one may claim dominance over the others. In case of conflicting rulings, it is the
Judiciary which interprets the meaning of the law and ascertains which view shall

In the end, the SC decided NOT to apply RAC 286 or Commonwealth Act No 186
as suggested by the Solgen. Instead, they extended A.O 44 with respect to RA
910 so that the rule on 5 year gratuities would also cover terminal leave benefits.
In the light of the reasons which impelled the law to include COLA and RATA in
computing retirement benefits of certain officials, we rule that terminal leave payments
must also be governed by the same principle. COLA and RATA should be included in
computing the terminal leave credits when the officials retire or the official relationship
is lawfully terminated. It is axiomatic that retirement laws are liberally construed and
administered in favor of the persons intended to be benefited. All doubts as to the
intent of the law should be resolved in favor of the retiree to achieve its humanitarian

RE proper calculation:
PETITIONER CLAIMS: Memorandum Order issued by President Marcos on
November 20, 1980 provided for the computation of accumulated leave benefits of
retired Chairman and Commissioners of the COA on the basis of the highest monthly
salary including allowance received at the time of the retirement.

Although terminal leave pay is not synonymous with, and is not a part of, the five-year
lump sum gratuity provided under RA 910 as amended and Administrative Order No.
444, the former may, in a broad sense, partake of the nature of a gratuity rather than
actual salary. A gratuity is that paid to the beneficiary for past services rendered purely
out of generosity of the giver or grantor. It is a mere bounty given by the government
in consideration or in recognition of meritorious services and springs from the
appreciation and graciousness of the government. While it is true that vacation and sick
leave credits are earned during one's period of employment, they are, by their very
nature and purpose, supposed to be enjoyed or exhausted during employment. When
these accumulated leave benefits are allowed to be accumulated, not to be paid while
one is working but to be reserved for old age, then this constitutes the gratuity.

SC RESPONSE: This order is specific to cases of the officers involved. Even with
contemporaneous interpretation, it cannot be elevated to the status of general law.
PETITIONER CLAIMS: Administrative Order No. 44 dated December 13, 1979,
extending to the Chairman and members of the Constitutional Commissions the same
benefits enjoyed by retiring members of the Judiciary in the matter of rationalized rate
of allowances and liberalized computation of retirement benefits and accumulated leave

SC Opinion re RAC 286: Only provision in RAC Section 286 which can support
Solgens argument is the clause which allows the "commutation of salary" of a
government officer, employee or laborer.


"Commutation of salary" as used in Section 286 is, however, not the same as
"commutation of leave credits." The former is applied for by an employee during
employment when he goes on ordinary leave. In contrast, commutation of leave
credits, more commonly known as terminal leave, is applied for by an officer or
employee who retires, resigns or is separated from the service through no fault of
his own. In the exercise of sound personnel policy, the Government encourages unused
leaves to be accumulated. The Government recognizes that for most public servants,

(1) A.O. 44 and related laws only refer to 5 YEAR GRATUITY. WHILE:
Section 286 of the Revised Administrative Code, as amended by RA No.
1081 provides that terminal leave benefits should be calculated based on salary
(2) Commonwealth Act No. 186 as cited in SC case Paredes v. Chairman states:
Officials and employees retired under this Act shall be entitled to the
commutation of the unused vacation and sick leave, based on the



retirement pay is always less than generous if not meager and scrimpy. A modest nest
egg which the senior citizen may look forward to is thus provided. Terminal leave
payments are given not only at the same time but also for the same policy
considerations governing retirement benefits.


years gratuity computed on the basis of the highest monthly salary plus
the highest monthly aggregate of transportation, living and
representation allowances he was receiving on the date of his retirement
(3) RAC Section 286. When vacation leave and sick leave may be taken. Vacation
leave and sick leave shall be cumulative and any part thereof which may not be
taken within the calendar year in which earned may be carried over to the
succeeding years, but whenever any officer, employee, or laborer of the
Government of the Philippines shall voluntarily resign or be separated
from the service through no fault of his own, he shall be entitled to the
commutation of all accumulated vacation and/or sick leaves to his
credit: Provided, That the total vacation leave and sick leave that can
accumulate to the credit of any officer of employee shall, in no case, exceed
ten months: Provided, further, That the proper Department Head may in his
discretion authorize the commutation of the salary that would be received during
the period of vacation and sick leave of any appointed officer or employee or
teacher or laborer of the Philippine Government and direct its payment on or
before the beginning of such leave from the fund out of which the salary
would have been paid: Provided, furthermore, That no person whose leave has
been commuted following his separation from the service shall be reappointed
or reemployed under the Government of the Philippines before the expiration
of the leave commuted unless he first refunds the money value of the
unexpired portion of the leave commuted. (Emphasis supplied)

Terminal leave pay, which is the cash value of his accumulated leave credits, should not
be treated as compensation for services rendered at that time. It can not be viewed as
salary for purposes which would reduce it. There can thus be no "commutation
of salary" when a government retiree applies for terminal leave because he is not
receiving it as salary. Hence, Section 286 of the Revised Administrative Code is not
applicable. It cannot be construed as limiting the basis of the computation of terminal
leave pay to monthly salary only.

SC Opinion Commonwealth Act as cited in Paredes v. Chairman: A reading of

Section 12(c) of CA 186 therefore reveals an intent on the part of the legislature to
provide a uniform basis in computing both the retirement gratuity and the terminal
leave pay. In CA 186, that uniform basis is salary. A different law, R.A. 910 as
amended, governs the petitioner. In the case of members of the Judiciary and
Constitutional Commissions, the basis in computing the retirement gratuity is
the highest monthly salary plus the highest monthly aggregate of transportation,
living and representation allowance (COLA and RATA) . The same rule of
uniformity which we applied in Paredes v. Acting Chairman for those retiring
under CA 186 as amended should also apply for those who retire under R.A. 910
as amended. The rate used in computing retirement gratuities also applies in the
computation of terminal leave credits.

G.R. No. 104158 November 6, 1992




(1) AO No. 44
a. 3. The accumulated leave credit of a Chairman/Commissioner of a
Constitutional Commission shall be computed under the same
rules as those applicable to members of the Judiciary.
b. Upon retirement, the lump sum of five years gratuity as provided
under R.A. 3595 for the Chairman/Commissioner shall be computed
on the basis of the highest monthly salary plus the duly authorized
transportation, living and representation allowances in the last month
prior to retirement or expiration of term.
(2) Judiciary is Republic Act (R.A.) No. 910, Sec. 3. Upon retirement, a justice
of the Supreme Court or of the Court of Appeals, or a judge of the Court of
First Instance, Circuit Criminal Court, Agrarian Relations, Tax Appeals,
Juvenile and Domestic Relations, city or municipal court, or any other court
hereafter established shall be automatically entitled to a lump sum of five



Manapat retired as Chief of the Legal Division of the office of the Municipal
Board of Manila after 20 years.
He retired under the provisions of R.A. No. 1616, as amended and received
On April 1977, Manapat was reemployed by the City of Manila this time as
Secretary of the City of Manila Board of Tax Assessment Appeals until he
reached the age of 65 year
During this time, the Salary Standardization Law (R.A. No. 6758) took effect
and increased Manapat's monthly salary from P3.9 k to 11k.
When he retired his pay was based on his 3.9k pay , less the retirement pay he
has previously received. However, In 1990, GSIS adjusted Manapat's
retirement to 11k per months, resulting to a total receivable of 486K





The committee chairman of the settlement of claims for retirement

disapproved the claim stating that it was existing policy of the City of Manila
that an employee who has reached the compulsory retirement age of sixty-five
(65) years must retire under R.A. No. 660 and not under the provisions of R.A.
No. 1616, as amended.
Then Mayor of the City of Manila, petitioner Gemiliano Lopez, Jr., stated that
he had discretionary authority to allow or disallow a claim to retire under RA
1616 as amended, considering that retirement under that law was optional and
payment of retirement benefits thereunder was subject to the availability.
A week later, Manapat received a letter from the Mayor that his retirement
claim under R.A. No. 1616 could not be favorably acted upon due to financial
constraints upon the City Government.


TC also dismissed the petition for mandamus of Manapat

10. CA reversed the decision


prescribe: . . . In all cases no one shall be entitled to retirement benefit if his age is below
fifty-two years or his total service is less than fifteen years.
(b) 12(b) 30 years of government service "regardless of age;"
the retiring employee to receive a monthly annuity for life, but the benefits for service
rendered after June sixteen, 1951 , shall be whatever amount of annuity can be
purchased by the accumulated government and personal contributions to the credit of a
member plus interest allowed by the system on the date of retirement. Said annuity shall
be computed in accordance with the mortality table and the rate of interest adopted by
the system.

(c) 12(c) 20 years of government service "regardless of age;"

The benefit shall, in addition to the return of his personal contributions with interest
compounded monthly and the payment of the corresponding employer's premiums
described in subsection (a) of Section five hereof, without interest, be only a gratuity
equivalent to one month's salary for every year of the first twenty years of service, plus
one and one-half month's salary of every years of service over twenty but below thirty
years and two month's salary for every year of service over thirty years in case of
employees based on the highest rate received and in case of elected officials on the rates
of pay as provided by law. This gratuity us payable by the employer or officer concerned which is
hereby authorized to provide the necessary appropriation or pay the same from any unexpended items of
appropriations or savings in its appropriations.

ISSUE: WON a government employee, who has reached the compulsory retirement age
of 65 years, may opt to retire under R.A. No. 1616 as amended or only under the
mandatory retirement clause of R.A. No. 660; -An employee who shall have satisfied the requirements for retirement under more than
1 subsection of Section 12 is entitled to choose the subsection (under which he shall
The retirement option belongs to Manapat and not to his employer, the City of Manila.
That option cannot be taken away from the retiree by the employer even though such
retiree simultaneously satisfies the requisites of retirement under some other subsection
or subsections of Section 12.

(e) 12(e) 15 years of government service and attainment of age 65 years; automatic
and compulsory lump sum payment of present value of annuity for the first five years
and future annuity to be paid monthly, and future annuity to be paid monthly, and
future annuity to be paid monthly, and other benefits given to a compulsory retired
member as provided for in RA 616 as amended, if he has completed fifteen years of
service and if he has not been separated from the service during the last three years of
service prior to retirement; otherwise he shall be allowed to continue in the service until
he shall have completed the required length of service, unless he is otherwise eligible for
disability retirement.

