G.R. No.

L-6898

April 30, 1954

LUIS
MANALANG, petitioner,
vs.
AURELIO QUITORIANO, EMILIANO MORABE, ZOSIMO
G. LINATO, and MOHAMAD DE VENANCIO,respondents.
CONCEPCION, J.:
Petitioner
Luis
Manalang
contests,
by quo
warranto proceedings, the title of the incumbent
Commissioner of the National Employment Service, and
seeks to take possession of said office as the person
allegedly entitled thereto.
The original respondent was Aurelio Quitoriano, who, at the
time of the filing of the petition (August 4, 1953), held said
office, which he assumed on July 1, 1953, by virtue of a
designation made, in his favor, as Acting Commissioner of
the National Employment Service, by the Office of the
President of the Philippines. Subsequently, or on October
22, 1953, petitioner included, as respondents, Emiliano
Morabe, who, on September 11, 1953, was designated
Acting commissioner of National Employment Service, and
Zosimo G. Linato, the Collecting, Disbursing and Property
Officer of said National Employment Service hereinafter
referred to, for the sake of brevity, as the Service in order
to restrain him from paying, to respondent Morabe, the
salary of the Commissioner of said Service. Still later, or on
January 21, 1954, Mohamad de Venancio, who was
designated Acting Commissioner of said Service, and
assumed said office, on January 11 and 13, respectively, of
the same year, was included as respondent.
It appears that, prior to July 1, 1953, and for some time prior
thereto, petitioner, Luis Manalang, was Director of the
Placement Bureau, an office created by Executive Order No.
392, dated December 31, 1950 (46 Off. Gaz., No. 12, pp.
5913, 5920-5921), avowedly pursuant to the powers vested
in the President by Republic Act No. 422. On June 20, 1952,
Republic Act No. 761, entitled "An Act to Provide for the
Organization of a National Employment Service," was
approved and became effective. Section 1 thereof partly
provides:
. . . In order to ensure the best possible
organization of the employment market as an
integral part of the national program for the
achievement and maintenance of maximum

employment and the development and use of

productive resources there is hereby established a
national system of free public employment offices
to be known as the National Employment Service,
hereinafter referred to as the Service. the Service
shall be under the executive supervision and
control of the Department of Labor, and shall have
a chief who shall be known as the Commissioner
of the National employment Service hereinafter
referred to as Commissioner. Said Commissioner
shall be appointed by the President of the
Philippines with the consent of the Commission on
Appointments and shall receive compensation at
the rate of nine thousand pesos per annum. A
Deputy Commissioner shall be appointed by the
President of the Philippines with the consent of the
Commission on Appointments and shall receive
compensation at the rate of seven thousand two
hundred pesos per annum.
On June 1, 1953, the then Secretary of Labor, Jose
Figueras, recommended the appointment of petitioner Luis
Manalang as Commissioner of the Service. On June 29,
1953, respondent Aurelio Quitoriano, then Acting Secretary
of Labor, made a similar recommendation in favor of
Manalang, upon the ground that "he is best qualified" and
"loyal to service and administration." Said Acting Secretary
of Labor even informed Manalang that he would probably be
appointed to the office in question. However, on July 1,
1953, Quitoriano was the one designated, and sworn in, as
Acting Commissioner of the Service. Such designation of
Quitoriano like the subsequent designation, first, of
Emiliano Morabe, and the, of Mohamad de Venancio is
now assailed by Manalang as "illegal" and equivalent to
removal of the petitioner from office without cause.
This pretense can not be sustained. To begin with, petitioner
has never been Commissioner of the National Employment
Service and, hence, he could not have been, and has not
been removed therefrom. Secondly, to remove an officer is
to oust him from office before the expiration of his term. As
removal implies that the office exists after the ouster. Such is
not the case of petitioner herein, for Republic Act No.
761 expressly abolished the Placement Bureau, and, by
implication, the office of director thereof, which, obviously,
cannot exist without said Bureau. By the abolition of the
latter and of said office, the right thereto of its incumbent,
petitioner herein, was necessarily extinguished thereby.
Accordingly, the constitutional mandate to the effect that "no
officer or employee in the civil service shall be removed or

suspended except for cause as provided by law" (Art. XII,

Sec. 4, Phil. Const.), is not in point, for there has been
neither a removal nor a suspension of petitioner Manalang,
but an abolition of his former office of Director of the
Placement Bureau, which, admittedly, is within the power of
Congress to undertake by legislation.
It is argued, however, in petitioner's memorandum, that
. . . there is no abolition but only fading away of
the title Placement Bureau and all its functions are
continued by the National Employment Service
because the two titles cannot co-exist. The
seemingly additional duties were only brought
about by the additional facilities like the district
offices. Employment Service Advisory Councils,
etc.
The question whether or not Republic Act No. 761 abolished
the Placement Bureau is one of legislative intent, about
which there can be no controversy whatsoever, in view of the
explicit declaration in the second paragraph of section 1 of
said Act reading:
Upon the organization of the Service, the existing
Placement Bureau and the existing Employment
Office in the Commission of Social Welfare shall
be abolished, and all the files, records, supplies,
equipment, qualified personnel and unexpended
balances of appropriations of said Bureau and
Commission pertaining to said bureau or office
shall thereupon be transferred to the Service.
(Emphasis supplied.)
Incidentally, this transfer connotes that the National
Employment Service is different and distinct from the
Placement Bureau, for a thing may be transferred only from
one place to another, not to the same place. Had Congress
intended the National Employment Service to be a mere
amplification or enlargement of the Placement Bureau,
Republic Act No. 761 would have directed the retention of
the "qualified personnel" of the latter, not theirtransfer to the
former. Indeed, the Service includes, not only the functions
pertaining to the former Placement Bureau, but also, those
of the former Employment Office in the Commission of
Social Welfare, apart from other powers, not pertaining to
either office, enumerated in section 4 of Republic Act No.
761.

Again, if the absorption by the Service of the duties of the

Placement Bureau, sufficed to justify the conclusion that the
former and the latter are identical, then the Employment
Office in the Commission of Social Welfare, would logically
be entitled to make the same claim. At any rate, any possible
doubt, on this point, is dispelled by the fact that, in his
sponsorship speech, on the bill which later became Republic
Act No. 761, Senator Magalona said:
Como ya he dicho al caballero de Rizal, esta es
una nueva oficina que tiene su esfera de
accion distinta de la de cualquiera de las
divisiones de la Oficina de Trabajo. Ademas, como
he dicho, es muy importante la creacion de esta
oficina, porque con ella se trata de buscar remedio
para esos dos millones de desempleados filipinos
que hay ahora. (Vol. III, Congressional Record,
Senate, No. 56, April 23, 1952; emphasis
supplied.)
It is next urged in petitioner's memorandum "that the item of
National Employment Service Commissioner is not new and
is occupied by the petitioner" and that the petitioner is
entitled to said office "automatically by operation of law," in
view of the above quoted provision of section 1 of Republic
Act No. 761, relative to the transfer to the service of the
"qualified personnel" of the Placement Bureau and of the
Employment Office in the Commission of Social Welfare.
This contention is inconsistent with the very allegations of
petitioner's pleadings. Thus, in paragraph 11 of his petition, it
is alleged "that increasing the item and elaborating the title of
a
civil
servant,
although necessitating
a
new
appointment, does not mean the ousting of the incumbent or
declaring the item vacant." In paragraph 12 of the same
pleading, petitioner averred that "on or about June 25, 1953,
two days before the departure of President Quirino to
Baltimore, petitioner wrote a confidential memorandum to
His Excellency reminding him of the necessity of appointing
anew the petitioner as head of the National Employment
Service."
Having thus admitted and correctly that he needed
a new appointment as Commissioner of the National
Employment Service, it follows that petitioner does not hold
or, in his own words, occupy the latter's item, inasmuch
as the right thereto may be acquired only by appointment.
What is more, Republic Act No. 761 requires specifically that
said appointment be made by the President of the
Philippines 'with the consent of the Commission on

Appointments." How could the President and the

Commission on Appointments perform these acts if the
Director of the Placement Bureau automatically became
Commissioner of the National Employment Service?
Neither may petitioner profit by the provision of the second
paragraph of section 1 of Republic Act No. 761, concerning
the transfer to the Service of the "qualified personnel" of the
Placement Bureau and of the Employment Office in the
Commission of Social Welfare, because:
1. Said transfer shall be affected only "upon the
organization" of the National Employment Service, which
does not take place until after the appointment of, at least,
the commissioner thereof. If the Director of the Placement
Bureau were included in the phrase "qualified personnel"
and, as a consequence, he automatically became
Commissioner of the Service, the latter would have become
organized simultaneously with the approval of Republic Act
No. 761, and the same would not have conditioned the
aforementioned transfer "upon the organization of the
Service," which connotes that the new office would be
established at some future time. Indeed, in common
parlance, the word "personnel" is used generally to refer to
the subordinate officials or clerical employees of an office or
enterprise, not to the managers directors or heads thereof.
2. If "qualified personnel" included the heads of the offices
affected by the establishment of the Service, then it would,
also, include the chief of the Employment Office in the
Commission of Social Welfare, who, following petitioner's
line of argument, would, like petitioner herein, be, also, a
Commissioner of the National Employment Service. The
result would be that we would have either two
commissioners of said Service or a Commission thereof
consisting of two persons instead of a Commissioner
and neither alternative is countenanced by Republic Act No.
761.
3. Congress can not either appoint the Commissioner of the
Service, or impose upon the President the duty to appoint
any particular person to said office. The appointing power is
the exclusive prerogative of the President, upon which no
limitations may be imposed by Congress, except those
resulting from the need of securing the concurrence of the
Commission on Appointments and from the exercise of the
limited legislative power to prescribe the qualifications to a
given appointive office.

Petitioner alleges in paragraph 2 of his petition, which has

been admitted by the respondents:
That he started as clerk in 1918 in the Bureau of
Labor by reason of his civil service second place
eligibility that he was appointed public defender,
In-charge of the Pampanga Agency, in 1937
likewise, as a result of his civil service public
defender eligibility and has successively held the
positions of Chief of Social Improvement Division,
Senior Assistant in the Office of the Secretary of
Labor, Chief of the Wage Claims Division, Attorney
of Labor (In-charge of the Civil Case), Chief of the
Administrative Division, Chief of the labor
Inspection Division and Director of the Placement
Bureau, also under the Department of Labor.
The many years spent by petitioner in the service of the
Government have not escaped the attention of the Court.
For this reason, we have even considered whether or not he
should be held entitled to the position of Deputy
Commissioner of the National Employment Service, which
carries a compensation of P7,200.00 per annum,identical to
that of Director of the Placement Bureau. However, it is our
considered opinion that we can not make said finding, not
only because the office of Deputy Commissioner of the
National Employment Service is beyond the pale of the
issues raised in this proceedings, which are limited to the
position of Commissioner of said Service, but, also, because
the reasons militating against petitioner's claim to the latter
position, apply equally to that of Deputy Commissioner. At
any rate, petitioner's record as a public servant no matter
how impressive it may be as an argument in favor of his
consideration for appointment either as Commissioner or as
Deputy Commissioner of the Service is a matter which
should be addressed to the appointing power in the exercise
of its sound judgment and discretion, and does not suffice to
grant the Court, whose duty is merely to apply the law, the
power to vest in him a legal title which he does not have.
Wherefore, the petition is hereby dismissed and the writ
prayed for denied, without costs.

entitled to be appointed as members of said

Board;

intervene and then filed a petition in intervention, joining the

petitioners in praying for the relief sought by them.

2. Declaring the appointment of the respondent Dr.

Pedro M. Cruz as members of the Board of
Medical Examiners illegal and therefore null and
void and ousting him therefrom and perpetually
prohibiting him (unless appointed in accordance
with law) from exercising the rights and performing
the duties and functions connected therewith.

It appears that, on October 16, 1959, said Council, acting in

conformity with section 13 of Republic Act No. 2382,
otherwise known as The Medical Act of 1959, approved and
submitted to the President a revised list of qualified
physicians, including petitioners herein, for appointment to
the aforementioned Board. The letter of said Council
transmitting the aforementioned list reads as follows:

ON THE SECOND CAUSE OF ACTION:

1. That pending the hearing on the merits of this
case a writ of preliminary injunction be issued
forthwith ex parte ordering the respondent to
cease, desist and refrain from assuming the office
of member of the Board of Medical Examiners and
exercising the rights and performing the duties and
functions connected therewith, particularly to give
or
conduct
the
next
examinations
for
physicians scheduled on or about December 14,
1959, or to take part in any way in the giving or
conducting thereof, and after due hearing to make
said injunction permanent;
2. Ordering the respondent to pay the costs of this
suit.