To sustain the petitioners' alleged "policy" would in effect constitute an amendment of

the terms of the applicable statute something which neither this Court nor petitioners
are authorized to do.
SECTION 12. Conditions for retirement. . . .
(a) 12(a) 30 years of government service and attainment of age 57 years;

Manapat having had 35 years of service during his second retirement on 27 December
1989, rendered a total of 35 years of government service.

the last three years of service before retirement must be continuous and he must have made contributions
for at least five years, which contributions may, upon his request approved by the Board,
be deducted from his life annuity under such terms and conditions as the Board may

He has thus complied with the requirement for retirement under each and every one of
the four modes of retirement provided in Section 12 of C.A. No. 186 as amended,
quoted above, to wit:



The basic policy purpose of C.A. No. 186 as amended by R.A. No. 1616 is, to create an
added incentive for qualified government employees to remain in the service of the


Commission. While the case was pending, the position of Chief of Clinics were turned
over to and were allowed to be exercised by Dr. Jose D. Merencilla.
Dr. de la Fuente's case was decided and declared that the demotion/transfer of
appellant de la Fuente, Jr. from Chief of Clinics to Medical Specialists II as null and
void, the resolution became final. De la Fuente thereupon sent two (2) letters to Dr.
Vital-Gozon, the Medical Center Chief of National Children's Hospital, demanding the
implementation of the Commission's decision but she did not answer Dr. de la Fuente's
letters or to take steps to comply or otherwise advise compliance, with the final and
executory Resolution of the Civil Service Commission.

Thus, we read Section 12(c) as applicable in respect of private respondent Manapat who
had complied with the requirement of that subsection of at least 20 years of service. The
benefits of Section 12(c) are, under its express terms, available to anyone who shall have
rendered at least twenty (20) years of service, regardless of age reached by the retiree at
the time of his retirement.
Section 12(e) of C.A.. No. 186 as amended "cannot and should not be construed as
limiting the mode of retirement of a government employee who was has reached the age
of 65 years:"

She instituted in the Court of Appeals an action of "mandamus and damages with
preliminary injunction" to compel Vital-Gozon, and the Administrative Officer, Budget
Officer and Cashier of the NCH to comply with the final and executory resolution but
Vital-Gozon did not respond to the order of the court. Thus CA declared, that the said
resolution declared dela Fuente as the lawful and de jure Chief of Respondents,
particularly Dr. Isabelita Vital-Gozon, had no discretion or choice on the matter; the
resolution had to be complied with. A writ of execution was issued thereafter. On his
motion for reconsideration, Vital-Gozon argued that the Appellate Court had no
jurisdiction over the question of damages in a mandamus action and referred this to the
Office of Solicitor General. Court of Appeals denied the motion and ruled that the Sol.
Gen has no authority to appear as counsel for respondent Gozon.

We should also note that the phrase "regardless of age" found in Section 12(c) becomes
particularly meaningful when it is recalled that Section 12(e), which declares that
"retirement shall be automatic and compulsory at age 65," nonetheless gives an
employee who has already reached 65 years of age the option to remain in the
government service in order to complete the 15-year minimum service requirement.
ISSUE 2: WON petitioners may be compelled by mandamus to pay the retirement
benefit due to private respondent Manapat notwithstanding the lack of funds for that
purpose asserted by petitioners. YES

ISSUE: Whether or not the Court of Appeals has jurisdiction, in a special civil action of
mandamus against a public officer, to take cognizance of the matter of damages sought
to be recovered from the defendant officer.

It is ministerial on the part of petitioner City of Manila as employer of Manapat to

provide the funds necessary to pay the latter's lawfully accrued retirement gratuity.

HELD: The Solicitor General's Office evidently searched said Section 9 for an explicit
and specific statement regarding "actions for moral and exemplary damages," and
finding none, concluded that the Court of Appeals had not been granted competence to
assume cognizance of claims for such damages. The conclusion is incorrect. Section 19,
governing the exclusive original jurisdiction of Regional Trial Courts in civil cases,
contains no reference whatever to claims "for moral and exemplary damages," and
indeed does not use the word "damages" at all; yet it is indisputable that said courts have
power to try and decide claims for moral, exemplary and other classes of damages
accompanying any of the types or kinds of cases falling within their specified
jurisdiction. The Solicitor General's theory that the rule in question is a mere procedural
one allowing joinder of an action of mandamus and another for damages, is untenable,
for it implies that a claim for damages arising from the omission or failure to do an act
subject of a mandamus suit may be litigated separately from the latter, the matter of
damages not being inextricably linked to the cause of action for mandamus, which is
certainly not the case.

Section 12(c), C.A. No. 186 as amended, in fact effectively dispenses with the need for
enacting an ordinance specifically appropriating private respondent Manapat's
retirement pay, or inserting an appropriate item to that effect in a General
Appropriation Ordinance of the City of Manila.

FACTS: Executive Order No. 119 issued on January 30, 1987 ordered the
reorganization of the various offices of the Ministry of Health where Dr. Alejandro S.
de la Fuente was demoted to Medical Specialist II from being the Chief of the Clinics of
the National Children's Hospital. De la Fuente filed a protest with the DOH
Reorganization Board but was ignored and she brought this to Civil Service



It being quite evident that Dr. Vital-Gozon is not here charged with a crime, or civilly
prosecuted for damages arising from a crime, there is no legal obstacle to her being
represented by the Office of the Solicitor General.


Office of the Solicitor General 5. Only the Provincial Prosecutor 6 of Camarines Norte
may represent the Provincial Governor and the Provincial Board.
Petitioners also pray to nullify the Notice of Appeal filed by respondents since it was
filed by a lawyer not authorized to do so. Even granting that Atty. Lapak could
represent respondents in filing the Notice of Appeal, they add, it was not properly
served since its copy was sent to petitioners and not to their counsel of record. They
conclude that this error is fatal to their appeal.

The petition was DENIED and the resolution was affimed.

Mancenido v. CA digest by LA Love Celebrado

The Law on Public Officers\D. Powers, Duties, and Responsibilities of Public
Officers\2. Rights and Privileges\g. Other rights

Hence, the defects in the Notice of Appeal did not toll the running of the period for the
finality of judgment and petitioners could still file a motion for partial execution of the


NORTE, respondents .

(1) WON a private counsel may represent municipal officials sued in their official

G.R. No. 118605 | April 12, 2000 | 2nd Div. | Quisumbing, J.

(2) WON a Notice of Appeal filed through private counsel (of the respondents) and
with notice to petitioners only (not including their counsel) is valid?



Eduardo Mancenido filed an action for mandamus and damages with the RTC of Daet,
Camarines Norte against the provincial board of Camarines Norte, the school board,
provincial governor, provincial treasurer, and provincial auditor to pay the teacher's
claim for unpaid salary increases.

(1) YES. Sec. 481 LGC 7 provides for the appointment of a legal officer. Only when the
provincial fiscal is disqualified may the municipal council be authorized to hire the
services of a special attorney. These instances, when the provincial public prosecutor is
disqualified from representing a particular municipality, are when the jurisdiction of a
case involving the municipality lies with the Supreme Court, when the municipality is a
party adverse to the provincial government or to some other municipality in the same
province, and when in a case involving the municipality, the provincial prosecutor, his
spouse, or his child is involved as a creditor, heir, legatee, or otherwise.

RTC rendered a decision ordering the Provincial School Board to appropriate and
satisfy his claim in the amount of P268,800.00, as unpaid salary increases.
Respondents filed a Notice of Appeal, which the judge gave due course. Petitioners filed
(1) an opposition to the respondents Notice of Appeal and (2) a motion for partial
execution of judgment.

For local government official, we laid down the rule that, in resolving whether he may
secure the services of private counsel in an action filed against him in his official
capacity, the nature of the action and the relief sought are to be considered.

The judge issued an order approving the appeal of private respondents but granted the
partial execution of judgment.

In this case, petitioners appealed to the Court of Appeals since the trial court did not
award damages. In view of the damages sought which, if granted, could result in personal
liability, respondents could not be deemed to have been improperly represented by

Then, respondents filed a petition for mandamus, prohibition, and injunction with the
CA. The CA granted the petition for prohibition and mandamus and ordered the judge:
(1) to elevate the original records in due course of appeal; and (2) to desist from the
partial execution of the decision in the case.

Section 35, Chapter 12, Title 3, Book 4 of the Administrative Code of 1987
Section 481 [1], par. B of the Local Government Code of 1991
7 "(I) Represent the local government unit in all civil actions and special proceedings wherein the
local government unit or any official thereof, in his official capacity, is a party: Provided, That, in
actions or proceedings where a component city or municipality is a party adverse to the
provincial government or to another component city or municipality, a special legal officer may
be employed to represent the adverse party;"

In the SC, the petitioners contend that Atty. Jose Lapak could not represent the
respondents Provincial Treasurer and Provincial School Board, because both are
instrumentalities of the National Government and may be represented only by the




Antonio P. Santos, petitioner

vs. The Honorable Court of Appeals, Metropolitan Authority (now known as
Metropolitan Manila Development Authority), and The Civil Service
Commission, respondents .
G.R. No. 139792 |November 22, 2000 | En Banc | Davide, Jr., J.
18 January 1983 Santos was appointed Judge of the QC MeTC. After the EDSA
revolt, he was reappointed to the same position.
1 April 1992 he optionally retired from the Judiciary and received his retirement
gratuity with a monthly pension (after 5 years) under RA 910.
2 December 1993 he was appointed Director III of the Traffic Operation Center of
the MMA and approved as well by CSC.
1 March 1995 R.A. No. 7924 9 is enacted which reorganized the MMA and renamed
it as MMDA.
16 May 1996 After President approved the implementing rules of R.A. No. 7924,
MMDA issued Resolution which authorized the payment of separation benefits to the
officials and employees of the former MMA who would be separated as a result thereof.
30 August 1996 MMDA issued a Memo to Santos informing him that due to his
voluntary option to be separated, he would be entitled to separation benefits equivalent
to one and one-fourth months salary for every year of service.
Santos asserted that since the retirement gratuity he received under R.A. No. 910 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.
7 October 1996 Dir. Acebedo of the CSC-NCR said that the payment of petitioners
separation pay must be in accordance with CSC Resolution No. 92-063 10.