G.R. No. L-16263

July 26, 1960

DR.
JOSE
CUYEGKENG,
ET
AL., petitioners,
vs.
DR. PEDRO M. CRUZ, as member of Board of Medical
Examiners, respondent.
CONCEPCION, J.:
This quo warranto proceeding was initiated on November 25,
1950. The prayer in the petition, as amended on December
1, 1959, reads:
WHEREFORE, it is respectfully prayed that
judgment be rendered in favor of the petitioners:

Petitioners further pray for such further and other

relief as this Honorable Court "may deem just and
proper under the premises."
By a resolution dated December 3, 1959, this Court denied
the petition for a writ of preliminary injunction.
The petitioners are doctors Jose Cuyegkeng, Pedro N.
Mayuga, Benjamin Roa, Timoteo Alday, Dominador Jacinto,
Alejandro Gaerlan and Rosita Rivera-Ramirez. Their alleged
cause of action is predicated upon the fact that their names
appear in a list of qualified physicians, approved and
submitted, to the President of the Philippines, by the
Executive Council of the Philippine Medical Association of
the Philippines pursuant to the provisions of section 13 of
Republic Act No. 2382, for appointment as members of the
Board of Medical Examiners, and that respondent Dr. Pedro
M. Cruz, whom the President appointed to said board was
not named in said list.

ON THE FIRST OF ACTION:

1. Declaring the petitioners as duly qualified for the
position of member of the Board of Medical
Examiners and that any one of them is legally

Soon after the institution of this case, the officers and

members of said Council of the Philippine Medical
Association, which is said to be an incorporated association
of the medical profession in the Philippines, were allowed to

October
16,
Hon.
Enrique
C.
Assistant
Executive
Office
of
the
Republic
of
the
Malacaang, Manila

1959
Quema
Secretary
President
Philippines

Dear Sir:
In compliance with your request as contained in
your letter of October 15, addressed to the
Executive Council of the Philippine Medical
Association, and pursuant to a decision reached
by the said Council at a special meeting held
yesterday, please be informed that the nominee
who placed 13th in our order of priority for
recommendation as members of the Board of
Medical Examiners, namely, Dr. Rosita RiverRamirez, is now being recommended as No. 12.
With the disqualification of Dr. Dionisio R. Parulan
(No. 11) by virtue of his candidacy to an elective
post, we hereunder enumerate our twelve
recommendees in the modified order:
1.
Dr.
Cesar
Filoteo
2.
Dr.
Jose
Cuyegkeng
3.
Dr.
Edgardo
Caparas
4.
Dr.
Antonio
Guytingco
5.
Dr.
Pedro
N.
Mayuga
6.
Dr.
Benjamin
Roa
7.
Dr.
Jose
Cocjin
8.
Dr.
Timoteo
Alday
9.
Dr.
Dominador
Jacinto
10.
Dr.
Alejandro
Gaerlan
11.
Dr.
Oscar
Chacon
12. Dr. Rosita Rivera-Ramirez
Thank you for your interest on this matter.

Very truly yours,

Respondent alleged in his answer that three(3) of petitioners

herein are, pursuant to section 14 of Republic Act No. 2382,
U. P. not qualified for appointment to the Board for Medical
Examiners, they being members of the professional staff of
certain private medical colleges; that there is no cause of
action againsts him none of the petitioners and intervenors
U. S. T.claim to be entitled to the office in question; that the
aforementioned list, submitted by the executive Council of
the
Philippine
Medical
Association,
is
merely
recommendatory in nature and, as such, not binding upon
the President; that insofar as Section 13 of Republic Act No.
U. S. T.2382 may be construed as limiting the choice of the
President, in a mandatory manner, in the selection of
members of the Board of Medical Examiners, to the list
aforementioned, said legal provision is unconstitutional and
void; and
that inclusion in the list above referred to is not one
Government
Physician
of the qualification prescribed in section 14 of Republic Act
No. 2382 for appointment to said Board.

2. Dr. Oscar Chacon

FOR
THE
EXECUTIVE
S/ALBERTO
Z.
T/ALBERTO Z. ROMUALDEZ, MD.

COUNCIL
ROMUALDEZ

3. Dr. Edgardo Caparas

4. Dr. Jose Cocjin

By a letter of the Assistant Executive Secretary dated

November 18, 1959, said Council was advised that the
President had decided to appoint, as member of the said
Board, Dr. Cesar Filoteo, Dr. Oscar Chacon, Dr. Edgardo
Caparas, Dr. Jose Cocjin, Dr. Antonio Gutyingco and Dr.
Pedro M. Cruz. Said letter as follows:
OFFICE
OF
OF THE PHILIPPINES

THE

5. Dr. Antonio Guytingco

PRESIDENT

Of the twelve(12) names submitted in your abovementioned letter of October 16, 1959, Dr. Antonio
Guytingco and Dr. Alejandro Gaerlan, government
physicians, happen to be both personal physicians
of the President. For this reason, the President
decided on renewing the appointment of Dr. Pedro
M. Cruz, also a government physician, whose term
under the old law would not have expired until
August 7, 1960, were it not for the enactment of
Republic Act No. 2382.

Manila, November 18, 1959

The
Executive
Philippine
Medical
1850 Taft Avenue, Manila

Council
Association

Gentlemen:
The President wishes me to thank you for your
letter of October 16, 1959, submitted a revised list
of recommendees for appointment as members of
the Board of Medical Examiners under the
provisions of Republic Act No. 2382.

Very
truly
(Sgd.) Enrique C. Quema
t/ENRIQUE
C.
Assistant Executive Secretary

After mature deliberation, the President had

decided to appoint in the board two graduated
from the University of the Philippines, two from the
University of Santo Tomas and two government
physicians irrespective of alma mater. The
following were the candidates selected and
appointed by the President:

1. Dr. Cesar Filoteo

The members
Government
Physicianof this Court are split into three (3) groups in
their views on the issues thus raised by the pleadings.
Section 13 of Republic Act No. 2382, upon which the
petitioners and the intervenors rely, provides:

6. Dr. Pedro M. Cruz

U. P.

yours,

QUEMA

The first five (5) persons mentioned in this letter were

included in the list aforementioned, but the name of the last,
namely, that of respondent herein, did not appear in said list.
Petitioner herein, as well as the intervenors, maintain that,
pursuant to section 13 of Republic Act No. 2382, the
President cannot appoint to the Board of Medical Examiners
any person not named in the list submitted by the Executive
Council of the Philippine Medical Association, and that,
accordingly, the aforementioned appointment of respondent
is null and void.

The Board of Medical Examiners, its composition

and duties. The Board of Medical Examiners
shall be composed of six members to be
appointed by the President of the Philippines from
a confidential list of not more than twelve names
approved and submitted by the executive council
of the Philippine Medical Association, after due
consultation with other medical associations,
during the months of April and October of each
year. The chairman of the Board shall be elected
from among themselves by the members at a
meeting called for the purpose. The President of
the Philippines shall fill any vacancy that may
occur during any examination from the list of
names submitted by the Philippine Medical
Association in accordance with the provisions of
this Act.
No examiner shall handle the examination in more
than four subjects or groups of subjects to each
member shall be agreed upon at a meeting called
by the chairman for the purpose. The examination
papers shall be under the custody of the
Commissioner of Civil Service or his duly
authorized representative, and shall be distributed
to each member of the Board who shall correct,
grade, and sign, and submit them to the said
Commissioner within one hundred twenty days
from the date of the termination of the
examinations.

A final meeting of the Board for the deliberation

and approval of the grades shall be called by the
Commissioner of Civil Service immediately after
receipt of the records from the members of the
Board of Medical Examiners. The secretary of the
Board shall submit to the President of the
Philippines for approval the names of the
successful candidates as having been duly
qualified for licensure in alphabetical order, without
stating the ratings obtained by each.
One group of members of this Court is of the opinion that the
provisions of this section are mandatory in character; that,
although Congress may, by law, prescribe the qualifications
for appointment to a public office created by statute, such as
membership of the Board of Medical Examiners, and has
specified the qualifications for eligibility to said Board in
Section 14 of Republic Act No. 2382, reading:
Qualifications of examiners. No person shall be
appointed a member of the Board of Medical
Examiners unless he or she (1) is a natural-born
citizen of the Philippines, (2) is a duly registered
physician in the Philippines, (3) has been in the
practice of medicine for at least ten years, (4) is of
good moral character and of recognized standing
in the medical profession, (5) is not a member of
the faculty of any medical school and has no
pecuniary interest, directly or indirectly, in any
college of medicine or in any institution where any
branch of medicine is taught, at the time of his
appointment: Provided, That of the six members to
be appointed, not more than two shall be
graduates of the same institution and not more
than three shall be government physicians.
inclusion in the list submitted by the Executive Council of the
Philippine Medical Association, in compliance with section 13
of the same Act, is not one of the qualifications enumerated
in said section 14; that by confining the selection of the six
(6) members of the Board of Medical Examiners to the
twelve (12) person included in said list, the framers of the
law have evinced the intent, not merely to prescribe the
qualifications for eligibility to said Board, but, also, to limit
and curtail, and, hence, to reduce and impair the power of
appointment vested in the President by the Constitution,
which authority connotes necessarily a reasonable measure
of freedom, latitude or discretion in the exercise of the power
to choose the appointees (67 C. J. S. 157-158); and that,
consequently, the pertinent portion of section 13 of Republic
Act No. 2382 is unconstitutional and the appointment of
respondent herein lawful and valid.
It may not be amiss to note, in this connection, that none of
the case cited in the memorandum of the intervenors herein
(Marks vs. Frantz [1956] 179 Kan. 638, 298 P 2nd 316;

Railroad et al. vs. Willis [1947] 305 Ky. 224, 203 S. W. 2nd
18; Bradley vs. Board of Zoning Adjustment [1926], 255
Mass. 160, 150 N. E. 892) is in point for the constitutions of
Kansas, Kentucky and Massachusetts contain no provision
identical or analogous to that found in our fundamental law,
vesting in the President all executive powers not conferred
upon others, all explicitly stating that all officers of the
Government whose appointment are not otherwise provided
for in the character of said states shall be appointed by him.
The authority of the chief executive of those states to appoint
the officers involved in said cases springs mostly from
statutes, unlike the President of the Philippines, whose
appointing power emanates from our Constitution.

could continue giving his undivided attention to the health of

the President. Hence, the latter had to look for another
government physician for appointment to the Board. In this
connection, it should be noted that respondent's professional
competency for the post he now holds is not disputed. In
fact, he had been a member of said Board twice before.
What is more, when the questioned appointment was
extended to him, on November 18, 1959, respondent was a
member of said Board, and his term as such would have
expired on August 7, 1960, had it not been for the approval
of Republic Act No. 2383 on June 20, 1959. the President
made, therefore, said appointment, which, the members is
sanctioned by section 15 of Republic Act No. 2382, reading:

Another group adheres to the view that said portion of

section 13 of Republic Act No. 2382 is merely directory in
nature. Indeed, in their respective pleadings, the petitioners,
as well as the intervenors, refer to the persons named in the
list aforementioned as "recommendees". They are identically
referred to in the communication transmitting said list to the
President of the Philippines, which communication is, in turn,
described in said pleadings as a letter of "recommendation".
By their very acts therefore, the intervenors have clearly
expressed the belief, which was shared by the President,
that the function of the former under said section 13 is purely
recommendatory. Needless to say, a "recommendation", as
such, implies merely an advice, exhortation or indorsement,
which is essentially persuasive in character, not binding
upon the party to whom it is made. The members of the
Court constituting this group feel, therefore, that, although
section 13 of Republic Act No. 2382 is constitutional,
respondent herein has a valid title to his office as member of
the Board of Medical Examiners.

Tenure of office and compensation of members.

The members of the Board of Medical Examiners
shall hold office for one year: Provided, That any
member may be reappointed for not more than
more year. Each member shall receive as
compensation ten pesos for each candidate
examined for registration as physician, and five
pesos for each candidate examined in the
preliminary or final physician examination.