private counsel. No error may thus be attributed to the appellate court when it
recognized the right of respondents to be represented by private counsel.
(2) YES. It is settled that the right to appeal is a mere statutory privilege and may be
exercised only in accordance with the Rules of Court 8. Pursuant to the Rules, service of
notice when a party is represented by counsel should be made upon counsel, and not
upon the party. The purpose of the rule is to maintain a uniform procedure calculated to
place in competent hands the prosecution of a party's case.
However, no error was committed by the Court of Appeals when it ordered the trial
court (a) to elevate the original record of the Civil Case and (b) to desist from any
further proceedings in said case. Petitioners did appeal the decision of the trial court to
the appellate court within the reglementary period to perfect an appeal. Once a written
notice of appeal is filed, appeal is perfected and the trial court loses jurisdiction over the
case, both over the record and subject of the case.
With respect to the trial court's order of partial execution pending appeal, our view is
that it was properly challenged by respondents in a special civil action. We have held
that the execution of a judgment before becoming final by reason of appeal is allowed,
but only in exceptional cases and only if firmly founded upon good reasons for such
execution. In other words, a judge should state in his special order granting a writ of
execution pending appeal "good reasons" justifying the issuance of said writ. The Court
of Appeals found the order of the judge bereft of such "good reasons." In the absence
of good reasons which would justify execution pending appeal, it became incumbent
upon the reviewing court, to order the elevation of the records of the case in due
course, for its appropriate consideration, otherwise failure to do so might constitute
grave abuse of discretion on its part.. To attribute error to the Court of Appeals when it
rendered the assailed decision is to misunderstand the rationale for the action it had


Section 11. Transitory Provisions. To prevent disruption in the delivery of basic urban services
pending the full implementation of the MMDAs organizational structure and staffing pattern, all
officials and employees of the interim MMA shall continue to exercise their duties and functions
and receive their salaries and allowances until they shall have been given notice of change of
duties and functions, and of being transferred to another office or position.
The civil service laws, rules and regulations pertinent to the displacement of personnel affected
by this Act shall be strictly enforced. The national government shall provide such amounts as
may be necessary to pay the benefits accruing to displaced employees at the rate of one and
one-fourth (1) months salary for every year of service: Provided, That, if qualified for retirement
under existing retirement laws, said employees may opt to receive the benefits thereunder.
10 [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.

8 Section 1, Rule 49 of the Rules of Court. "Section 1. Pleadings, motions, service of papers and proof
thereof. - Pleadings, motions, filing and service of papers, and proof thereof, except as otherwise
provided, shall be governed by Rules 7, 8, 9, 13, and 15, in so far as they are not inconsistent
with the provisions of this rule."
Section 2, Rule 13 of the Rules of Court. "Section 2. Papers to be filed and served. - Every order
required by its terms to be served, every pleading subsequent to the complaint, every written
motion other than one which may be heard ex parte, and every written notice, appearance,
demand, offer of judgment or similar papers shall be filed with the court, and served upon the
parties affected thereby. If any of such parties has appeared by an attorney or attorneys, service
upon him shall be made upon his attorneys or one of them, unless service upon the party
himself is ordered by the court. Where one attorney appears for several parties, he shall be
entitled only to one copy of any paper served upon him by the opposite side."




Indeed, the retirement benefits which petitioner had received or has been
receiving under R.A. No. 910 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. More
important, it would be in violation of the 1st par. Sec. 8 of Art. IX-B of the
Constitution 12, which proscribes additional, double, or indirect compensation.
Sec. 11 of R.A. No. 7924 does not specifically authorize payment of additional
compensation for years of government service outside of the MMA.

21 October 1997 Santos appealed to CSC, but it promulgated Resolution No. 974266 which affirms Dir. Acebedo.
19 August 1999 Santos appealed to CA but it affirmed CSC.
1. WON for the purpose of computing or determining 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? (Yes)
2. WON Santos can take refuge under the 2nd par. Sec. 8 of Art. IX-B of the
Constitution 11? (No)
1. YES. First, Sec. 11 cannot 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 Santos. The
separation partook of the nature of a disturbance of compensation; hence, the
separation pay must relate only to the employment thus affected. Second,
Santos 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 Sec. 11. Third, after the approval of his
optional retirement, he was fully paid of his retirement gratuity and monthly
2. NO. Santos cannot take refuge under the second paragraph of Section 8 of
Article IX-B of the Constitution as 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.


February 3, 2000
Other rights: Parliamentary immunity

This being so, while an employee who was paid separation/retirement benefits is not required
to refund the same once reemployed in the government service, as aforestated, for reasons of
equity however, it would be proper and logical that said separation/retirement benefits should
nevertheless be deducted from the retirement/[separation] pay to be received by the employee
concerned. Moreover, in this instance, the employee concerned has the option either to refund
his separation/retirement benefits and claim his gross retirement/separation pay without any
deduction corresponding to his separation pay received, or not [to] refund his
separation/retirement pay but suffer a deduction of his retirement/separation gratuity for the
total amount representing his previous separation/retirement pay received.
11 Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

Romeo Jaloslos is confined at Bilibid while his conviction for statutory rape on
2 counts and acts of lasciviousness on 6 counts is pending appeal
Jaloslos filed a Motion to be Allowed to Discharge Mandate as Member of
HoR on the following grounds:
his reelection being an expression of popular will cannot be rendered
inutile by any ruling, giving priority to any right or interest not even
the police power of the State.
To deprive the electorate of their elected representative amounts to
taxation without representation.
To bar him from performing his duties amounts to his
suspension/removal and mocks the renewed mandate entrusted to
him by the people.
The electorate of the First District of Zamboanga del Norte wants
their voice to be heard.
A precedent-setting U.S. ruling allowed a detained lawmaker to attend
sessions of the U.S. Congress.

12 No elective or appointive public officer or employee shall receive additional, double, or

indirect compensation, unless specifically authorized by law.



The House treats Jaloslos as a bona fide member thereof and urges a
co-equal branch of government to respect its mandate.
The concept of temporary detention does not necessarily curtail the
duty of Jaloslos to discharge his mandate.
He has always complied with the conditions/restrictions when
allowed to leave jail.
The motion asks that he be allowed to attend legislative sessions and
committee hearings despite his conviction because of the mandate of
sovereign will


Article VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses
punishable by not more than six years imprisonment, be privileged from arrest
during his attendance at its sessions and in going to and returning from the
For offenses punishable by more than six years imprisonment, there was no immunity
from arrest. The restrictive interpretation of immunity and the intent to confine it
within carefully defined parameters is illustrated by the concluding portion of the
provision, to wit:
xxx but the Batasang Pambansa shall surrender the member involved to the
custody of the law within twenty four hours after its adjournment for a recess
or for its next session, otherwise such privilege shall cease upon its failure to
do so.

w/n motion should be granted OR as SC puts it does membership in Congress exempt
an accused from statutes and rules which apply to validly incarcerated persons in

The present Constitution adheres to the same restrictive rule minus the obligation of
Congress to surrender the subject Congressman to the custody of the law. The
requirement that he should be attending sessions or committee meetings has also been
removed. For relatively minor offenses, it is enough that Congress is in session.

SC Ratio:
The immunity from arrest or detention of Senators and members of the House of
Representatives, the latter customarily addressed as Congressmen, arises from a
provision of the Constitution. The history of the provision shows that the privilege has
always been granted in a restrictive sense. The provision granting an exemption as a
special privilege cannot be extended beyond the ordinary meaning of its terms. It may
not be extended by intendment, implication or equitable considerations.

Re: member of Congress function is to attend sessions


The 1935 Constitution provided in its Article VI on the Legislative Department:

Sec. 15. The Senators and Members of the House of Representatives shall in
all cases except treason, felony, and breach of the peace be privileged from
arrest during their attendance at the sessions of Congress, and in going to and
returning from the same; xxx.

Jalosjos has not given any reason why he should be exempted from the
operation of Sec. 11, Art. VI of the Constitution
Congress cannot compel absent members to attend sessions if the reason for
the absence is a legitimate one
The confinement of a Congressman charged with a crime punishable by
imprisonment of more than six months is not merely authorized by law, it has
constitutional foundations.

Re: the dreaded Aguinaldo v. Santos 13 doctrine:

Because of the broad coverage of felony and breach of the peace, the exemption applied
only to civil arrests. A congressman like the accused-appellant, convicted under Title
Eleven of the Revised Penal Code could not claim parliamentary immunity from arrest.
He was subject to the same general laws governing all persons still to be tried or whose
convictions were pending appeal.

The Court should never remove a public officer for acts done prior to his present term of
office. To do otherwise would be to deprive the people of their right to elect their officers. When
a people have elected a man to office, it must be assumed that they did this with the knowledge
of his life and character, and that they disregarded or forgave his fault or misconduct, if he had
been guilty of any. It is not for the Court, by reason of such fault or misconduct, to practically
overrule the will of the people.

The 1973 Constitution broadened the privilege of immunity as follows:



Misplaced; Aguinaldo case involves the administrative removal of a public

officer for acts done prior to his present term of office
It does not apply to imprisonment arising from the enforcement of criminal
Moreover, in the same way that preventive suspension is not removal,
confinement pending appeal is not removal. He remains a congressman unless
expelled by Congress or, otherwise, disqualified
public self-defense;
as an example and warning to others;
purposes of administration of justice
it is the injury to the public which State action in criminal law seeks to

Re: Jaloslos assurance of not escaping his sentence if allowed


It will be recalled that when a warrant for accused-appellants arrest was issued,
he fled and evaded capture despite a call from his colleagues in the HoR for
him to attend the sessions and to surrender voluntarily to the authorities
Ironically, it is now the same body whose call he initially spurned which
accused-appellant is invoking to justify his present motion. This cannot be
countenanced because, to reiterate, aside from its being contrary to welldefined Constitutional restrains, it would be a mockery of the aims of the
States penal system.

to join "living-out" prisoners on "work-volunteer program" for the

purpose of 1) establishing a mahogany seedling bank and 2) planting
mahogany trees, at the NBP reservation. For this purpose, he was
assigned one guard and allowed to use his own vehicle and driver in
going to and from the project area and his place of confinement;
to continue with his dental treatment at the clinic of his dentist in
Makati City;
to be confined at the Makati Medical Center in Makati City for his
heart condition.
SC: no showing that the above privileges are peculiar to him or to a member of
Emergency or compelling temporary leaves from imprisonment are allowed to
all prisoners, at the discretion of the authorities or upon court orders.
What Jalosjos seeks is not of an emergency nature. Allowing accused-appellant
to attend congressional sessions and committee meetings for five (5) days or
more in a week will virtually make him a free man with all the privileges
appurtenant to his position. Such an aberrant situation not only elevates
accused-appellants status to that of a special class, it also would be a mockery
of the purposes of the correction system.

Re: mandate of sovereign will:


Re: previous motions granted by Makati RTC for furlough



Jaloslos managed to temporarily leave Makati City Jail (previous to Bilibid)

to attend hearings of the House Committee on Ethics on the issue of
whether to expel/suspend him;
to undergo dental examination and treatment at the clinic of his
dentist in Makati City;
to undergo a thorough medical check-up at the Makati Medical
Center, Makati City;
to register as a voter at his hometown in Dapitan City (commuted by
chartered plane and private vehicle)
and after his transfer to Bilibid

Notwithstanding his incarceration, Jalosjos has already been discharging his

Full complement of staff paid for by Congress
He has an office at the Admin Bldg of Billibid where he attends to
his constitutents
He has filed several bills and resolutions while in jail
He has been receiving his salaries and other monetary benefits
SC: Being a detainee, accused-appellant should not even have been allowed by
the prison authorities at the National Pentientiary to perform these acts.
When the voters of his district elected the accused-appellant to Congress, they
did so with full awareness of the limitations on his freedom of action; that he
could achieve only such legislative results which he could accomplish within
the confines of prison.

Re: Equal protection clause:



Does being an elective official result in a substantial distinction that allows

different treatment? Is being a Congressman a substantial differentiation which


removes the accused-appellant as a prisoner from the same class as all persons
validly confined under law?
SC: election to the position of Congressman is not a reasonable classification
in criminal law enforcement
The functions and duties of the office are not substantial distinctions which lift
him from the class of prisoners interrupted in their freedom and restricted in
liberty of movement.
Lawful arrest and confinement are germane to the purposes of the law and
apply to all those belonging to the same class.[10]

his service from January 22, 1991 to January 22, 1992, citing CSC
Memorandum Circular No. 27, series of 1990, the pertinent of which reads:
a. 1. Any request for the extension of service of compulsory retirees to
complete the fifteen (15) years service requirement for retirement
shall be allowed only to permanent appointees in the career service
who are regular members of the Government Service Insurance
System (GSIS), and shall be granted for a period not exceeding one
(1) year.
Issue: W/N the CSC may extend the extension of service of a compulsory retiree to
complete the 15 year of service is limited to 1 year. YES


Imprisonment is the restraint of a mans personal liberty;

coercion exercised upon a person to prevent the free exercise of his power of
As a punishment, it is restraint by judgment of a court or lawful tribunal, and is
personal to the accused
it "[is] something more than mere loss of freedom. It includes the notion
of restraint within limits defined by wall or any exterior barrier."[15]

Administrative Code of 1987 (November 24, 1987) cannot be interpreted to
authorize the Civil Service Commission to limit to only one (1) year the
extension of service of an employee who has reached the compulsory
retirement age of 65 without having completed 15 years of service, when said
limitation his no relation to or connection with the provision of the law
supposed to be carried into effect.
Section 12, par. (14), Chapter 3, Subtitle A, Title I, Book V of the
Administrative Code of 1987 provides thus:
o (14) Take appropriate action on all appointments and other personnel
matters in the Civil Service including extension of service beyond
retirement age;
As a law of general application, the Administrative Code of 1987 cannot
authorize the modification of an express provision of a special law (Revised
Government Service Insurance of 1977).
Section 11 paragraph (b) of the Revised Government Service Insurance Act of
1977 expressly provides, thus:
o Sec. 11. Conditions for Old-Age Pension. (a) Old-age pension
shall be paid to a member who:
o (b) Unless the service is extended by appropriate authorities,
retirement shall be compulsory for an employee of sixty-five years of
age with at least fifteen years of service: Provided, That if he has less
than fifteen years of service, he shall be allowed to continue in the
service to complete the fifteen years. (Emphasis supplied)
Being remedial in character, a statute creating a pension or establishing
retirement plan should be liberally construed and administered in favor of the
persons intended to be benefited thereby.

Cena v CSC




Gaudencio T. Cena entered the government service on November 16, 1978 as

Legal Officer II of the Law Department of Caloocan City where he stayed for
seven (7) years until his transfer on November 16, 1986 to the Office of the
Congressman of the First District of Caloocan City where he worked for only
three (3) months, or until February 15, 1987, as Supervising Staff Officer.
On July 16, 1987, he was appointed as Registrar of the Register of Deeds of
Malabon, Metro Manila which he held until he reached the age of 65 years old.
By then, he would have rendered a total government service of 11 years, 9
months and 6 days.
Before reaching his 65th birthday, he requested the Secretary of Justice,
through Administrator Teodoro G. Bonifacio of the Land Registration
Authority (LRA), that he be allowed to extend his service to complete the 15year service requirement to enable him to retire with full benefits of old-age
pension under Section 11, par. (b) of P.D. 1146.
The Civil Service Commission denied petitioner Cena's request for extension
of service
On October 17, 1990, the Civil Service Commission set aside its CSC
Resolution No. 90-681 and allowed Gaudencio Cena a one-year extension of



There is thus no justifiable reason in not allowing ordinary employees in the

Executive Branch on a case to case basis, to continue in the service to
complete the 15-year service requirement to avail of the old-age pension under
Section 11 of P.D. 1146. By limiting the extension of service to only one (1)
year would defeat the beneficial intendment of the retirement provisions of
P.D. 1146.
In resolving the question whether or not to allow a compulsory retiree to
continue in the service to complete the 15-year service, there must be present
an essential factor before an application under Section 11 par. (b) of P.D. 1146
may be granted by the employer or government office concerned.
In the case of officials of the Judiciary, the Court allows a making up or
compensating for lack of required age or service only if satisfied that the career
of the retiree was marked by competence, integrity, and dedication to the
public service (Re: Gregorio Pineda,supra). It must be so in the instant case.
It is interesting to note that the phrase "he shall be allowed to continue in the
service to complete the fifteen years" found in Section 11 (b) of P.D. 1146 is a
reproduction of the phrase in the original text found in Section 12 (e) of
Commonwealth Act 186, as amended, otherwise known as the "Government
Service Insurance Act" approved on November 14, 1936.
The Land Registration Authority (LRA) of the Department of Justice has the
discretion to allow petitioner Gaudencio Cena to extend his 11 years, 9 months
and 6 days of government service to complete the 15-year service so that he
may retire with full benefits under Section 11 par. (b) of P.D. 1146.


than fifteen years of service, he shall be allowed to continue in the

service to complete the fifteen years.
would indicate, in my opinion, that the government employee who has reached sixtyfive (65) years of age but has rendered less than fifteen (15) years of service, has THE
RIGHT to continue in the service to complete fifteen (15) years, and that the
government office or agency where he is employed cannot but allow the exercise of
such right of the subject employee. The employing government office or agency must
allow the government employee who has reached sixty-five (65) years of age, but has
rendered less than fifteen (15) years of service, the opportunity to complete the fifteen
(15) years of service in order to enjoy the benefits of old-age pension. If such
government employee is no longer fit to complete the remainder of the fifteen (15) year
service (after reaching age 65), he should be terminated for cause, after appropriate
proceedings, otherwise, he has the right to continue in the service for purposes of
completing his fifteen (15) years of service.
GRIO-AQUINO, J., dissenting:
Inasmuch as P.D. No. 1146 is silent on the matter, the Civil Service Commission,
pursuant to the authority granted to it in the Administrative Code of 1987, "to take
appropriate action on . . . all personnel matters in the Civil Service, including extension of
service beyond retirement age" (paragraph 14, Section 12, Chapter 3, Subtitle A, Title I, Book
V), appropriatelypromulgated Memorandum Circular No. 27, Series of 1990, limiting the
extension of service to "not exceeding one year." The pertinent provisions of the
circular are quoted below:

Separate Opinions
PADILLA, J.: concurring:

1. Any request for the extension of service of compulsory retirees to

complete the fifteen (15) years service requirement for retirement
shall be allowed only to permanent appointees in the career service
who are regular members of the Government Service Insurance
System (GSIS), and shall be granted for a period not exceeding one (1) year.

The majority opinion would vest upon the Land Registration Authority "the discretion
to allow petitioner Gaudencio Cena to extend his eleven (11) years, nine (9) months and
six (6) days of government service to complete the fifteen (15) years service so that he
may retire with full benefits under Section 11 par. (b) of P.D. 1146" (decision, p. 16). A
reading of the cited provision of law which reads as follows:

xxx xxx xxx

2. Any request for the extension of service of compulsory retiree to

complete the fifteen (15) years service requirement for retirement
who entered the government service at 57 years of age or over upon
prior grant of authority to appoint him or her, shall no longer be

(b) Unless the service is extended by appropriate authorities,

retirement shall be compulsory for an employee of sixty-five years of
age with at least fifteen years of service: Provided, That if he has less

3. Any request for the extension of service to complete the fifteen

(15) years service requirement for retirement shall be filed not later
than three (3) years prior to the date of compulsory retirement.

Sec. 11. Conditions for Old-Age Pension.



4. Any request for the extension of service of a compulsory retiree

who meets the minimum number of years of service for retirement
purposes may be granted for six (6) months only with no further
extension. (pp. 64-65, Rollo; emphasis supplied.)


young civil service applicants who have already passed the various government
examinations but must wait for jobs to be vacated by "extendees" who have long passed
the mandatory retirement age but are enjoying extension of their government service to
complete 15 years so they may qualify for old-age pension.
ROMERO, J.: dissenting:

The maximum allowable extension of "not exceeding one year" fixed in paragraph 1 of
CSC Memorandum Circular No. 27 is reasonable, just, and consistent with the general
rule that "retirement shall be automatic and compulsory at the age of 65 years" (Sec. 12[e],
Com. Act 186).

J. Aquino's interpretation is in consonance with the spirit of practically all existing

retirement laws fixing thecompulsory retirement age of government employees at sixtyfive. The precursor of Presidential Decree No. 1146, Commonwealth Act No. 186,
explicitly provided that retirement should be "automatic and compulsory at the age of
sixty-five years." The phrase "automatic and compulsory" with reference to the
retirement age of sixty-five years had been retained in subsequent amendatory laws,
specifically Republic Act Nos. 660, 728 and 3096.