The third group, which is bigger than any of the two (2)
groups already adverted to, deems it unnecessary, either to
inquire into the constitutionality of said section 13, or to
determine whether the same is mandatory or directory, for
the reasons presently to be stated.
The letter to the Executive Council of the Philippine Medical
Association dated November 18, 1959, informing the
Association of the action taken by the President, states that
he "had decided to appoint in the Board two graduates from
the University of the Philippines, two government physicians
irrespective of alma mater". The list submitted by the
Executive Council of the Philippine Medical Association
included two (2) government physicians, namely, Dr. Antonio
Guytingco and Dr. Alejandro Gaerlan, both of whom were
"personal physicians of the President". Believing, perhaps,
that their appointment to the Board may either deprive him
completely of the benefits of their professional services, or
impair the quality or usefulness thereof, or that a choice in
favor of his two (2) personal doctors, as representatives of
the government physicians in said Board, may smack of, or
be misconstrued as, an act of nepotism, it was deemed best
to appoint to the Board only one of them so that the other

The President of the Philippines, upon the

recommendation of the Commissioner of Civil
Service, after due investigation, may remove any
member of the Board of Medical Examiners for
neglect of duty, incompetency, or unprofessional or
dishonorable conduct.
The members of said group opine that it is not absolutely
necessary that the person reappointed under this provision
be included in the list mentioned in section 13 of Republic
Act No. 2382, for, in case of conflict between two (2)
provisions of the same statute, the last in order of position is
frequently held to prevail (82 C. J. S. 718), unless it clearly
appears that the intent of congress is otherwise, and no such
intent is patent in the case at bar. Furthermore, the purpose
of section 13, in requiring the favorable indorsement of the
Philippine Medical Association, evidently, to reasonably
assure that the members of the Board of Medical Examiners
are among the best in their profession, and one who has
already held, or who still holds a position in said Board, is
presumed to belong to such class, in the absence of proof to
the contrary. There is not even the slightest suggestion that
respondent does into live up to the standard required for
membership in said Board.
In conclusion, although none of the groups already adverted
to have sufficient votes to constitute the requisite majority,
the members of this Court are unanimous in the opinion that
respondent herein has a good and valid title to his office.
Lastly, this is a a quo warranto proceeding, which, pursuant
to Rule 68 of the Rules of Court, may be brought either by

the Government or by a private individual. Not every

individual may, however, initiate the proceedings. Section 6
of said Rule provides:
When an individual may commence such an
action. A person claiming to be entitled to a
public office usurped or unlawfully held or
exercised by another may bring an action therefor
in his own name.
Thus, one who does not claim to be entitled to the
office allegedly usurped or unlawfully held or exercised by
another cannot question his title thereto by quo warranto. In
the case at bar, petitioners do not claim to entitled to the
office held by respondent herein. None of them has been
appointed thereto and none of them may, therefore, be
placed in said office, regardless of the alleged flaws in
respondent's title thereto. They merely assert a right to be
appointed to said office. Considering, however, that there are
seven (7) petitioners and that only one (1) office is involved
in this case, none of them can, or does, give an assurance
that he will be the one appointed by the President, should
said office be declared vacant. In short, the claim of each
petitioner is predicated solely upon a more or less recipient
of the appointment. It is obvious, therefore, that none of
them has a cause of action against respondent herein
(Acosta vs. Flor, 5 Phil., 18, 22; Lino Luna vs. Rodriguez, 36
Phil., 401; Neuno vs. Angeles, 76 Phil., 12).
Upon the other hand, the petition in intervention is
predicated upon the right of the intervenors to submit a list
ofrecommendees for appointment to the Board of Medical
Examiners. Such right does not entitle the intervenors, under
the above provision of Rule 68, to question the title of
respondent herein. Hence, the petition for quo warranto has
no leg to stand on.
Wherefore, the writ prayed for should be, as it is hereby,
denied, with costs against the petitioners. It is so ordered.

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO
T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and
MANUEL
P.
REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and
RICHARD J. GORDON, respondents.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A.
7227, 1 otherwise known as the "Bases Conversion and
Development Act of 1992," under which respondent Mayor
Richard J. Gordon of Olongapo City was appointed
Chairman and Chief Executive Officer of the Subic Bay
Metropolitan Authority (SBMA), is challenged in this original
petition with prayer for prohibition, preliminary injunction and
temporary restraining order "to prevent useless and
unnecessary expenditures of public funds by way of salaries
and other operational expenses attached to the
office . . . ." 2 Paragraph (d) reads
(d) Chairman administrator The
President shall appoint a professional
manager as administrator of the Subic
Authority with a compensation to be
determined by the Board subject to the
approval of the Secretary of Budget,
who shall be the ex oficio chairman of
the Board and who shall serve as the
chief executive officer of the Subic
Authority: Provided, however, That for
the first year of its operations from the
effectivity of this Act, the mayor of the
City of Olongapo shall be appointed as
the chairman and chief executive officer
of the Subic Authority (emphasis
supplied).
Petitioners, who claim to be taxpayers, employees of the
U.S. Facility at the Subic, Zambales, and officers and
members of the Filipino Civilian Employees Association in
U.S. Facilities in the Philippines, maintain that theproviso in
par. (d) of Sec. 13 herein-above quoted in italics infringes on
the following constitutional and statutory provisions: (a) Sec.
7, first par., Art. IX-B, of the Constitution, which states that
"[n]o elective official shall be eligible for appointment or
designation in any capacity to any public officer or position

during his tenure," 3 because the City Mayor of Olongapo

City is an elective official and the subject posts are public
offices; (b) Sec. 16, Art. VII, of the Constitution, which
provides that "[t]he President shall . . . . appoint all other
officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be
authorized by law to appoint", 4 since it was Congress
through the questioned proviso and not the President who
appointed the Mayor to the subject posts; 5 and, (c) Sec.
261, par. (g), of the Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. The
following shall be guilty of an election
offense: . . . (g) Appointment of new
employees, creation of new position,
promotion, or giving salary increases.
During the period of forty-five days
before a regular election and thirty days
before a special election, (1) any head,
official or appointing officer of a
government
office,
agency
or
instrumentality, whether national or
local, including government-owned or
controlled corporations, who appoints or
hires any new employee, whether
provisional, temporary or casual, or
creates and fills any new position,
except upon prior authority of the
Commission. The Commission shall not
grant the authority sought unless it is
satisfied that the position to be filled is
essential to the proper functioning of the
office or agency concerned, and that the
position shall not be filled in a manner
that may influence the election. As an
exception to the foregoing provisions, a
new employee may be appointed in
case of urgent need:Provided, however,
That notice of the appointment shall be
given to the Commission within three
days from the date of the appointment.
Any appointment or hiring in violation of
this provision shall be null and void. (2)
Any government official who promotes,
or gives any increase of salary or
remuneration or privilege to any
government official or employee,
including those in government-owned or
controlled corporations . . . .
for the reason that the appointment of respondent Gordon to
the subject posts made by respondent Executive Secretary
on 3 April 1992 was within the prohibited 45-day period prior
to the 11 May 1992 Elections.
The principal question is whether the proviso in Sec. 13, par.
(d), of R.A. 7227 which states, "Provided, however,That for

the first year of its operations from the effectivity of this Act,
the mayor of the City of Olongapo shall be appointed as the
chairman and chief executive officer of the Subic Authority,"
violates the constitutional proscription against appointment
or designation of elective officials to other government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for
appointment or designation in any
capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by
the primary functions of his position, no
appointive official shall hold any other
office or employment in the Government
or
any
subdivision,
agency
or
instrumentality
thereof,
including
government-owned
or
controlled
corporations or their subsidiaries.
The section expresses the policy against the concentration
of several public positions in one person, so that a public
officer or employee may serve full-time with dedication and
thus be efficient in the delivery of public services. It is an
affirmation that a public office is a full-time job. Hence, a
public officer or employee, like the head of an executive
department described in Civil Liberties Union v. Executive
Secretary, G.R. No. 83896, and Anti-Graft League of the
Philippines, Inc. v. Philip Ella C. Juico, as Secretary of
Agrarian Reform, G.R. No. 83815, 6 ". . . . should be allowed
to attend to his duties and responsibilities without the
distraction of other governmental duties or employment. He
should be precluded from dissipating his efforts, attention
and energy among too many positions of responsibility,
which may result in haphazardness and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he
basic idea really is to prevent a situation where a local
elective official will work for his appointment in an executive
position in government, and thus neglect his constituents . . .
." 7
In the case before us, the subject proviso directs the
President to appoint an elective official, i.e., the Mayor of
Olongapo City, to other government posts (as Chairman of
the Board and Chief Executive Officer of SBMA). Since this
is precisely what the constitutional proscription seeks to
prevent, it needs no stretching of the imagination to conclude
that the proviso contravenes Sec. 7, first par., Art. IX-B, of
the Constitution. Here, the fact that the expertise of an
elective official may be most beneficial to the higher interest
of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code

(LGC) permits the appointment of a local elective official to
another post if so allowed by law or by the primary functions
of his office. 8 But, the contention is fallacious. Section 94 of
the LGC is not determinative of the constitutionality of Sec.
13, par. (d), of R.A. 7227, for no legislative act can prevail
over the fundamental law of the land. Moreover, since the
constitutionality of Sec. 94 of LGC is not the issue here nor
is that section sought to be declared unconstitutional, we
need not rule on its validity. Neither can we invoke a practice
otherwise unconstitutional as authority for its validity.
In any case, the view that an elective official may be
appointed to another post if allowed by law or by the primary
functions of his office, ignores the clear-cut difference in the
wording of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph
authorizes holding of multiple offices by an appointiveofficial
when allowed by law or by the primary functions of his
position, the first paragraph appears to be more stringent by
not providing any exception to the rule against appointment
or designation of an elective official to the government post,
except as are particularly recognized in the Constitution
itself, e.g., the President as head of the economic and
planning agency; 9 the Vice-President, who may be
appointed Member of the Cabinet; 10 and, a member of
Congress who may be designated ex officio member of the
Judicial and Bar Council. 11
The distinction between the first and second paragraphs of
Sec. 7, Art. IX-B, was not accidental when drawn, and not
without reason. It was purposely sought by the drafters of
the Constitution as shown in their deliberation, thus
MR. MONSOD. In other words, what
then Commissioner is saying, Mr.
Presiding Officer, is that the prohibition
is more strict with respect to elective
officials, because in the case of
appointive officials, there may be a law
that will allow them to hold other
positions.
MR. FOZ. Yes, I suggest we make that
difference, because in the case of
appointive officials, there will be certain
situations where the law should allow
them to hold some other positions. 12
The distinction being clear, the exemption allowed to
appointive officials in the second paragraph cannot be
extended to elective officials who are governed by the first
paragraph.

It is further argued that the SBMA posts are merely ex

officio to the position of Mayor of Olongapo City, hence, an
excepted circumstance, citing Civil Liberties Union v.
Executive Secretary, 13 where we stated that the prohibition
against the holding of any other office or employment by the
President, Vice-President, Members of the Cabinet, and their
deputies or assistants during their tenure, as provided in
Sec. 13, Art. VII, of the Constitution, does not comprehend
additional duties and functions required by the primary
functions of the officials concerned, who are to perform them
in an ex officio capacity as provided by law, without receiving
any additional compensation therefor.
This argument is apparently based on a wrong premise.
Congress did not contemplate making the subject SBMA
posts as ex officio or automatically attached to the Office of
the Mayor of Olongapo City without need of appointment.
The phrase "shall be appointed" unquestionably shows the
intent to make the SBMA posts appointive and not merely
adjunct to the post of Mayor of Olongapo City. Had it been
the legislative intent to make the subject positions ex officio,
Congress would have, at least, avoided the word "appointed"
and, instead, "ex officio" would have been used. 14
Even in the Senate deliberations, the Senators were fully
aware that subject proviso may contravene Sec. 7, first par.,
Art. IX-B, but they nevertheless passed the bill and decided
to have the controversy resolved by the courts. Indeed, the
Senators would not have been concerned with the effects of
Sec. 7, first par., had they considered the SBMA posts as ex
officio.
Cognizant of the complication that may arise from the way
the subject proviso was stated, Senator Rene Saguisag
remarked that "if the Conference Committee just said "the
Mayor shall be the Chairman" then that should foreclose the
issue. It is a legislative choice." 15 The Senator took a view
that the constitutional proscription against appointment of
elective officials may have been sidestepped if Congress
attached the SBMA posts to the Mayor of Olongapo City
instead of directing the President to appoint him to the post.
Without passing upon this view of Senator Saguisag, it
suffices to state that Congress intended the posts to be
appointive, thus nibbling in the bud the argument that they
are ex officio.
The analogy with the position of Chairman of the Metro
Manila Authority made by respondents cannot be applied to
uphold the constitutionality of the challenged proviso since it
is not put in issue in the present case. In the same vein, the
argument that if no elective official may be appointed or
designated to another post then Sec. 8, Art. IX-B, of the
Constitution
allowing
him
to
receive
double
compensation 16 would be useless, is non sequitur since
Sec. 8 does not affect the constitutionality of the
subject proviso. In any case, the Vice-President for example,

an elective official who may be appointed to a cabinet post

under Sec. 3, Art. VII, may receive the compensation
attached to the cabinet position if specifically authorized by
law.
Petitioners also assail the legislative encroachment on the
appointing authority of the President. Section 13, par. (d),
itself vests in the President the power to appoint the
Chairman of the Board and the Chief Executive Officer of
SBMA, although he really has no choice under the law but to
appoint the Mayor of Olongapo City.
As may be defined, an "appointment" is "[t]he designation of
a person, by the person or persons having authority therefor,
to discharge the duties of some office or trust," 17 or "[t]he
selection or designation of a person, by the person or
persons having authority therefor, to fill an office or public
function and discharge the duties of the same. 18 In his
treatise, Philippine
Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines
appointment as "the selection, by the authority vested with
the power, of an individual who is to exercise the functions of
a given office."
Considering that appointment calls for a selection, the
appointing power necessarily exercises a discretion.
According to Woodbury, J., 20 "the choice of a person to fill
an office constitutes the essence of his appointment," 21 and
Mr. Justice Malcolm adds that an "[a]ppointment to office is
intrinsically an executive act involving the exercise of
discretion." 22 In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court 23 we held:
The power to appoint is, in essence,
discretionary. The appointing power has
the right of choice which he may
exercise freely according to his
judgment, deciding for himself who is
best qualified among those who have
the
necessary
qualifications
and
eligibilities. It is a prerogative of the
appointing power . . . .
Indeed, the power of choice is the heart of the power to
appoint. Appointment involves an exercise of discretion of
whom to appoint; it is not a ministerial act of issuing
appointment papers to the appointee. In other words, the
choice of the appointee is a fundamental component of the
appointing power.
Hence, when Congress clothes the President with the power
to appoint an officer, it (Congress) cannot at the same time
limit the choice of the President to only one candidate. Once
the power of appointment is conferred on the President,
such conferment necessarily carries the discretion of whom

to appoint. Even on the pretext of prescribing the

qualifications of the officer, Congress may not abuse such
power as to divest the appointing authority, directly or
indirectly, of his discretion to pick his own choice.
Consequently, when the qualifications prescribed by
Congress can only be met by one individual, such enactment
effectively eliminates the discretion of the appointing power
to choose and constitutes an irregular restriction on the
power of appointment. 24
In the case at bar, while Congress willed that the subject
posts be filled with a presidential appointee for the first year
of its operations from the effectivity of R.A. 7227,
the proviso nevertheless limits the appointing authority to
only one eligible, i.e., the incumbent Mayor of Olongapo City.
Since only one can qualify for the posts in question, the
President is precluded from exercising his discretion to
choose whom to appoint. Such supposed power of
appointment, sans the essential element of choice, is no
power at all and goes against the very nature itself of
appointment.
While it may be viewed that the proviso merely sets the
qualifications of the officer during the first year of operations
of SBMA, i.e., he must be the Mayor of Olongapo City, it is
manifestly an abuse of congressional authority to prescribe
qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on
the President is a perfectly valid legislative act,
the proviso limiting his choice to one is certainly an
encroachment on his prerogative.
Since the ineligibility of an elective official for appointment
remains all throughout his tenure or during his incumbency,
he may however resign first from his elective post to cast off
the constitutionally-attached disqualification before he may
be considered fit for appointment. The deliberation in the
Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line
8, I propose the substitution of the word
"term" with TENURE.
MR. FOZ. The effect of the proposed
amendment is to make possible for one
to resign from his position.
MR. DAVIDE. Yes, we should allow that
prerogative.
MR. FOZ. Resign from his position to
accept an executive position.

MR. DAVIDE. Besides, it may turn out in

a given case that because of, say,
incapacity, he may leave the service, but
if he is prohibited from being appointed
within the term for which he was
elected, we may be depriving the
government of the needed expertise of
an individual. 25
Consequently, as long as he is an incumbent, an elective
official remains ineligible for appointment to another public
office.
Where, as in the case of respondent Gordon, an incumbent
elective official was, notwithstanding his ineligibility,
appointed to other government posts, he does not
automatically forfeit his elective office nor remove his
ineligibility imposed by the Constitution. On the contrary,
since an incumbent elective official is not eligible to the
appointive position, his appointment or designation thereto
cannot be valid in view of his disqualification or lack of
eligibility. This provision should not be confused with Sec.
13, Art. VI, of the Constitution where "(n)o Senator or
Member of the House of Representatives may hold any
other office or employment in the Government . . . during his
term without forfeiting his seat . . . ." The difference between
the two provisions is significant in the sense that incumbent
national legislators lose their elective posts only after they
have been appointed to another government office, while
other incumbent elective officials must first resign their posts
before they can be appointed, thus running the risk of losing
the elective post as well as not being appointed to the other
post. It is therefore clear that ineligibility is not directly related
with forfeiture of office. ". . . . The effect is quite different
where it is expressly provided by law that a person holding
one office shall be ineligible to another. Such a provision is
held to incapacitate the incumbent of an office from
accepting or holding a second office (State ex rel. Van
Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams
v Neal, 130 Ga 733, 61 SE 721) and to render his election or
appointment to the latter office void (State ex rel. Childs v
Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945)
or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40
ALR 941)." 26 "Where the constitution, or statutes declare
that persons holding one office shall be ineligible for election
or appointment to another office, either generally or of a
certain kind, the prohibition has been held to incapacitate the
incumbent of the first office to hold the second so that any
attempt to hold the second is void (Ala. State ex rel. Van
Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27
As incumbent elective official, respondent Gordon is
ineligible for appointment to the position of Chairman of the
Board and Chief Executive of SBMA; hence, his appointment
thereto pursuant to a legislative act that contravenes the
Constitution cannot be sustained. He however remains
Mayor of Olongapo City, and his acts as SBMA official are

not necessarily null and void; he may be considered a de

facto officer, "one whose acts, though not those of a lawful
officer, the law, upon principles of policy and justice, will hold
valid so far as they involve the interest of the public and third
persons, where the duties of the office were exercised . . . .
under color of a known election or appointment, void
because the officer was not eligible, or because there was a
want of power in the electing or appointing body, or by
reason of some defect or irregularity in its exercise, such
ineligibility, want of power or defect being unknown to the
public . . . . [or] under color of an election, or appointment,
by or pursuant to a public unconstitutional law, before the
same is adjudged to be such (State vs. Carroll, 38 Conn.,
499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec.,
213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep.,
323)." 28
Conformably with our ruling in Civil Liberties Union, any and
all per diems, allowances and other emoluments which may
have been received by respondent Gordon pursuant to his
appointment may be retained by him.
The illegality of his appointment to the SBMA posts being
now evident, other matters affecting the legality of the
questioned proviso as well as the appointment of said
respondent made pursuant thereto need no longer be
discussed.
In thus concluding as we do, we can only share the lament
of Sen. Sotero Laurel which he expressed in the floor
deliberations of S.B. 1648, precursor of R.A. 7227, when he
articulated
. . . . (much) as we would like to have
the present Mayor of Olongapo City as
the Chief Executive of this Authority that
we are creating; (much) as I, myself,
would like to because I know the
capacity,
integrity,
industry
and
dedication of Mayor Gordon; (much) as
we would like to give him this terrific,
burdensome and heavy responsibility,
we cannot do it because of the
constitutional prohibition which is very
clear. It says: "No elective official shall
be appointed or designated to another
position in any capacity." 29
For, indeed, "a Constitution must be firm and immovable, like
a mountain amidst the strife of storms or a rock in the ocean
amidst the raging of the waves." 30 One of the
characteristics of the Constitution is permanence, i.e., "its
capacity to resist capricious or whimsical change dictated
not by legitimate needs but only by passing fancies,
temporary passions or occasional infatuations of the people
with ideas or personalities . . . . Such a Constitution is not

likely to be easily tampered with to suit political expediency,

personal ambitions or ill-advised agitation for change." 31
Ergo, under the Constitution, Mayor Gordon has a choice.
We have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227,
which states: ". . . Provided, however, That for the first year
of its operations from the effectivity of this Act, the Mayor of
the City of Olongapo shall be appointed as the chairman and
chief executive officer of the Subic Authority," is declared
unconstitutional; consequently, the appointment pursuant
thereto of the Mayor of Olongapo City, respondent Richard J.
Gordon, is INVALID, hence NULL and VOID.
However, all per diems, allowances and other emoluments
received by respondent Gordon, if any, as such Chairman
and Chief Executive Officer may be retained by him, and all
acts otherwise legitimate done by him in the exercise of his
authority as officer de facto of SBMA are hereby UPHELD.
SO ORDERED.

The petitioner bases his claim on the following

communication addressed to him by the Minister of Tourism
on April 7, 1986:
MEMORANDUM TO: MR. RAMON P.
BINAMIRA
You are hereby designated General
Manager of the Philippine Tourism
Authority, effective immediately.
By virtue hereof, you may qualify and
enter upon the performance of the
duties of the office.

It appearing from the records you have

submitted to this Office that the present
General Manager of the Philippine
Tourism Authority was designated not by
the President, as required by P.D. No.
564, as amended, but only by the
Secretary of Tourism, such designation
is invalid. Accordingly, you are hereby
designated concurrently as General
Manager, effective immediately, until I
can appoint a person to serve in the
said office in a permanent capacity.
Please be guided accordingly.
(Sgd.) CORAZON C. AQUINO

(Sgd.) JOSE ANTONIO GONZALES

Minister of Tourism and Chairman,
P.T.A. Board
Pursuant thereto, the petitioner assumed office on the same
date.
On April 10, 1986, Minister Gonzales sought approval from
President Aquino of the composition of the Board of
Directors of the PTA, which included Binamira as ViceChairman in his capacity as General Manager. This approval
was given by the President on the same date. 1
Binamira claims that since assuming office, he had
discharged the duties of PTA General Manager and ViceChairman of its Board of Directors and had been
acknowledged as such by various government offices,
including the Office of the President.

G.R. No. 92008 July 30, 1990

RAMON
P.
BINAMIRA, petitioner,
vs.
PETER D. GARRUCHO, JR., respondent.
CRUZ, J.:
In this petition for quo warranto, Ramon P. Binamira seeks
reinstatement to the office of General Manager of the
Philippine Tourism Authority from which he claims to have
been removed without just cause in violation of his security
of tenure.

He complains, though, that on January 2, 1990, his

resignation was demanded by respondent Garrucho as the
new Secretary of Tourism. Binamira's demurrer led to an
unpleasant exchange that led to his filing of a complaint
against the Secretary with the Commission on Human
Rights. But that is another matter that does not concern us
here.
What does is that on January 4, 1990, President Aquino sent
respondent Garrucho the following memorandum, 2copy
furnished Binamira:
4 January 1990
MEMORANDUM TO: Hon. Peter D.
Garrucho, Jr.. Secretary of Tourism

cc: Mr. Ramon P. Binamira Philippine

Tourism Authority Manila
Garrucho having taken over as General Manager of the PTA
in accordance with this memorandum, the petitioner filed this
action against him to question his title. Subsequently, while
his original petition was pending, Binamira filed a
supplemental petition alleging that on April 6, 1990, the
President of the Philippines appointed Jose A. Capistrano as
General Manager of the Philippine Tourism Authority.
Capistrano was impleaded as additional respondent.
The issue presented in this case is starkly simple.
Section 23-A of P.D. 564, which created the Philippine
Tourism Authority, provides as follows:
SECTION 23-A. General ManagerAppointment and Tenure. The
General Manager shall be appointed by
the President of the Philippines and
shall serve for a term of six (6) years
unless
sooner
removed
for
cause; Provided,
That
upon
the
expiration of his term, he shall serve as
such until his successor shall have been
appointed and qualified. (As amended
by P.D. 1400)
It is not disputed that the petitioner was not appointed by the
President of the Philippines but only designated by the
Minister of Tourism. There is a clear distinction between
appointment and designation that the petitioner has failed to
consider.
Appointment may be defined as the selection, by the
authority vested with the power, of an individual who is to

exercise the functions of a given office. 3 When completed,

usually with its confirmation, the appointment results in
security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office.
Designation, on the other hand, connotes merely the
imposition by law of additional duties on an incumbent
official, 4 as where, in the case before us, the Secretary of
Tourism is designated Chairman of the Board of Directors of
the Philippine Tourism Authority, or where, under the
Constitution, three Justices of the Supreme Court are
designated by the Chief Justice to sit in the Electoral
Tribunal of the Senate or the House of Representatives. 5 It
is said that appointment is essentially executive while
designation is legislative in nature.
Designation may also be loosely defined as an appointment
because it likewise involves the naming of a particular
person to a specified public office. That is the common
understanding of the term. However, where the person is
merely designated and not appointed, the implication is that
he shall hold the office only in a temporary capacity and may
be replaced at will by the appointing authority. In this sense,
the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the
person named.
Even if so understood, that is, as an appointment, the
designation of the petitioner cannot sustain his claim that he
has been illegally removed. The reason is that the decree
clearly provides that the appointment of the General
Manager of the Philippine Tourism Authority shall be made
by the President of the Philippines, not by any other officer.
Appointment involves the exercise of discretion, which
because of its nature cannot be delegated. Legally speaking,
it was not possible for Minister Gonzales to assume the
exercise of that discretion as an alter ego of the President.
The appointment (or designation) of the petitioner was not a
merely mechanical or ministerial act that could be validly
performed by a subordinate even if he happened as in this
case to be a member of the Cabinet.
An officer to whom a discretion is
entrusted cannot delegate it to another,
the presumption being that he was
chosen because he was deemed fit and
competent to exercise that judgment
and discretion, and unless the power to
substitute another in his place has been
given to him, he cannot delegate his
duties to another. 6
In those cases in which the proper
execution of the office requires, on the
part of the officer, the exercise of
judgment or discretion, the presumption
is that he was chosen because he was