Section 11, paragraph (b) of P.D. 1146 contemplates a borderline situation where a
compulsory retiree on his 65th birthday has completed more than 14, but less than 15,
years of government service, or a few months short of the 15-year requirement which
would enable him to collect an old-age pension. Said retiree may be granted an
extension of not more than one year to enable him to complete 15 years of government
service and receive full retirement benefits including old-age pension which, otherwise,
he would not be entitled to receive. Such extension will enable him to retire after his
65th birthday, but before he attains 66 years of age, hence, still within the mandatory
retirement age of 65 years fixed by law, for as a matter of fact, one is 65 years old upon
reaching his 65th birthday until the eve of his 66th.

The word "compulsory" should be understood in its legal signification: involuntary or

forced in contradistinction to voluntary. 1 Considering the use of the word
"compulsory" in connection with age sixty-five, the same word in Sec. 11 (b) of P.D.
No. 1146 should refer only to the specified retirement age and not to the fifteen-year
service mentioned therein. This paragraph merely cites one class of prospective retirees
which would be eligible to receive old-age pension and that is, those who have reached
the age of sixty-five years while at the same time having to their credit "at least fifteen
years of service." That this is the intendment of the law is borne out by the succeeding
proviso that contemplates the possibility that the same sixty-five year old may have
served "less than fifteen years of service."

Since Cena, on his 65th birthday, had rendered service to the government for a total of
only 11 years, 9 months and 6 days, he is not entitled to an extension of his service to
complete 15 years for it would illegally and unreasonably stretch his retirement age
beyond his 68th birthday, or long after he shall have ceased to be 65 years old.
As Cena would not be able to complete 15 years of government service even if he were
given a one-year extension of service, paragraph 1 of CSC Memorandum Circular No.
27 may not be availed of by him. The applicable legal provision to him would be
paragraph (b), Section 12 of P.D. 1146 which provides that "a member who has
rendered at least three (3) years but less than 15 years of service at the time of separation
shall, . . . upon separation after age sixty, ** receive a cash payment equivalent to 100% of
his average monthly compensation for every year of service." He is not entitled to an
old-age pension, length of service being the determinant of whether or not a retired
employee would be entitled to such pension.

To interpret the law as meaning that the age limit and the fifteen-year length of service
should concur before a government employee is allowed the old-age pension may well
give rise to a situation wherein a person who enters government service a year before
reaching age sixty-five would have to wait until he is seventy-nine years old to be
entitled to the old-age pension provided for in P.D. No. 1146, which is an absurdity. To
give substance to the real signification of the law, the proviso in Sec. 11 (b) which states
that a government employee who has "less than fifteen years of service, . . . shall be
allowed to continue in the service to complete the fifteen years," should contemplate a
situation wherein the employee has only a minimal period of time left to complete the
fifteen-year period. What this minimal period is, the Civil Service Commission has
correctly declared to be "not exceeding one year." Otherwise, the government may well
be saddled with a corps of civil servants that may be regarded graphically as liabilities
instead of assets.

Worth pondering also are the points raised by the Civil Service Commission that
extending the service of compulsory retirees for longer than one (1) year would: (1) give
a premium to late-comers in the government service and in effect discriminate against
those who enter the service at a younger age; (2) delay the promotion of the latter and
of next-in-rank employees; and (3) prejudice the chances for employment of qualified



Encouraging the retention of employees well beyond the age of sixty-five years would,
in effect, swell the numbers of the qualified but unemployed many who, even now, face
the bleak prospect of being edged out of the labor market by those who can but offer to
the government and the people their diminishing physical and mental vitality.


Any request for extension of service of compulsory retirees to complete the fifteen
years service requirement for retirement shall be allowed only to permanent
appointees in the career service who are regular members of the Government Service
Insurance System (GSIS) and shall be granted for a period of not exceeding one (1)


Mr. Rabor sought reconsideration, this time invoking the Decision of this Court in Cena
v. Civil Service Commission. Rabor's motion for reconsideration was denied by the

FACTS: Petitioner Dionisio M. Rabor is a Utility Worker in the Office of the Mayor,
Davao City. He entered the government service as a Utility worker at the age of 55

Petitioner Rabor sent another letter to the Office of the Mayor, Davao City, again
requesting that he be allowed to continue rendering service to the Davao City
Government as Utility Worker in order to complete the fifteen (15) years service
requirement under P.D. No. 1146. This request was once more denied by Mayor
Duterte. Mayor Duterte pointed out that, under Cena grant of the extension of service
was discretionary on the part of the City Mayor, but that he could not grant the
extension requested.

Alma, D. Pagatpatan, an official in the Office of the Mayor of Davao City, advised
Dionisio M. Rabor to apply for retirement, considering that he had already reached the
age of sixty-eight (68) years and seven (7) months, with thirteen (13) years and one (1)
month of government service.
Rabor responded to this advice by exhibiting a "Certificate of Membership" issued by
the Government Service Insurance System ("GSIS"). At the bottom of this "Certificate
of Membership" is a typewritten statement of the following tenor: "Service extended
to comply 15 years service reqts." This statement is followed by a non-legible initial
with the following date "2/28/91."

ISSUE: Whether or not Rabor should be allowed to continue rendering service to

complete the 15 years service requirement for him to be able to avail of the benefits of
the retirement laws given to employees of the Government
NOTE: Rabor is already 68 years old, past the mandatory retirement age of 65. He
needs 2 years extension to complete the 15-year requirement.

Civil Service Regional Office advised Davao City Mayor Rodrigo R. Duterte that the
extension of services of Mr. Rabor is contrary to M.C. No. 65 of the Office of the
President, which states that officials and employees who have reached the compulsory
retirement age of 65 years shall not be retained the service, except for extremely
meritorious reasons in which case the retention shall not exceed six (6) months. The
services of Rabor as Utility Worker is already non-extendible.

HELD: NO. Rabor should not be allowed to continue rendering service to complete
the 1t-year service requirement. The ruling in Cena (which invalidated Civil Service
Memorandum Circular No. 27, S. 1990,) is modified.

Mayor Duterte advised Rabor "to stop reporting for work effective August 16, 1991."


Rabor then sent to the Regional Director, CSRO-XI, a letter, asking for extension of his
services in the City Government until he "shall have completed the fifteen (15) years
service [requirement] in the Government so that [he] could also avail of the benefits of
the retirement laws given to employees of the Government." He asked for an extension
for about two (2) years. This request was denied.


The Civil Service Commission dismissed the appeal of Mr. Rabor. It referred to CSC
Memorandum Circular No. 27, s. 1990 provides, in part:


Cena, in striking down Civil Service Commission Memorandum No. 27, took a very
narrow view on the question of what subordinate rule-making by an administrative
agency is permissible and valid. Cena when it required a considerably higher degree
of detail in the statute to be implemented, went against prevailing doctrine.
In Cena, J. Medialdea said that the rule on limiting to one the year the extension of service of
an employee who has reached the compulsory retirement age of sixty-five (65)
years, but has less than fifteen (15) years of service under Civil Service Memorandum
Circular No. 27, S. 1990, cannot be accorded validity because it has no relationship or connection
with any provision of P.D. 1146 supposed to be carried into effect. The rule was an addition to or


extension of the law, not merely a mode of carrying it into effect. The Civil Service
Commission has no power to supply perceived omissions in P.D. 1146.
All that may be reasonably demanded is a showing that the delegated legislation
consisting of administrative regulations are germane to the general purposes
projected by the governing or enabling statute. Civil Service Memorandum Circular
No. 27, Series of 1990 14 passed this test.
The limitation of permissible extensions of service after an employee has reached
sixty-five (65) years of age has reasonable relationship or is germane to the
provisions of the present Civil Service Law which states that the CSC has to
powers and functions to Administer the retirement program for government officials and
employees, and accredit government services and evaluate qualifications for retirement.
The physiological and psychological processes associated with ageing in human
beings are in fact related to the efficiency and quality of the service that may be
expected from individual persons. Extending the service of compulsory retirees for
longer than one (1) year would:




(12) years and finally retire at the age of seventy-seven (77). This reduces the
significance of the general principle of compulsory retirement at age sixty-five (65)
very close to the vanishing point. , a person sixty-four (64) years of age may be
appointed to the government service and one (1) year later may demand extension
of his service for the next fourteen (14) years; he would retire at age seventy-nine (79).
7. There should be a certain minimum turn-over in the government service and that
opportunities for government service should be distributed as broadly as
possible, specially to younger people, considering that the bulk of our
population is below thirty (30) years of age. That same general policy also reflects
the life expectancy of our people which is still significantly lower than the life
expectancy of, e.g., people in Northern and Western Europe, North America and
8. The doctrine of Cena should be and is hereby modified to this extent: that Civil
Service Memorandum Circular No. 27, Series of 1990, more specifically paragraph
(1) thereof, is hereby declared valid and effective. The holding in Cena that the head
of the government agency concerned is vested with discretionary authority to allow
or disallow extension of the service of an official or employee who has reached
sixty-five (65) years of age without completing fifteen (15) years of government
service; this discretion is, nevertheless, to be exercised conformably with the
provisions of Civil Service Memorandum Circular No. 27, Series of 1990.

(1) give a premium to late-comers in the government service and in effect discriminate against
those who enter the service at a younger age;
(2) delay the promotion of the latter and of next-in-rank employees; and
(3) prejudice the chances for employment of qualified young civil service applicants who have already
passed the various government examination but must wait for jobs to be vacated by
"extendees" who have long passed the mandatory retirement age but are enjoying
extension of their government service to complete 15 years so they may qualify for
old-age pension.


9. Petition for certiorari filed by Rabor is DISMISSED for lack of merit. His request to
be allowed to continue his service as Utility Worker at the Office of the Mayor of
the City of Davao for two years to complete the mandatory 15-year requirement for
retirement purposes is DENIED.