deemed fit and competent to exercise

that judgment and discretion, and,
unless power to substitute another in his
place has been given to him, he cannot
delegate his duties to another. 7
Indeed, even on the assumption that the power conferred on
the President could be validly exercised by the Secretary, we
still cannot accept that the act of the latter, as an extension
or "projection" of the personality of the President, made
irreversible the petitioner's title to the position in question.
The petitioner's conclusion that Minister Gonzales's act was
in effect the act of President Aquino is based only on half the
doctrine he vigorously invokes. Justice Laurel stated that
doctrine clearly in the landmark case of Villena v. Secretary
of the Interior, 8where he described the relationship of the
President of the Philippines and the members of the Cabinet
as follows:
... all executive and administrative
organizations are adjuncts of the
Executive Department, the heads of the
various executive departments are
assistants and agents of the Chief
Executive, and, except in cases where
the Chief Executive is required by the
Constitution or the law to act in person
or the exigencies of the situation
demand that he act personally, the
multifarious
executive
and
administrative functions of the Chief
Executive are performed by and through
the executive departments, and the acts
of the secretaries of such departments,
performed and promulgated in the
regular course of business, are, unless
disapproved or reprobated by the Chief
Executive, presumptively the acts of the
Chief Executive.
The doctrine presumes the acts of the Department Head to
be the acts of the President of the Philippines when
"performed and promulgated in the regular course of
business," which was true of the designation made by
Minister Gonzales in favor of the petitioner. But it also adds
that such acts shall be considered valid only if not
'disapproved or reprobated by the Chief Executive," as also
happened in the case at bar.
The argument that the designation made by Minister
Gonzales was approved by President Aquino through her
approval of the composition of the Board of Directors of the
PTA is not persuasive. It must be remembered that Binamira
was included therein as Vice- Chairman only because of his
designation as PTA General Manager by Minister Gonzales.
Such designation being merely provisional, it could be

recalled at will, as in fact it was recalled by the President

herself, through the memorandum she addressed to
Secretary Garrucho on January 4, 1990.
With these rulings, the petitioner's claim of security of tenure
must perforce fall to the ground. His designation being an
unlawful encroachment on a presidential prerogative, he did
not acquire valid title thereunder to the position in question.
Even if it be assumed that it could be and was authorized,
the designation signified merely a temporary or acting
appointment that could be legally withdrawn at pleasure, as
in fact it was (albeit for a different reason).itc-asl In either
case, the petitioner's claim of security of tenure must be
rejected.
The Court sympathizes with the petitioner, who apparently
believed in good faith that he was being extended a
permanent appointment by the Minister of Tourism. After all,
Minister Gonzales had the ostensible authority to do so at
the time the designation was made. This belief seemed
strengthened when President Aquino later approved the
composition of the PTA Board of Directors where the
petitioner was designated Vice-Chairman because of his
position as General Manager of the PTA. However, such
circumstances fall short of the categorical appointment
required to be made by the President herself, and not the
Minister of Tourism, under Sec. 23 of P.D. No. 564. We must
rule therefore that the petitioner never acquired valid title to
the disputed position and so has no right to be reinstated as
General Manager of the Philippine Tourism Authority.
WHEREFORE, the petition is DISMISSED, with costs
against the petitioner. It is so ordered.

theory that, as the incumbent deputy chief of police and

therefore the officer next in rank, the petitioner is legally
entitled to be promoted to the said position.
Upon the death of Col. Mariano Tumaliuan on August 28,
1968, the position of chief of police of Pasay City became
vacant. To fill the vacancy, Claudio appointed the respondent
Francisco Villa, a state prosecutor in the Department of
Justice, but the respondent Commissioner of Civil Service
Abelardo Subido held the appointment in abeyance until
other persons who, in Subido's opinion, had preferential right
to appointment have been considered. One of these persons
is Pineda who, as deputy chief of police, "is a person next in
rank entitled to promotional preference for the position of
Chief of Police ... before others may be considered (for)
transfer, reinstatement, reemployment or certification."
Subido defined his stand in his letter to Mayor Claudio of
September 17, 1968, the text of which reads:
Sir:
This refers to the proposed appointment
of Mr. FRANCISCO A. VILLA, a Bar (RA
1080) and second grade eligible, as
Chief of Police in the Police Department
of Pasay City at P12,000 per annum
effective September 1, 1968, vice
Mariano Tumaliuan, deceased.
Section 4 of Republic Act No. 5185
(Decentralization Act of 1967) in its
paragraphs 4 and 5 provides:

G.R. No. L-29661

May 13, 1969

BASILIO M. PINEDA, as Deputy Chief of Police of Pasay

City, petitioner,
vs.
JOVITO O. CLAUDIO, as Mayor of Pasay City;
FRANCISCO A. VILLA and ABELARDO SUBIDO, as
Commissioner of Civil Service, respondents.

In cases of vacancies in the offices of heads and

assistant heads of local offices, the governor or
mayor shall fill them by appointment from a list of
the five next ranking eligible and qualified persons
as certified by the Civil Service Commission:
Provided, That these five persons shall have
stated beforehand that they will assume the
position, if appointed. (paragraph 4)
The ranking shall be based on such factors as
class of province, city or municipality where the
vacancy occurs, seniority, efficiency rating,
extraordinary
qualifications,
and
other
supplementary criteria as may be prescribed by
the Civil Service Commission.lawphil.et

CASTRO, J.:
Paragraph 3, Section 23 of Rep. Act 2260, also provides:
This is a petition for mandamus to compel the respondent
Jovito O. Claudio, mayor of Pasay City, to appoint the
petitioner Basilio M. Pineda chief of police of the city, on the

Whenever a vacancy occurs in any competitive or

classified position in the government or in any

government-owned or controlled corporation or

entity, the officer or employee next in rank who is
competent and qualified to hold the position and
who possesses an appropriate civil service
eligibility shall be promoted thereto: Provided, That
should there be two or more persons under equal
circumstances, seniority shall be given preference.
And provided, however, That should there be any
special reason or reasons why such officer or
employee should not be promoted, such special
reason or reasons shall be stated in writing by the
appointing official and the officer or employee
concerned shall be informed thereof and be given
an opportunity to be heard by the Commissioner of
Civil Service, whose decision in such cases shall
be final. If the vacancy is not filled by promotion as
provided herein, then the same shall be filled by
transfer of present employees in the government
service, by reinstatement, by reemployment of
persons separated through reduction in force, or
by certification from appropriate register of
eligibles in accordance with rules promulgated in
pursuance of this Act.
Interpreting this latter provision in the case of Millares vs.
Subido, et al., G.R. No. L-23281, August 10, 1967, the
Honorable Supreme Court ruled: 'In other words, a vacant
position (be it new or created by the cessation of an
incumbent in office), shall be filled by promotion of the
ranking officer or employee, who is competent and qualified
to hold the same. And only where, for special reason or
reasons of which the affected officer or employee will be
notified, this mode of recruitment or selection cannot be
observed, that the position may be filled either by transfer, or
reemployment, or by getting from the certified list of
appropriate eligibles, in that order.' (Emphasis by the Court).
The above-quoted provisions and Supreme Court ruling spell
out categorically the priorities in the modes of filling a
vacancy in the competitive service, to wit: first priority is by
promotion of next in rank employees from within the agency,
second is by transfer of employees in other agencies, third is
by reinstatement and reemployment of former employees,
and last by certification from the appropriate eligible lists.
Conformably with these provisions and ruling, this Office
announced in the Manila Times of September 5, 1968, the
mode of filling vacancies for Chief of Police for Manila and
Pasay City and the qualifications of those who may
apply.1awphil.et A Xerox copy of the clippings of the Manila
Times is hereto attached as Annex 'A'. The said
announcement was also the subject of a news item
published in the same issue of the Manila Times, a copy
attached as Annex

As of this writing, the following persons, in the order of

priority, are hereby certified for the said position:

contained in the said communication has not been complied

with.

therein or incorporated in the implementing rules

and regulations.

A. Promotion (next-in-rank)

If Mr. Pineda may not be considered, the special reason or

reasons therefor must be stated in writing and submitted to
this Office. The same procedure should also be followed if
Messrs. Dizon, Mondares and Valencia may not be
considered for the said position before Messrs. Siquijor,
Tesoro and Villa may be considered for appointment thereto.

4. As regards the chief of police, there is even

another provision which serves to underscore this
special rule. I refer to the last paragraph of Section
10, supra, which states that in case there is no
civil service eligible available for the position of
chief of police, "provisional appointment may be
made in accordance with the Civil Service Law
and Rules." It is implicit in this provision that in
other cases, especially those covered by section
17, the appointment shall be permanent in nature
and "as provided for in this (Police) Act."

1. Basilio Pineda formerly chief of police of the Pasay City

Police Department, a chief of police eligible, and presently
Deputy Chief of Police of the Pasay City Police Department.
B. Transfer
1. Major Jesus Dizon a Xerox copy of his curriculum vitae
is attached.
2. Albino S. Mondares a Xerox copy of his curriculum
vitae is attached.
C. Reinstatement/Reemployment
1. Jaime Valencia formerly chief of police of Pasay City
Police Department whose appointment was bypassed. His
information sheet is on file in that Office.
D. Certification
1. Roland C. Siquijor (Chief of Police eligible.)
2. Abelardo Tesoro (Chief of Police eligible.)
3. Francisco Villa the proposed appointee.
It is significant to note in this connection that Mr. Basilio
Pineda, who is presently the Deputy Chief of Police of Pasay
City, a Chief of Police eligible and formerly the Chief of
Police of Pasay City, is a person next in rank entitled to
promotional preference for the position of Chief of Police.
Under the law and Supreme Court ruling above cited, Mr.
Pineda should be considered for promotion before others
may
be
considered
by
transfer,
reinstatement,
reemployment, or certification.
As a matter of fact this Office in a letter dated August 5,
1968, and reiterated in a 1st endorsement dated August 28,
1968, has previously directed that Office to consider Mr.
Pineda for designation as the Acting Chief of Police in place
of Mr. Francisco Grape, who does not possess the
appropriate eligibility and who is holding on to the position of
Deputy Chief of Police by virtue of a preliminary writ of
injunction issued by the CFI of Rizal. Information is
requested as to the reason why the directive of this Office

Premises considered, the processing of the proposed

appointment of Mr. Francisco Villa is held in abeyance until
after the persons with appointment preference have been
duly considered by that Office, and for special reason or
reasons, could not be appointed Chief of Police. In the
meantime, the directive of the Office contained in the letter
dated August 5, 1968 should be complied with by that Office.

On September 30, 1968 the Secretary of Justice, to whom

the matter had earlier been referred, submitted a
memorandum to the President substantially to the effect that
section 23 of the Civil Service Act of 1959 does not apply in
the case of the chief of a police agency whose appointment,
it was contended, is governed by the Police Act of 1966.
Pertinent excerpts from the said memorandum are
hereunder quoted:

5. ... [A]side from the provision (of section 11)

specifically forbidding the filling of any position by
permanent appointment unless the appointee has
the appropriate eligibility, there appears to be no
other statutory limitation on the City Mayor's
discretion in the selection of the chief of police so
long as the one chosen possesses the minimum
qualifications prescribed by the Act. The Police
Manual has included the civil service rule on
promotion which gives the next-in-rank, among
others, preference in the filling of the vacant
position. However, upon close examination of Rule
VI, it is readily seen that the promotional rules
therein set forth find application only to the filling of
positions in the police service below that of chief of
police he being the one charged with the duty and
responsibility of screening and recommending for
promotion the deserving members of the police
agency (sections 2, 3, 4, 5 and 6). Of course, in
every case the next-in-rank or deputy chief, by
reason of his position, would surely be among the
first to be considered by the City Mayor in the
selection of the chief of police, if qualified and
competent; but he cannot claim any preferential
right over others in the list of eligibles based on
the aforementioned rule found in the Civil Service
Act.

3. Under the Police Act, ... it is specifically

provided (in section 17) that in case of permanent
vacancy caused by death, etc., in a local police
agency, "the mayor shall fill such vacancy as
provided in this Act" and not in accordance with
the Civil Service Act and rules and regulations.
Congress is presumed to be aware of certain rules
or limitations in the general civil service law which
operate to restrict or curtail the discretion of the
appointing power; hence, this special rule which
makes it indubitable that the general rules
governing appointment in the civil service, are
inapplicable to appointments in a police service,
except of course, where it so expressly provided

6. This was the legal situation at the time of the

enactment of the Decentralization Law (RA 5185,
approved on September 12, 1967). I am unable to
see any substantial change resulting from the
insertion in section 4 thereof, quoted supra, of the
provision that the heads of offices and their
respective assistants, whose salaries are paid out
of city funds, shall be appointed by the City Mayor
"subject to the civil case law, rules and
regulations." Obviously, this clause refers to office
heads whose appointments, unlike that of the chief
of police, are not covered by any special law or
provision and should therefore be appointed in
accordance with the general civil service law and

In reply, Claudio for the first time disclosed his reasons for
not appointing Pineda to the vacant position. In his letter to
Subido on September 20, he explained: .
As a native of Pasay and having been an official
hereof for the past eight (8) years I am fully
cognizant of the performance in office of Messrs.
Basilio Pineda, Jaime Valencia, Roland C. Siquijor
and Abelardo Tesoro and they cannot boast of any
improvement they have introduced to lift the
sagging inefficiency of the local police
organization. The actual members of untrained
and undisciplined men still persist.

rules ... What is more important and far reaching in

Section 4 is the provision which categorically
states that the offices of the aforementioned heads
and assistant heads 'shall be filled by appointment
from a list of five next ranking eligible and qualified
persons as certified by the Civil Service
Commissioner," which shall be based on such
factors as class of the city where the vacancy
occurs, seniority, efficiency rating, extra-ordinary
qualifications, etc. The import of this special
provision is that the filling of the positions of the
office heads and assistant heads is to be
governed by this special rule, unencumbered by
the civil service rule on the preferential right of the
next-in-rank and others seeking transfer,
reinstatement or reemployment in order to give the
City Mayor a wide latitude in the choice of key
officials. ...
Answering the memorandum of the Secretary of Justice,
Subido contended in his own memorandum to the President
of October 14, 1968 that section 23 of the Civil Service Act
does not conflict with the provisions of the Police Act of
1966. "In fact, it was incorporated verbatim in the Police
Manual. But what is important is that the filling of positions in
the police service including that of Chief of Police in
accordance with the procedure outlined in paragraph 3 of
Sec. 23 of Republic Act 2260 in relation to Sec. 4 of the
Decentralization Act (Rep. Act 5185) would strengthen the
police service. Vice versa, leaving the matter of promotion
solely to the discretion of the Mayor without regard to the
order of priorities contained in the Civil Service Law, would
result in its demoralization."
Nor did he think the mayor's reasons for bypassing Pineda to
be valid, considering that just a few months before the mayor
had appointed Pineda deputy chief of police. "If Mr. Pineda
can qualify as Deputy Chief of Police in the Mayor's
estimation (and thus under Sec. 17 of the Police Act, he shall
automatically assume the office of Chief of Police in case a
temporary vacancy occurs in said office), how can Mayor
Claudio now claim in all sincerity that Mr. Pineda is not
qualified to be chief of Police?"
Respondents Claudio and Villa point out, on the other hand,
that Subido should be held in estoppel on the basis of his
approval of the very appointment of Pineda as deputy chief
of police of Pasay City, where no list of those with
"preferential rights" and no inquiry as to the mayor's reasons
for not appointing the police officer next-in-rank in the Pasay
City police department was made; and that advising the
mayor that "the filling of the vacancy for Deputy Chief of
Police is governed by Section 4, R.A. 5185," Subido merely
issued a certification, containing the names of "five ranking
qualified and eligible persons" including Pineda, and
evidently did not consider as applicable the provisions on

preferences of Section 23 of the Civil Service Act nor the

ruling in Millares v. Subido 1now invoked by him.

Supervisors, Principals, Provincial Treasurers,

Provincial Health Officers and District Engineers.

Subido admitted in his reply that Memorandum Circular No.

1, S. 1968, dated January 12, 1968, under which he issued
"priorities," "overlooked the Millares case and relied solely on
the provision of Sec. 4, Rep. Act 5185," but averred that
later, after having become convinced that the Millares ruling
was applicable to the filling of vacancies of heads and
assistant heads of local offices under the Decentralization
Law, he issued Memorandum Circular No. 21, S. 1968,
dated September 5, 1968, providing for such procedure of
priorities, which was the procedure in force as of the date the
appointment of Villa was received in his office.

The City Assessor, City Agriculturist, City Chief of

Police and City Chief of Fire Department and other
heads of offices entirely paid out of city funds and
their respective assistants or deputies shall,
subject to civil service law, rules and regulations,
be appointed by the City Mayor: Provided,
however, That this section shall not apply to
Judges, Auditors, Fiscals, City Superintendents of
Schools, Supervisors, Principals, City Treasurers,
City Health Officers and City Engineers.
xxx

As no solution to the impasse was in sight, Pineda filed the

present action, contending that, under section 23 of the Civil
Service Act, as interpreted in Millares, in relation to Section 4
of the Decentralization Act, it is the duty of the mayor to
promote him as the ranking employee, and that only if for
some "special reasons" he cannot be promoted may others
be considered for transfer, reemployment or certification, "in
that order".
On the other hand, Claudio's position is that what controls is
not section 23 of the Civil Service Act but section 8 of the
Police Act of 1966, which states that a chief of police may be
appointed "from the list of eligibles certified by the Civil
Service Commissioner". As Villa is one of these certified,
Claudio concludes that his appointment as chief of police is
in order.
Section 17 of the Police Act of 1966 expressly provides that
"In case of vacancy caused by death, retirement,
resignation, suspension or removal in a local police agency,
the mayor shall fill such vacancy as provided for in this Act,"
obviously referring to Section 8 thereof will states that
"appointment to a local police agency shall be made by a
mayor from the list of eligibles certified by the Civil Service
Commission." The validity of Villa's appointment, because he
is one of those mentioned in the certified list of eligibles, as
required by the Police Act of 1966, could be here and now
sustained, without need of further discussion, were it not for
the subsequent enactment in 1967 of the Decentralization
Act, particularly, Section 4 thereof, which provides:
Appointment of Heads, Assistant Heads of Local
Offices and Their Subordinates. The Provincial
Assessor, Provincial Agriculturist and other heads
of offices entirely paid out of provincial funds and
their respective assistants shall, subject to civil
service law, rules and regulations, be appointed by
the Provincial Governor: Provided, however, That
this section shall not apply to Judges, Auditors,
Fiscals, Division Superintendents of Schools,

xxx

xxx

In case of vacancies in the offices of heads and

assistant heads of local offices, the governor or
mayor shall fill them by appointing from a list of the
five next ranking eligible and qualified persons as
certified
by
the
Civil
Service
Commissioner: Provided, That these five persons
shall have stated beforehand that they will assume
the position if appointed.
The ranking shall be based on such factors as
class of province, city or municipality where the
vacancy occurs, seniority, efficiency rating,
extraordinary
qualifications
and
other
supplementary criteria as may be prescribed by
the Civil Service Commission. (R.A. 5185)
The pertinent provisions thereof to the effect that the heads
of offices entirely paid out of city funds, including the chiefs
of police, and their assistants or deputies, shall, "subject to
civil service law, rules and regulations, be appointed by the
City Mayor" and that the mayor "shall fill them by
appointment from a list of the five next ranking eligible and
qualified persons as certified by the Civil Service
Commissioner," throw us right back to the basic Civil Service
Act. It behooves us, specifically, to determine the scope and
meaning of the provisions of Section 23 which deal with the
"Recruitment and Selection of Employees."
The contending parties have thus thrust upon this Court the
basic issue of the proper application and scope of Section 23
of the Civil Service Act in relation to the provisions of the
Decentralization Act of 1967 and the Police Act of 1966.
The petitioner states the issues as follows:
(1) Is it mandatory and ministerial upon the Mayor
of Pasay City to promote to the vacant position of
Chief of Police, a competitive position, petitioner

Pineda, the incumbent Deputy Chief of Police,

who is the competent and qualified next-in-rank
employee with the appropriate civil service
eligibility?
(2) Is respondent Mayor's appointment of
respondent Villa to the said classified position of
Chief of Police null and void, considering that he is
an outsider, he is not next-in-rank employee and
he has not passed the Civil Service examination
for Chief of Police?
The respondents Claudio and Villa formulate the issues,
thus:
(1) Is the appointment of the Chief of Police of
Pasay City to be regulated by Section 8 of the
Police Act of 1966, or by Section 4 of the
Decentralization Act and the third paragraph of
Section 23 of the Civil Service Law?
(2) If the appointment of the Chief of Police of
Pasay City is subject to the provisions of section 4
of the Decentralization Act, is it mandatory that
respondent Mayor appoint Petitioner to the
position?
The respondent Subido, in his Answer, "submits the matter
to the judicious consideration of this Honorable Court,"
emphasizing the urgency of the resolution of the legal issues
presented, "considering that the questioned appointment of
respondent Francisco A. Villa would be the first appointment
under the Decentralization Act and any decision thereon
would guide the future action of the Civil Service
Commission and other offices concerned in the application
of said law."
The first two paragraphs of Section 23 of the Civil Service
Act (the third paragraph we have already reproduced
above, supra), read together with Section 1 of Article XII of
the Philippine Constitution which directs that "[A]ppointments
in the Civil Service ... shall be made only according to merit
and fitness, to be determined as far as practicable by
competitive examinations," provide the key for the proper
application and interpretation of the "next-in-rank" rule
enunciated in the third paragraph of said Sec. 23. These first
two paragraphs set the guide norm that:
SEC.
23. Recruitment
and
Selection
of
Employees. Opportunity for government
employment shall be open to all qualified citizens
and positive efforts shall be exerted to attract the
best qualified to enter the service.

Employees shall be selected on the basis of their

fitness to perform the duties and assume the
responsibilities of the positions whether in the
competitive or classified or in the non-competitive
or unclassified service. (Emphasis supplied)

anyone else, who is primarily responsible for efficient

governmental administration in the locality and the effective
maintenance of peace and order therein, and is directly
answerable to the people who elected him. Nowhere is this
more true than in the sensitive area of police administration.

The granting of equal opportunity for government

employment to all qualified citizens and the exertion of
positive efforts to attract the best qualified to enter the
service may be implemented effectively only through the
judicious exercise of the best judgment and discretion of the
appointing authority.

True it is that in Millares, 3 this Court, referring to section 23

of the Civil Service Act, made the following statement:

Resolving the issue squarely presented, we hold that it is

neither mandatory nor ministerial for the mayor of Pasay City
to promote to the vacant position of chief of police the
incumbent deputy chief of police Pineda, and that the
appointment to said position of the respondent Villa, who has
been certified as qualified and eligible, although an
"outsider" and not the next-in-rank employee, is valid, in the
same manner that the appointment of Pineda, although an
"outsider" and not the next-in-rank, to the position of deputy
chief of police was valid.
The Civil Service Act does not peremptorily require the
mayor to promote the officer next in rank. Section 23 thereof
does not require that vacancies must be filled by promotion,
transfer, reinstatement, reemployment or certification, in that
order. That would be to construe the provision not merely as
a legislative prescription of qualifications but as a legislative
appointment, repugnant to the Constitution. What it does
purport to say is that as far as practicable the person next in
rank should be promoted, otherwise the vacancy may be
filled by transfer, reinstatement, reemployment or
certification, as the appointing power sees fit, provided the
appointee is certified to be qualified and eligible which is
the basic requirement of the Civil Service Act, as well as of
the Police Act and the Decentralization Law.
To construe section 23 the way the petitioner urges it should
be, would be to unduly interfere with the power and
prerogatives of the local executive as reinforced by the
Decentralization Act at the same time that it would frustrate
the policy of the Police Act "to achieve and attain a higher
degree of efficiency in the organization, administration, and
operation of local police agencies" 2 and that of the Civil
Service Act "to attract the best qualified to enter the service."
For it is not enough that an aspirant is qualified and eligible
or that he is next in rank or line for promotion, albeit by
passive prescription. It is just as necessary, in order for
public administration to be dynamic and responsive to the
needs of the times, that the local executive be local the
choice of men of his confidence, provided they are qualified
and eligible, who in his best estimation are possessed of the
requisite reputation, integrity, knowledgeability, energy and
judgment. After all, it is the local executive, more than