Imposing no limitations on permissible extensions to government service would

give absurd results. An employee who has rendered only three (3) years of
government service at age sixty-five (65) can have his service extended for twelve

GSIS v. Pineda, on their own behalf and on behalf of all GSIS retirees
Ynares-Santiago, J.| November 10, 2004
*this is a resolution

1. Any request for the extension of service of compulsory retirees to complete the fifteen (15) years
service requirement for retirement shall be allowed only to permanent appointees in the career
service who are regular members of the Government Service Insurance System (GSIS),
and shall be granted for a period not exceeding one (1) year.
2. Any request for the extension of service of compulsory retiree to complete the fifteen (15)
years service requirement for retirement who entered the government service at 57 years of
age or over upon prior grant of authority to appoint him or her, shall no longer be granted.
3. Any request for the extension of service to complete the fifteen (15) years service
requirement of retirement shall be filled not later than three (3) years prior to the date of
compulsory retirement.
4. Any request for the extension of service of a compulsory retiree who meets the minimum
number of years of service for retirement purposes may be granted for six (6) months only
with no further extension.



The Court promulgated a decision on these two consolidated cases partially

granting the first petition which reversed the COAs disallowance of certain
fringe benefits granted to GSIS employees. As a result, the Court ordered the
refund of amounts representing fringe benefits according to those allowed in
the first petition.


The benefits which the Court ordered to be refunded included increases in

longevity pay, childrens allowance and management contribution to the
Provident Fund as well as premiums for group personal accident insurance.
On the other hand, the Court affirmed the COA disallowance of loyalty and
service cash award as well as housing allowance in excess of that approved by
the COA. Those benefits disallowed by the COA under the second petition
includes initial payment of productivity bonus, accelerated implementation of
the new salary schedule, 1995 mid-year financial assistance and increase in
clothing, rice, and meal allowances. Amount corresponding to these benefits
were previously deducted by GSIS from respondents retirement benefits in
view of the COA disallowance in the first petition.


NOTE: The question raised before the Court in the second petition was the issue of the
Boards jurisdiction to resolve respondents claim for refund. The CA did not rule on
the main controversy of WON the COA disallowances could be deducted because the
Board ordered the dismissal of respondents claim for alleged lack of jurisdiction, before
it could even decide on the principal issue.
WON the deductions were valid under Sec. 39 of RA 8291. NO. THE GSIS IS

Respondents filed a motion for amendatory and clarificatory judgment

averring that the Court did not categorically resolve the issue raised in the
second petition, namely: WON the GSIS may lawfully deduct any amount
from their retirement benefits in light of Sec. 39 of RA 8291 which according
to respondents state that no amount whatsoever could be legally deducted
from retirement benefits, even those amount representing COA disallowances.
They posit that the Court should have ordered refund of all amount claimed,
regardless if these were allowed by the COA. Respondents further claim
damages, citing bad faith on the part of GSIS.

The last paragraph of Sec. 39, RA 8291 provides:
SEC. 39. Exemption from Tax, Legal Process and Lien.The funds and/or the properties referred to herein as well as the
benefits, sums or monies corresponding to the benefits under this
Act shall be exempt from attachment, garnishment, execution, levy
or other processes issued by the courts, quasi-judicial agencies or
administrative bodies including Commission on Audit (COA)
disallowances and from all financial obligations of the members,
including his pecuniary accountability arising from or caused or
occasioned by his exercise or performance of his official functions or
duties, or incurred relative to or in connection with his position or
work except when his monetary liability, contractual or

GSIS posited that the other benefits not passed upon in the main judgment
should be understood by respondents as having been impliedly denied. It also
sought clarification of the Courts decision insofar as it declared that there was
no identity of subject matter between the COA proceedings, from which the
first petition stemmed, and respondents claim under the second petition,
which emanated from an order of the GSIS Board of Trustees (Board). As for
the damages claimed by respondents, GSIS insists that it made the deductions
in good faith for these were done in accordance with COA directives.

otherwise, is in favor of the GSIS.

On Jan. 2003, respondents filed another motion claiming that GSIS was
deducting new and unspecified sums from the amount it was refunding to
respondents, which included car loan arrearages, disallowed employees
compensation claims and the like. Also, they prayed for the inclusion in the
refundable amount of dividends on the management contribution to the
Provident Fund amounting to P50M which was retained by the GSIS for more
than 5 years and earned a considerable sum. GSIS declared and paid dividends
on said contribution to incumbent officials and employees but refused to
extend the same benefits to respondent retirees. Moreover, respondents
sought refund of Permanent Partial Disability that GSIS supposedly paid to
some of the respondents.

It is clear from the above provision that COA disallowance cannot be

deducted from benefits under RA 8291. Retirements benefits cannot be
diminished by COA disallowances in view of the clear mandate of the law. It is
a basic rule in statutory construction that if a statute is clear, plain, and free
from ambiguity, it must be given its literal meaning (verba legis).

The interpretation of GSIS of Sec. 39 that COA disallowances have become

monetary liabilities of respondents to the GSIS and fall under the exception is




wrong. That retirement pay accruing to a public officer may not be withheld
and applied to his indebtedness to the government has been settled in Cruz v.
Tantuico, Jr. and Hunt v. Hernandez. The policy of exempting retirement
benefits from attachment, levy and execution, as well as unwarranted
deductions, has been embodied in a long line of retirement statutes such as
Act. No. 4051 which provides for the payment of gratuity to officers and
employees of the Insular Government due to reorganization and CA No. 186
(and PD No. 1146 which amended it), establishing the GSIS.

While the GSIS cannot directly proceed against respondents retirement

benefits, it can nonetheless seek restoration of the amounts by means of a
proper court action for its recovery. Respondents themselves submit that this
should be the case, although any judgment rendered therein cannot be
enforced against retirement benefits due to the exemption provided in Section
39 of RA 8291. However, there is no prohibition against enforcing a final
monetary judgment against respondents other assets and properties. This is
only fair and consistent with basic principles of due process.

The latest GSIS enactment, RA 8291, provides for a more detailed and wider
range of exemptions under Section 39. Aside from exempting benefits from
judicial processes, it likewise unconditionally exempts benefits from quasijudicial and administrative processes, including COA disallowances, as well as
all financial obligations of the member. The latter includes any pecuniary
accountability of the member which arose out of the exercise or performance
of his official functions or duties or incurred relative to his position or work.
The only exception to such pecuniary accountability is when the same is in
favor of the GSIS.

As such, a proper accounting of the amounts due and refundable is in order.

In rendering such accounting, the parties must observe the following
All deductions from respondents retirement benefits should be
refunded except those amounts which may properly be defined as monetary
liability to the GSIS;
Any other amount to be deducted from retirement benefits must be
agreed upon by and between the parties; and
Refusal on the part of respondents to return disallowed benefits shall
give rise to a right of action in favor of GSIS before the courts of law.
Finally, on respondents claim that the GSIS acted in bad faith when it
deducted the COA disallowances from their retirement benefits, except for
bare allegations, there is no proof or evidence of the alleged bad faith and
partiality of the GSIS. Moreover, the latter cannot be faulted for taking
measures to ensure recovery of the COA disallowances since respondents have
already retired and would be beyond its administrative reach. The GSIS merely
acted upon its best judgment and chose to err in the side of prudence rather
than suffer the consequence of not being able to account for the COA
disallowances. It concededly erred in taking this recourse but it can hardly be
accused of malice or bad faith in doing so.

Notwithstanding the foregoing, however, the Court found it necessary to

nonetheless differentiate between those benefits which were properly
disallowed by the COA and those which were not. As to the benefits which
were improperly disallowed, the same rightfully belong to respondents without
qualification. As for benefits which were justifiably disallowed by the COA, the
same were erroneously granted to and received by respondents who now have
the obligation to return the same to the System.
It cannot be denied that respondents were recipients of benefits that were
properly disallowed by the COA. These COA disallowances would otherwise
have been deducted from their salaries, were it not for the fact that
respondents retired before such deductions could be effected. The GSIS can
no longer recover these amounts by any administrative means due to the
specific exemption of retirement benefits from COA disallowances.
Respondents resultantly retained benefits to which they were not legally
entitled which, in turn, gave rise to an obligation on their part to return the
amounts under the principle of solutio indebiti under Art. 2154 of the Civil

Leonardo-De Castro, J |Sept 4, 2008


petitioner appeared before respondent Senate Committees and testified for 11

hours on matters concerning the NBN Project
o disclosed that then COMELEC Chairman Benjamin Abalos offered
him P200M in exchange for his approval of the NBN Project



received by a close advisor of the President, and (c) respondent Committees

failed to adequately show a compelling need that would justify the limitation of
the privilege and the unavailability of the information elsewhere by an
appropriate investigating authority
second , respondent Committees committed GAD in issuing the contempt order
(a) there was a valid claim of executive privilege
(b) their invitations to petitioner did not contain the questions relevant to the
(c) there was a cloud of doubt as to the regularity of the proceeding that led to
their issuance of the contempt order
(d) they violated Section 21, Article VI of the Constitution because their
inquiry was not in accordance with the "duly published rules of procedure,"
(e) they issued the contempt order arbitrarily and precipitately

informed Pres. Arroyo of the bribery attempt and that she instructed
him not to accept the bribe
o when probed further on President Arroyo and petitioners
discussions relating to the NBN Project, petitioner refused to answer,
invoking "executive privilege"
o petitioner refused to answer questions on:
(a) WoN President Arroyo followed up the NBN Project
(b)WoN she directed him to prioritize it
(c) WoN she directed him to approve it
Respondent Committees persisted, later requiring him to appear and testify
once more
Executive Secretary Eduardo R. Ermita wrote to respondent Committees and
requested them to dispense with petitioners testimony on the ground of
executive privilege
o invoked ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public
officials which are considered executive privilege
o information sought to be disclosed might impair our diplomatic as
well as economic relations with the Peoples Republic of China
petitioner did not appear before respondent Committees upon orders of the
o respondent Committees issued the show-cause letter
o petitioner manifested that it was not his intention to ignore the
Senate hearing and that he thought the only remaining questions were
those he claimed to be covered by executive privilege. Willing to
appear but just requested that he be furnished "in advance as to what
else" he "needs to clarify"
Respondent Committees issued Order citing petitioner in contempt and
ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms
until such time that he would appear and give his testimony
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent
Application for TRO/Preliminary Injunction)
o SC granted his petition for certiorari on two grounds:
first, the communications elicited by the 3 questions were covered by executive
presidential communications privilege because (a) they related to a
quintessential and non-delegable power of the President, (b) they were