In other words, a vacant position (be it new or

created by the cessation of an incumbent in office)
shall be filed by promotion of the ranking officer or
employee, who is competent and qualified to hold
the same. And only where, for special reason or
reasons of which the affected officer or employee
will be notified, this mode of recruitment or
selection cannot be observed, that the position
may be filled either by transfer, or reemployment,
or by getting from the certified list of appropriate
eligibles, in that order.
But that statement was not necessary, considering that, in
the language of the decision itself, "no evidence was
presented that there were ranking employees in the office of
the City Mayor affected by the appointment of appellee to
the position involved herein." There was therefore no
occasion for the application of section 23 to that case.
Here, the question is squarely presented, 4 and we now rule
that the principle of seniority and the next-in-rank rule
embodied in section 23, with its corollary requirement to set
forth the "special reason or reasons" in case the officer next
in rank is not appointed to the vacant position, applies only
to cases of promotion. Hence, where the appointing power
chooses to fill the vacancy not by promotion but by transfer,
reinstatement, reemployment or certification (not necessarily
in that order, as we have already said) he is under no duty
whatsoever to explain his action, for the law does not so
require him. The reason for this distinction is simple. When a
person who is a junior jumps over his senior, the ranking is
disturbed and the person next in rank is actually bypassed,
and so it is reasonable to require the appointing power to
give his "special reason or reasons" for preferring his
appointee to the officer next-in-rank. But where the vacancy
is filled not by promotion but by transfer, the person next-inrank is not really bypassed because the person appointed is
one who holds a position of equivalent rank as the vacant
position. To the appointee, the new position is hardly a
higher one. As this Court correctly observed in Millares, in
distinguishing promotion from transfer, "whereas the first
denotes a scalar ascent of a senior officer or employee to
another position, higher either in rank or salary, the second
refers to a lateral movement from one position to another of
equivalent rank, level or salary." 5

The same reasoning applies when the person chosen to fill

the vacancy is merely being reinstated to, or reemployed in,
the position which he formerly held. For it is obvious that in
this case such person is the senior of the one who at the
moment is next in rank. As for the person chosen by
certification, it may be said that he has never been rated
before and so he can be said neither to be below nor above
the ranking employee in the hierarchy.

case, Subido's action of questioning respondent Claudio's

sincerity in not appointing petitioner to the vacant position of
chief of police when he had appointed him (Pineda) as
deputy chief of police just a few months before, projects the
pitfalls of such a theory which would in some cases permit
unauthorized interference by the Commissioner of Civil
Service with the appointing authority's free exercise of his
judgment and prerogative of free choice.

It may be added that there is no valid or cogent reason to

consider it mandatory and ministerial that the filling of
vacancies be by promotion, transfer, reinstatement or reemployment, and certification, in that order. There is no legal
fiat that those next in rank for promotion are more fit and
meritorious for appointment than those moved by transfer
from another unit or department, and that those applying for
transfer should have "preference" to those seeking
reinstatement, and the latter in turn to those who are duly
certified eligibles. From the perspective of practical
experience, it cannot be doubted that some next-in-rank
officers or employees have risen to their seniority slots
through mere passivity. And as a matter of policy, those who
have previously resigned to avoid investigation of
involvement in irregularities in office should certainly not be
allowed to invoke "preference" when they subsequently seek
reinstatement or reemployment. The only way to determine
such fitness would be to hold a competitive examination
among all applicants every time a vacancy occurs, which
would be completely disruptive of the public service. Our
Constitution recognized this and hence provided that
appointments be made according to merit and fitness, to be
determined only as far as practicable by competitive
examination. Hence, our system of qualification through
periodic appropriate examinations. Among those qualified
and eligible, the appointing authority is granted the discretion
and prerogative of choice of the one he deems most fit for
appointment.

Of course, where there is unequivocally demonstrated an

arbitrary and improvident exercise of the power of the
appointing authority, as will constitute a denial of due
process of law, to paraphrase the Court's ruling in Morrero v.
Bocar, 6 such as where the qualifications, merit, experience
and competence of an official next in rank for promotion are
widely disparate over those of the actual appointee, proper
remedy through judicial review would be available. For due
process recognizes the free exercise by the executive of his
prerogatives under the Constitution and the laws but rules
out arbitrariness and oppression. 7

This is not to say that seniority and rank are of no

consequence. The Civil Service Act does direct, as we
construe it, that as far as practicable the next in rank should
be among the first considered for the vacancy, if qualified
and eligible, and requires that when the vacancy is filled by
promotion, the appointing authority must give the "special
reason or reasons" for by passing the next-in-rank. But such
official cannot claim any preferential right to appointment to
the vacancy over others equally certified to be qualified and
eligible for appointment by transfer, reinstatement or
reemployment, or by appropriate certification, just as those
applying for transfer cannot claim preference over those
seeking reinstatement, etc., nor subject the appointing
authority's reasons for his choice to final review and decision
by the Civil Service Commissioner. To so hold as the
petitioner and the respondent Commissioner contend, would
be to invalidly substitute the judgment of the Commissioner
of Civil Service for that of the appointing authority, in whom
the prerogative of free choice resides. More, in the present

We do not of course lose sight of the fact that Section 4 of

the Decentralization Act of 1967 does provide that
In cases of vacancies in the offices of heads and
assistant heads of local offices, the governor or
mayor shall fill them by appointment from a list of
the five next ranking eligible and qualified persons
as certified by the Civil Service Commission. ...
Reading this provision in the light of the Civil Service Act, the
meaning emerges that in each class the Commissioner must
certify, whenever there are available, five ranking, qualified
and eligible persons. Thus, the Commissioner whenever
practicable and possible, must certify five qualified and
eligible persons for each area, i.e., five such persons for
promotion, five such persons for transfer, and so on. And this
has been properly implemented by the respondent
Commissioner in his last Memorandum Circular No. 21, S. of
1968, dated September 5, 1968, where he announced that
his office would certify not more than five eligibles and
qualified persons in each list as follows: "(a) promotion list;
(b) transfer list; (c) reinstatement/reemployment list; and (d)
list of appropriate eligibles," 8 although he erroneously
assigned priority thereto in that order, whereas we have
above ruled that there is no such order of priority amongst
the four said areas.
We, therefore, hold that in the event of there occurring a
vacancy, the officer next in rank must, as far as practicable
and as the appointing authority sees fit in his best judgment
and estimation, be promoted, otherwise the vacancy may be
filled either by transfer, reinstatement, reemployment or
certification not necessarily in that order and that it is
only in cases of promotion, where an employee other than
the ranking one is appointed, is the appointing power under

duty to give "special reason or reasons" for his action to the

Civil Service Commissioner, as provided in Section 23, third
paragraph, of the Civil Service Act.
As there is no question that the respondent Villa has been
certified to be qualified and eligible, it is well within the ambit
of the power of the respondent Claudio to appoint him chief
of police of Pasay City. Consequently, the respondent
Claudio owes the petitioner no duty to extend to him a
promotional appointment, the performance of which may be
compelled by mandamus.
ACCORDINGLY, the petition for mandamus is
without pronouncement as to costs.

denied,

The ultimate question posed before this Court in these

twin cases is: Who should be declared the rightful governor
of Sorsogon
(i) Juan G. Frivaldo, who unquestionably obtained the highest
number of votes in three successive elections but who was twice
declared by this Court to be disqualified to hold such office due to
his alien citizenship, and who now claims to have re-assumed his
lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but
who claims that the votes cast in favor of Frivaldo should be
considered void; that the electorate should be deemed to have
intentionally thrown away their ballots; and that legally, he secured
the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously
was not voted directly to the position of governor, but who
according to prevailing jurisprudence should take over the said
post inasmuch as, by the ineligibility of Frivaldo, a "permanent
vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new
doctrines on repatriation, clarifies/reiterates/amplifies
existing jurisprudence on citizenship and elections, and
upholds the superiority of substantial justice over pure
legalisms.
G.R. No. 123755.
This is a special civil action under Rules 65 and 58 of
the Rules of Court for certiorari and preliminary injunction to
review and annul a Resolution of the respondent
Commission
on
Elections
(Comelec),
First
Division,1 promulgated on December 19,19952 and another
Resolution of the Comelec en bane promulgated February
23, 19963 denying petitioner's motion for reconsideration.

The Facts

[G.R. No. 120295. June 28, 1996]

JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON
ELECTIONS, and RAUL R. LEE, respondents.
[G.R. No. 123755. June 28, 1996]
RAUL
R.
LEE, petitioner,
vs. COMMISSION
ON
ELECTIONS
and
JUAN
G.
FRIVALDO, respondents.
DECISION
PANGANIBAN, J.:

On March 20, 1995, private respondent Juan G.

Frivaldo filed his Certificate of Candidacy for the office of
Governor of Sorsogon in the May 8, 1995 elections.
On March 23, 1995, petitioner Raul R. Lee, another
candidate, filed a petition4 with the Comelec docketed as
SPA No. 95-028 praying that Frivaldo "be disqualified from
seeking or holding any public office or position by reason of
not yet being a citizen of the Philippines," and that his
Certificate of Candidacy be cancelled. On May 1, 1995, the
Second Division of the Comelec promulgated a
Resolution5 granting the petition with the following
disposition:6

"WHEREFORE, this Division resolves to GRANT the petition and

declares that respondent is DISQUALIFIED to run for the Office
of Governor of Sorsogon on the ground that he is NOT a citizen of
the Philippines. Accordingly, respondent's certificate of candidacy
is cancelled."
The Motion for Reconsideration filed by Frivaldo
remained unacted upon until after the May 8, 1995 elections.
So, his candidacy continued and he was voted for during the
elections held on said date. On May 11, 1995, the
Comelec en banc7affirmed the aforementioned Resolution of
the Second Division.
The Provincial Board of Canvassers completed the
canvass of the election returns and a Certificate of
Votes8.dated May 27, 1995 was issued showing the
following votes obtained by the candidates for the position of
Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
RaulR.Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a
(supplemental) petition9 praying for his proclamation as the
duly-elected Governor of Sorsogon.
In an order10 dated June 21, 1995, but promulgated
according to the petition "only on June 29, 1995," the
Comelec en bane directed "the Provincial Board of
Canvassers of Sorsogon to reconvene for the purpose of
proclaiming candidate Raul Lee as the winning gubernatorial
candidate in the province of Sorsogon on June 29,1995 x x
x." Accordingly, at 8:30 in the evening of June 30,1995, Lee
was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new
petition,11 docketed as SPC No. 95-317, praying for the
annulment of the June 30, 1995 proclamation of Lee and for
his own proclamation. He alleged that on June 30, 1995,
at 2:00 in the afternoon, he took his oath of allegiance as a
citizen of the Philippines after "his petition for repatriation
under P.D. 725 which he filed with the Special Committee on
Naturalization in September 1994 had been granted." As
such, when "the said order (dated June 21, 1995) (of the
Comelec) x x x was released and received by Frivaldo on
June 30, 1995 at 5:30 o'clock in the evening, there was no
more legal impediment to the proclamation (of Frivaldo) as
governor x x x." In the alternative, he averred that pursuant
to the two cases of Labo vs. Comelec,12 the Vice-Governor
not Lee should occupy said position of governor.

On December 19, 1995, the Comelec First Division

promulgated the herein assailed Resolution13 holding that
Lee, "not having garnered the highest number of votes," was
not legally entitled to be proclaimed as duly-elected
governor; and that Frivaldo, "having garnered the highest
number of votes, and xxx having reacquired his Filipino
citizenship by repatriation on June 30, 1995 under the
provisions of Presidential Decree No. 725 xxx (is) qualified to
hold the office of governor of Sorsogon"; thus:
"PREMISES CONSIDERED, the Commission (First Division),
therefore RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the
proclamation of Raul R. Lee as Governor of Sorsogon is hereby
ordered annulled, being contrary to law, he not having garnered the
highest number of votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R.
Lee, the Provincial Board of Canvassers is directed to immediately
reconvene and, on the basis of the completed canvass, proclaim
petitioner Juan G. Frivaldo as the duly elected Governor of
Sorsogon having garnered the highest number of votes, and he
having reacquired his Filipino citizenship by repatriation on June
30,1995 under the provisions of Presidential Decree No. 725 and,
thus, qualified to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code
(B.P. Blg. 881), the Clerk of the Commission is directed to notify
His Excellency the President of the Philippines, and the Secretary
of the Sangguniang Panlalawigan of the Province of Sorsogon of
this resolution immediately upon the due implementation thereof."
On December 26,1995, Lee filed a motion for reconsideration
which was denied by the Comelec en banc in its
Resolution14 promulgated on February 23, 1996. On February 26,
1996, the present petition was filed. Acting on the prayer for a
temporary restraining order, this Court issued on February 27,
1996 a Resolution which inter alia directed the parties "to maintain
the status quo prevailing prior to the filing of this petition."

Second- The judicially declared disqualification of respondent was

a continuing condition and rendered him ineligible to run for, to be
elected to and to hold the Office of Governor;

the Comelec had no jurisdiction to issue said Resolutions

because they were not rendered "within the period allowed
by law," i.e., "not later than fifteen days before the election."

Third - The alleged repatriation of respondent was neither valid nor

is the effect thereof retroactive as to cure his ineligibility and
qualify him to hold the Office of Governor; and

Otherwise stated, Frivaldo contends that the failure of

the Comelec to act on the petition for disqualification within
the period of fifteen days prior to the election as provided by
law is a jurisdictional defect which renders the said
Resolutions null and void.