respondent Committees filed the present MR

(1) WoN there is a recognized presumptive presidential communications privilege in our
legal system (YES)
Respondent: Courts declaration that presidential communications are presumptively
privileged reverses the "presumption" in Senate v. Ermita which inclines heavily against
executive secrecy and in favor of disclosure
SC: presidential communications privilege is fundamental to the operation
of government and inextricably rooted in the separation of powers under the
o there are certain types of information which the government may
withhold from the public
o there is a "governmental privilege against public disclosure with
respect to state secrets regarding military, diplomatic and other
national security matters"
o the right to information does not extend to matters recognized
as privileged information under the separation of powers, by
which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet
Senate v. Ermita: Section 2(b) of EO 464 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is presumed to
bear the Presidents authority and has the effect of prohibiting the official from
appearing before Congress, subject only to the express pronouncement of the President



that it is allowing the appearance of such official. These provisions thus allow the
President to authorize claims of privilege by mere silence.
SC: The constitutional infirmity found in the blanket authorization to invoke
executive privilege granted by the President to executive officials in Sec. 2(b)
of E.O. No. 464 does not obtain in this case
o factual difference: in this case, President herself, through Executive
Secretary Ermita, who invoked executive privilege
contrary to the claim of respondents, the Decision in this present case hews
closely to the ruling in Senate v. Ermita
o Schwart defines executive privilege as "the power of the
Government to withhold information from the public, the
courts, and the Congress
o When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be
exempted from this power - the President on whom executive power
is vested, hence, beyond the reach of Congress except through the
power of impeachment.
o if what is involved is the presumptive privilege of presidential
communications when invoked by the President on a matter clearly
within the domain of the Executive, the said presumption dictates
that the same be recognized and be given preference or priority, in
the absence of proof of a compelling or critical need for disclosure by
the one assailing such presumption.


SC: fact that a power is subject to the concurrence of another entity does not
make such power less executive; final decision in the exercise of an executive
power is still lodged in the Office of the President
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential
communications privilege but, in any case, it is not conclusive.
Respondent: must reconsider the application of the "doctrine of operational
proximity" for the reason that "it maybe misconstrued to expand the scope of
the presidential communications privilege to communications between those
who are operationally proximate to the President but who may have "no
direct communications with her
SC: the danger of expanding the privilege "to a large swath of the executive
branch" (a fear apparently entertained by respondents) is absent because the
official involved here is a member of the Cabinet, thus, properly within the
term "advisor" of the President; in fact, her alter ego and a member of her
official family
in circumstances in which the official involved is far too remote, this Court
also mentioned in the Decision the organizational test laid down in Judicial
Watch, Inc. v. DOJ
o goes to show that the operational proximity test used in the Decision
is not considered conclusive in every case
o main consideration is to limit the availability of executive privilege
only to officials who stand proximate to the President, not only by
reason of their function, but also by reason of their positions in the
Executives organizational structure
C. The Presidents claim of executive privilege is not merely based on a generalized interest; and in
balancing respondent Committees and the Presidents clashing interests, the Court did not disregard the
1987 Constitutional provisions on government transparency, accountability and disclosure of
Respondent: (a) between respondent Committees specific and demonstrated
need and the Presidents generalized interest in confidentiality, there is a need
to strike the balance in favor of the former; and (b) in the balancing of interest,
the Court disregarded the provisions of the 1987 Philippine Constitution on
government transparency, accountability and disclosure of information,
specifically, Article III, S7; A II, S 24 and 28; A XI, S 1; A XVI, S 10; A VII, S
20; and A XII, S 9, 21, and 22

(2) WoN communications elicited by the 3 questions are covered by executive privilege
Respondent: not covered by executive privilege because the elements of
the presidential communications privilege are not present
A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential
Respondent: power to secure a foreign loan does not relate to a "quintessential
and non-delegable presidential power," because the Constitution does not vest
it in the President alone, but also in the Monetary Board which is required to
give its prior concurrence and to report to Congress



SC: Presidents claim of executive privilege is not merely founded on her

generalized interest in confidentiality; Executive Secretary Ermita
specified presidential communications privilege in relation to diplomatic
and economic relations with another sovereign nation as the bases for the
o importance of secrecy in matters involving foreign negotiations
o Akbayan v. Aquino: privileged character of diplomatic negotiations
confidential nature
With respect to respondent Committees invocation of constitutional
prescriptions regarding the right of the people to information and public
accountability and transparency, the Court finds nothing in these arguments to
support respondent Committees case
This Court did not rule that the Senate has no power to investigate the NBN
Project in aid of legislation. There is nothing in the assailed Decision that
prohibits respondent Committees from inquiring into the NBN Project. They
could continue the investigation and even call petitioner Neri to testify again.
He himself has repeatedly expressed his willingness to do so.
Our Decision merely excludes from the scope of respondents investigation
the 3 questions that elicit answers covered by executive privilege and rules that
petitioner cannot be compelled to appear before respondents to answer the
said questions.
Constitutional right to information is not absolute. Incidentally, the right
primarily involved here is the right of respondent Committees to obtain
information allegedly in aid of legislation, not the peoples right to public


respondent: information elicited by the questions are necessary in the discharge

of their legislative functions, among them, (a) to consider the 3 pending Senate
Bills, and (b) to curb graft and corruption
The presumption in favor of Presidential communications puts the burden on
the respondent Senate Committees to overturn the presumption by
demonstrating their specific need for the information to be elicited.
Here, there is simply a generalized assertion that the information is
pertinent to the exercise of the power to legislate and a broad and
non-specific reference to pending Senate bills. It is not clear what
matters relating to these bills could not be determined without the
said information sought by the three (3) questions.
Justice Tinga in his Separate Concurring Opinion: If respondents are
operating under the premise that the president and/or her executive
officials have committed wrongdoings that need to be corrected or
prevented from recurring by remedial legislation, the answer to those
three questions will not necessarily bolster or inhibit respondents
from proceeding with such legislation. They could easily presume the
worst of the president in enacting such legislation.
Interestingly, during the Oral Argument before this Court, the counsel for
respondent Committees impliedly admitted that the Senate could still come up
with legislations even without petitioner answering the 3 questions.
Information being elicited is not so critical after all
Senate Select Committee on Presidential Campaign Activities v. Nixon: while factfinding by a legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability than on a precise
reconstruction of past events. Normally, Congress legislates on the basis of
conflicting information provided in its hearings.
SC cannot subscribe to the respondents self-defeating proposition
that without the answers to the 3 questions, the distinguished
members of the respondent Committees cannot intelligently craft
The role of the Legislature is to make laws, not to determine anyones
guilt of a crime or wrongdoing. Our Constitution has not bestowed
upon the Legislature the latter role.
Under our Constitution, it is the Ombudsman who has the duty "to
investigate any act or omission of any public official, employee,

(3) WoN communications elicited by the 3 questions are critical to the exercise of their
functions (NO)
respondent Committees devote an unusually lengthy discussion on the
purported legislative nature of their entire inquiry, as opposed to an oversight
Decision did not pass upon the nature of respondent Committees inquiry into
the NBN Project. Court recognizes respondent Committees power to
investigate the NBN Project in aid of legislation.
presumption of privilege can only be overturned by a showing of compelling
need for disclosure of the information covered by executive privilege
no adequate showing of a compelling need



office or agency when such act or omission appears to be

illegal, unjust, improper, or inefficient."
Curbing graft and corruption is merely an oversight function of


The language of Section 21, Article VI of the Constitution requiring that the
inquiry be conducted in accordance with the duly published rules of
procedure is categorical. It is incumbent upon the Senate to publish the rules
for its legislative inquiries in each Congress or otherwise make the published
rules clearly state that the same shall be effective in subsequent Congresses or
until they are amended or repealed to sufficiently put public on notice.
5) Note that petitioner is an executive official under the direct control and supervision
of the Chief Executive. Why punish petitioner for contempt when he was merely directed by his
superior? Besides, save for the three (3) questions, he was very cooperative during the
September 26, 2007 hearing.
On the part of respondent Committees, this Court observes their haste and
impatience. Instead of ruling on Executive Secretary Ermitas claim of
executive privilege, they curtly dismissed it as unsatisfactory and ordered the
arrest of petitioner.
The same haste and impatience marked the issuance of the contempt order,
despite the absence of the majority of the members of the respondent
Committees, and their subsequent disregard of petitioners motion for
reconsideration alleging the pendency of his petition for certiorari before this

(4) WoN respondent Committees committed GAD in issuing the contempt order (YES)
Respondent Committees insist that they did not commit GAD because
(1) there is no legitimate claim of executive privilege discussed already
(2) they did not violate the requirements laid down in Senate v. Ermita
(3) they issued the contempt order in accordance with their internal Rules
(4) they did not violate the requirement under Art VI, S21 of the Constitution
requiring the publication of their Rules
(5) their issuance of the contempt order is not arbitrary or precipitate.
2) Following Senate v Ermita, petitioners request to be furnished an advance copy of
questions is a reasonable demand that should have been granted by respondent
Committees. Unfortunately, the Subpoena Ad Testificandum made no specific reference
to any pending Senate bill.
3) While it is true that this Court must refrain from reviewing the internal processes of
Congress, as a co-equal branch of government, however, when a constitutional
requirement exists, the Court has the duty to look into Congress compliance therewith.
Section 18 of their Rules requires a vote of majority, but during the
deliberation of the 3 respondent Committees, only 7 Senators were present.
o Committee on Accountability of Public Officers and Investigations - 17
Senators as members
o Committee on National Defense and Security - 18 Senators
o Committee on Trade and Commerce - 9 Senators
Senator Francis Pangilinan stated that any defect in the committee voting had
been cured because two-thirds of the Senators effectively signed for the Senate
in plenary session.
It must be stressed that the Rules are not promulgated for their benefit. More
than anybody else, it is the witness who has the highest stake in the proper
observance of the Rules.
4) There is no debate that the Senate as an institution is "continuing", as it is not
dissolved as an entity with each national election or change in the composition of its
members. However, as reflected in their Rules, in the conduct of its day-to-day business
the Senate of each Congress acts separately and independently of the Senate of the
Congress before it.



Publication as a due process requirement
The Senate of the Tenth Congress adopted the subject "Rules of Procedure
Governing Inquiries in Aid of Legislation" on Aug 21, 1995. It was published in
two newspapers of general circulation.
The Senate of the Thirteenth Congress caused the re-publication of the Rules
of Procedure Governing Inquiries on December 1, 2006 in two newspapers of
general circulation,
There was no amendment made on it since its adoption on Aug 21, 1995; thus, republication was apparently done merely for purposes of public information
and not to give effect to a new or amended Rules of Procedure Governing
The publication of the Rules of Procedure Governing Inquiries on Aug 24,
1995 has satisfied the due process requirement to inform the public of a rule
that would govern them and affect their rights.



Should the Rules of Procedure Governing Inquiries be published by the Senate

of every Congress? no, the senate is a continuing body.
The 1986 Constitutional Commission records show that the nature of the Senate as
a continuing body hinged on the staggering of terms of the Senators.
In McGrain v. Daugherty: U.S. SC held that the Senate as a continuing body.
A Senate committee established in the Sixty-eighth Congress could be "continued
or revived" by motion after such expiration and, if continued or revived, would
have all its original powers.
The Philippine Supreme Court cited McGrain in Arnault v. Nazareno: if we
should hold that the power to punish for contempt terminates upon the
adjournment of the session, the Senate would have to resume the investigation at
the next and succeeding sessions and repeat the contempt proceedings against the
witness until the investigation is completed -- an absurd, unnecessary, and vexatious
procedure, which should be avoided."
It is the staggering of the terms of the 24 Senators and allowing the terms of office
of a portion of the Senate membership to continue into the succeeding Congress
that provides the stability indispensable to an effective government, and makes the
Senate a continuing body.


The current Senate cannot neglect to publish its Rules of Procedure. In the absence
of a published rule of procedure on a matter which is the subject of legislative
inquiry, any action which affects substantial rights of persons would be anathema,
and risks unconstitutionality.
even if its published, the rules does not authorize the legislature to order an
Even granting arguendo that the rules had been published, the Rules of Procedure of
the Senate and the Rules of the Blue Ribbon Committee do not state that
Committees have the power to issue an order of arrest. The rules only authorize
the Committees to detain a witness found guilty of contempt.
Neri was entitled to a ruling on his claim of executive privilege. For initially, both
sides had agreed in open court to allow more exhaustive inquiry in the Senate on
this matter. They did not rule on the claim of executive privilege, but instead
sanctioned Neri for contempt.
on the nature of contempt proceedings
Indirect contempt proceedings partake of the nature of a criminal prosecution;
hence, strict rules that govern criminal prosecutions also apply to a prosecution for
criminal contempt; the accused is to be afforded many of the protections provided
in regular criminal cases; and proceedings under statutes governing them are to be
strictly construed.
The court must exercise the power of contempt judiciously and sparingly with
utmost self-restraint, with the end in view of utilizing the same for correction and
preservation of the dignity of the court, not for retaliation or vindication.

Deference to the legislative department in interpreting its rule-making power

The power of each House of Congress to adopt its own rules of
proceedings under Art VI, Sec 16 of the 1987 Consti is so obvious that the 1986
Constitutional Commission hardly deliberated on the matter.
The Court ought to take a deferential stance in interpreting the rule-making
power of the Senate as a co-equal branch of government, so long as rights of
private parties are not infringed.
The Rules of Procedure Governing Inquiries is akin to the Senate Rules (of
proceeding) in that the former governs the internal workings of the Senate and its
committees, although admittedly different in some respects from the Senate Rules
because it affects rights of parties not members of the Senate and, hence, requires


I fully join CJ Reynato S. Puno in his dissenting opinion.
It was the intent of the Constitutional Commission to preserve the nature of the
Senate as a continuing body to provide an institutional memory in the
legislature. The Senate, therefore, need not re-publish its Rules with every new

rules must be published to comply with the due process requirement
Fr. Joaquin G. Bernas: When, however, the private rights of witnesses in an
investigation are involved, Sec 21 now prescribes that Congress and its committees
must follow the "duly published rules of procedure."
It is indispensable that the Senate Rules of Procedure during the current 14th
Congress must be duly published. The problem is, the rules have not been
published in the Official Gazette or newspaper of general circulation as required
by Taada v. Tuvera.

separate opinion, j. reyes

I. The proper basis of executive privilege in the Neri petition is only PCP;
executive privilege based on diplomacy and foreign relations is not valid for lack
of specificity.



I agree with the ponente that the three questions are covered by the PCP. But I
disagree that they are covered by executive privilege on matters affecting diplomacy
or foreign relations.
PCP pertains to those communications between the Pres and her close
advisors relating to official or state matters.
grounded on the paramount need for candor between the Pres
and her close advisors. It gives the Pres and those assisting her
sufficient freedom to interact without fear of undue public
As long as the subject matter pertains to a communication
between the Pres and her close advisor concerning official or
state matters, the requirement is complied with.
EP are those matters that have a direct bearing on the conduct of our
external affairs with other nations. EP on matters concerning our
diplomatic or foreign relations is akin to state secret privilege which, when
divulged, will unduly impair our external relations with other countries.
a claim of privilege must specify the grounds relied upon by
the claimant.
There is a presumption that every communication between the Pres and her close
advisor pertains to an official or state matter. The burden is on the party seeking
disclosure to prove that the communication is not in an official capacity.
A relatively higher standard of specificity is required for a claim of executive
privilege based on diplomacy or foreign relations. As in state secrets, this type of
executive privilege is content based.
There is no explanation how the contents of the conversation will actually impair
our diplomatic relations. Absent sufficient explanation or specifics, We cannot
assess the validity of the claim of executive privilege.

Executive privilege and crime

The Senate also asserts that executive privilege cannot be used to conceal a
crime (bribery).
It must be stressed that the Senate is conducting the NBN-ZTE investigation only
in aid of legislation. Its main goal is to gain insights on how to better craft
pertinent laws. Its investigation is not, ought not to be, a fishing expedition to
incriminate the Pres or for other purpose.
The Senate is not a prosecutorial agency. That duty belongs to the Ombudsman
and the DOJ. Or the House of Representatives if impeachment is desired.
On the contempt and arrest order - ang order ng pagsuway at pag-aresto
On the second issue, the majority decision invalidated the arrest and contempt
order against Neri:
(a) valid invocation of executive privilege;
(b) lack of publication of the Senate Rules of Procedure;
(c) failure to furnish petitioner Neri with advance list of questions and
proposed statutes which prompted its investigation;
(d) lack of majority vote to cite for contempt; and
(e) arbitrary and precipitate issuance of the contempt order. The first and
the last are interrelated.
I concur with the majority decision but on a single ground: valid invocation of
executive privilege.
A. Because of valid invocation of executive privilege, the Senate order of
contempt and arrest is baseless, hence, invalid.
The Senate erroneously cited Sec Neri for contempt for failing to appear on the
Sep 18 and 20, 2007 hearings. His failure to attend the two hearings is already
a non-issue because he did attend and testified in the Sep 26, 2007 hearing. If the
Senate wanted to cite him for contempt for his absence during the two previous
hearings, it could have done so on Sep 26, 2007, when he testified in the Senate.
The Senate cannot use his absence in the Sep 18 and 20 hearings as basis for citing
Sec Neri in contempt.
Sec Neri correctly invoked PCP. Since he cannot be compelled by the Senate to
divulge part of his conversation with the Pres which included the three questions.
Petitioner, however, may still be compelled by the Senate to testify on other
matters not covered by the PCP.

There are two significant tests for rebutting the qualified presumption of PCP.


The "balancing test" and the "function impairment test" approximate the test
applied by the US SC in Nixon and Cheney. The test must be anchored on two
compelling need for the information covered by the privilege by the body
or agency seeking disclosure.
effect of non-disclosure on the efficient discharge of the constitutional
function of the body or agency seeking the information.
The qualified presumption in favor of PCP was not successfully rebutted.
Senate failed to prove a compelling need for the information covered by
the privilege.
The constitutional function of the Senate to enact laws will not be
substantially impaired if the information covered by the privilege is left

B. The Senate does not need to republish its Rules of Procedure Governing
Inquiries in Aid of Legislation.
The Senate does not cease to be a continuing body merely because only half of its
members continue to the next Congress. To my mind, even a lesser number of



Senators continuing into the next Congress will still make the Senate a continuing
body. The Senate must be viewed as a collective body. It is an institution quite
apart from the Senators composing it.
The provision only requires a "duly published " rule of procedure for inquiries in
aid of legislation. It is silent on republication. Republication is necessary only when
there is an amendment or revision to the rules.


The Senate cannot compel petitioner Neri to answer the three questions subject of
the petition for certiorari or to divulge the contents of his pertinent conversation
with the Pres on the ground of PCP.
I also affirm my position to quash the Senate contempt and arrest order against
petitioner on the ground of valid invocation of PCP, although
(a) it is unnecessary to re-publish Senate Rules of Procedure Governing
Inquiries in Aid of Legislation,
(b) the Senate failure to furnish petitioner with a list of questions
was cured, and
(c) there was a majority vote.

C. The Senate failed to furnish NERI with a list of possible questions and
needed statutes prompting the inquiry. But the lapse was sufficiently cured.
Senate failed to comply with that guideline. It did not furnish Neri an advance list
of the required questions and bills which prompted the NBN-ZTE investigation.
Thus, the Senate committed a procedural error.
I do not think that such procedural lapse per se has a substantial effect on the
resolution of the validity of the Senate contempt and arrest order. The defect is
relatively minor when viewed in light of the serious issues raised in the NBN-ZTE
The procedural lapse was sufficiently cured when petitioner was apprised of the
context of the investigation.
D. There was a majority vote under Sec 18 of the pertinent Senate Rules of
WON the vote to cite a witness for contempt under Sec 18 of the Senate Rules requires
actual physical presence during the Senate investigation; and
The doctrine of separation of powers demands no less than a prudent refusal to
interfere with the internal affairs of the Senate. The issues presented are beyond
this Courts judicial review.
The section merely provides that the Senate may cite a witness in contempt by
"majority vote of all its members." Clearly, as long as the majority vote is garnered,
irrespective of the mode on how it is done, whether by mere signing of the
contempt order or otherwise, the requirement is met.
A majority of the members of the Senate Committees voted to cite petitioner Neri
in contempt.
WON the votes of the ex officio members of Senate Committees should be counted
under Sec 18 of the Senate Rules.
Sec 18 does not distinguish between the votes of permanent and ex officio members.
Interpreting the Sec, the votes of the ex officiomembers of the respective
Committees should be counted in determining the quorum and the required
majority votes. When the law does not distinguish, we must not distinguish.