Fourth - Correctly read and applied, the Labo Doctrine fully

supports the validity of petitioner's proclamation as duly elected
Governor of Sorsogon."

G.R. No. 120295

This is a petition to annul three Resolutions of the

respondent Comelec, the first two of which are also at issue
in G.R. No. 123755, as follows:
1. Resolution16 of the Second Division, promulgated on May 1,
1995, disqualifying Frivaldo from running for governor of
Sorsogon in the May 8, 1995 elections "on the ground that he is
not a citizen of the Philippines";
2. Resolution17 of the Comelec en bane, promulgated on May 11,
1995; and
3. Resolution18 of the Comelec en bane, promulgated also on May
11, 1995 suspending the proclamation of, among others, Frivaldo.

"First - The initiatory petition below was so far insufficient in form

and substance to warrant the exercise by the COMELEC of its
jurisdiction with the result that, in effect, the COMELEC acted
without jurisdiction in taking cognizance of and deciding said
petition;

On March 19, 1995, the Court heard oral argument

from the parties and required them thereafter to file
simultaneously their respective memoranda.

The Consolidated Issues

From the foregoing submissions, the consolidated

issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it
seasonably cure his lack of citizenship as to qualify him to be
proclaimed and to hold the Office of Governor? If not, may it be
given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of
Filipino citizenship a continuing bar to his eligibility to run for, be
elected to or hold the governorship of Sorsogon?

The Facts and the Issue

The facts of this case are essentially the same as

those in G.R. No. 123755. However, Frivaldo assails the
above-mentioned resolutions on a different ground: that
under Section 78 of the Omnibus Election Code, which is
reproduced hereinunder:

The Issues in G.R. No. 123755

Petitioner Lee's "position on the matter at hand briefly

be capsulized in the following propositions":15

By Resolution on March 12, 1996, the Court

consolidated G.R. Nos. 120295 and 123755 since they are
intimately related in their factual environment and are
identical in the ultimate question raised, viz., who should
occupy the position of governor of the province of Sorsogon.

"Section 78. Petition to deny due course or to cancel a certificate

of candidacy. A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall
be decided, after notice and hearing, not later than fifteen days
before the election." (Italics supplied.)

3. Did the respondent Comelec have jurisdiction over the initiatory

petition in SPC No. 95-317 considering that : said petition is not "a
pre-proclamation case, an election protest or a quo
warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid
and legal in light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its
jurisdiction in promulgating the assailed Resolutions, all of which
prevented Frivaldo from assuming the governorship of Sorsogon,
considering that they were not rendered within ( the period referred
to in Section 78 of the Omnibus Election Code, viz., "not later than
fifteen days before the elections"?

The First Issue: Frivaldo's Repatriation

The validity and effectivity of Frivaldo's repatriation is

the lis mota, the threshold legal issue in this case. All the
other matters raised are secondary to this.
The Local Government Code of 199119 expressly
requires Philippine citizenship as a qualification for elective
local officials, including that of provincial governor, thus:
"Sec. 39. Qualifications. (a) An elective local official must be a
citizen of the Philippines; a registered voter in the barangay,
municipality, city, or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or
sangguniang bayan, the district where he intends to be elected; a
resident therein for at least one (1) year immediately preceding the
day of the election; and able to read and write Filipino or any other
local language or dialect.
(b) Candidates for the position of governor, vice governor or
member of the sangguniang panlalawigan, or mayor, vice mayor or
member of the sangguniang panlungsod of highly urbanized cities
must be at least twenty-three (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this
Court20 as a non-citizen, it is therefore incumbent upon him
to show that he has reacquired citizenship; in fine, that he
possesses the qualifications prescribed under the said
statute (R. A. 7160).
Under Philippine law,21 citizenship may be reacquired
by direct act of Congress, by naturalization or by repatriation.
Frivaldo told this Court in G.R. No. 10465422 and during the
oral argument in this case that he tried to resume his
citizenship bydirect act of Congress, but that the bill allowing
him to do so "failed to materialize, notwithstanding the
endorsement of several members of the House of
Representatives" due, according to him, to the "maneuvers
of his political rivals." In the same case, his attempt
at naturalization was rejected by this Court because of
jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was
overwhelmingly elected governor by the electorate of
Sorsogon, with a margin of 27,000 votes in the 1988
elections, 57,000 in 1992, and 20,000 in 1995 over the same
opponent Raul Lee. Twice, he was judicially declared a nonFilipino and thus twice disqualified from holding and
discharging his popular mandate. Now, he comes to us a
third time, with a fresh vote from the people of Sorsogon and
a favorable decision from the Commission on Elections to
boot. Moreover, he now boasts of having successfully
passed through the third and last mode of reacquiring
citizenship: by repatriation under P.D. No. 725, with no less
than the Solicitor General himself, who was the prime
opposing counsel in the previous cases he lost, this time, as
counsel for co-respondent Comelec, arguing the validity of
his cause (in addition to his able private counsel Sixto S.

Brillantes, Jr.). That he took his oath of allegiance under the

provisions of said Decree at 2:00 p.m. on June 30, 1995 is
not disputed. Hence, he insists that henot Leeshould have
been proclaimed as the duly-elected governor of Sorsogon
when the Provincial Board of Canvassers met at 8:30 p.m.
on the said date since, clearly and unquestionably, he
garnered the highest number of votes in the elections and
since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is
tainted ; with serious defects, which we shall now discuss in
seriatim.
First, Lee tells us that P.D. No. 725 had "been
effectively repealed," asserting that "then President Corazon
Aquino exercising legislative powers under the Transitory
Provisions of the 1987 Constitution, forbade the grant of
citizenship by Presidential Decree or Executive Issuances as
the same poses a serious and contentious issue of policy
which the present government, in the exercise of prudence
and sound discretion, should best leave to the judgment of
the first Congress under the 1987 Constitution," adding that
in her memorandum dated March 27,1987 to the members
of the Special Committee on Naturalization constituted for
purposes of Presidential Decree No. 725, President Aquino
directed them "to cease and desist from undertaking any and
all proceedings within your functional area of responsibility
as defined under Letter of Instructions (LOI) No. 270 dated
April 11, 1975, as amended."23
This memorandum dated March 27, 198724 cannot by
any stretch of legal hermeneutics be construed as a law
sanctioning or authorizing a repeal of P.D. No. 725. Laws are
repealed only by subsequent ones25 and a repeal may be
express or implied. It is obvious that no express repeal
was made because then President Aquino in her
memorandum based on the copy furnished us by Lee did not
categorically and/or impliedly state that P.D. 725 was being
repealed or was being rendered without any legal effect. In
fact, she did not even mention it specifically by its number or
text. On the other hand, it is a basic rule of statutory
construction that repeals by implication are not favored. An
implied repeal will not be allowed "unless it is convincingly
and unambiguously demonstrated that the two laws are
clearly repugnant and patently inconsistent that they cannot
co-exist."26
The memorandum of then President Aquino cannot
even be regarded as a legislative enactment, for not every
pronouncement of the Chief Executive even under the
Transitory Provisions of the 1987 Constitution can nor should
be regarded as an exercise of her law-making powers. At
best, it could be treated as an executive policy addressed to
the Special Committee to halt the acceptance and
processing of applications for repatriation pending whatever
"judgment the first Congress under the 1987 Constitution"
might make. In other words, the former President did not
repeal P.D. 725 but left it to the first Congress once
createdto deal with the matter. If she had intended to repeal

such law, she should have unequivocally said so instead of

referring the matter to Congress. The fact is she carefully
couched her presidential issuance in terms that clearly
indicated the intention of "the present government, in the
exercise of prudence and sound discretion" to leave the
matter of repeal to the new Congress. Any other
interpretation of the said Presidential Memorandum, such as
is now being proffered to the Court by Lee, would visit
unmitigated violence not only upon statutory construction but
on common sense as well.
Second. Lee also argues that "serious congenital
irregularities flawed the repatriation proceedings," asserting
that Frivaldo's application therefor was "filed on June 29,
1995 x x x (and) was approved in just one day or on June
30, 1995 x x x," which "prevented a judicious review and
evaluation of the merits thereof." Frivaldo counters that he
filed his application for repatriation with the Office of the
President in Malacanang Palace on August 17, 1994. This is
confirmed by the Solicitor General. However, the Special
Committee was reactivated only on June 8, 1995, when
presumably the said Committee started processing his
application. On June 29, 1995, he filled up and re-submitted
the FORM that the Committee required. Under these
circumstances, it could not be said that there was "indecent
haste" in the processing of his application.
Anent Lee's charge that the "sudden reconstitution of
the Special Committee on Naturalization was intended solely
for the personal interest of respondent,"27 the Solicitor
General explained during the oral argument on March 19,
1996 that such allegation is simply baseless as there were
many others who applied and were considered for
repatriation, a list of whom was submitted by him to this
Court, through a Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are
convinced that the presumption of regularity in the
performance of official duty and the presumption of legality in
the repatriation of Frivaldo have not been successfully
rebutted by Lee. The mere fact that the proceedings were
speeded up is by itself not a ground to conclude that such
proceedings were necessarily tainted. After all, the
requirements of repatriation under P.D. No. 725 are not
difficult to comply with, nor are they tedious and
cumbersome. In fact, P.D. 72529 itself requires very little of
an applicant, and even the rules and regulations to
implement the said decree were left to the Special
Committee to promulgate. This is not unusual since, unlike in
naturalization where an alien covets a first-time entry into
Philippine political life, in repatriation the applicant is a
former natural-born Filipino who is merely seeking to
reacquire his previous citizenship. In the case of Frivaldo, he
was undoubtedly a natural-born citizen who openly and
faithfully served his country and his province prior to his
naturalization in the United States a naturalization he insists
was made necessary only to escape the iron clutches of a
dictatorship he abhorred and could not in conscience
embrace and who, after the fall of the dictator and the re-

establishment of democratic space, wasted no time in

returning to his country of birth to offer once more his talent
and services to his people.
So too, the fact that ten other persons, as certified to
by the Solicitor General, were granted repatriation argues
convincingly and conclusively against the existence of
favoritism vehemently posited by Raul Lee. At any rate, any
contest on the legality of Frivaldo's repatriation should have
been pursued before the Committee itself, and, failing there,
in the Office of the President, pursuant to the doctrine of
exhaustion of administrative remedies.
Third. Lee further contends that assuming the assailed
repatriation to be valid, nevertheless it could only be effective
as at 2:00 p.m. of June 30, 1995 whereas the citizenship
qualification prescribed by the Local Government Code
"must exist on the date of his election, if not when the
certificate of candidacy is filed," citing our decision in G.R.
10465430 which held that "both the Local Government Code
and the Constitution require that only Philippine citizens can
run and be elected to Public office" Obviously, however, this
was a mere obiter as the only issue in said case was
whether Frivaldo's naturalization was valid or not and NOT
the effective date thereof. Since the Court held his
naturalization to be invalid, then the issue of when an
aspirant for public office should be a citizen was NOT
resolved at all by the Court. Which question we shall now
directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n
elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality,
city, or province x x x where he intends to be
elected;
* a resident therein for at least one (1) year
immediately preceding the day of the election;
* able to read and write Filipino or any other
local language or dialect."
* In addition, "candidates for the position of
governor x x x must be at least twenty-three
(23) years of age on election day."
From the above, it will be noted that the law does not
specify any particular date or time when the candidate must
possess citizenship, unlike that for residence (which must
consist of at least one year's residency immediately
preceding the day of election) and age (at least twenty three
years of age on election day).
Philippine citizenship is an indispensable requirement
for holding an elective public office,31 and the purpose of the
citizenship qualification is none other than to ensure that no
alien, i.e., no person owing allegiance to another nation,

shall govern our people and our country or a unit of territory

thereof. Now, an official begins to govern or to discharge his
functions only upon his proclamation and on the day the law
mandates his term of office to begin. Since Frivaldo reassumed his citizenship on June 30, 1995the very day32 the
term of office of governor (and other elective officials)
beganhe was therefore already qualified to be proclaimed, to
hold such office and to discharge the functions and
responsibilities thereof as of said date. In short, at that time,
he was already qualified to govern his native Sorsogon. This
is the liberal interpretation that should give spirit, life and
meaning to our law on qualifications consistent with the
purpose for which such law was enacted. So too, even from
a literal (as distinguished from liberal) construction, it should
be noted that Section 39 of the Local Government Code
speaks of "Qualifications" of "ELECTIVE OFFICIALS," not of
candidates. Why then should such qualification be required
at the time of election or at the time of the filing of the
certificates of candidacies, as Lee insists? Literally, such
qualifications unless otherwise expressly conditioned, as in
the case of age and residence should thus be possessed
when the "elective [or elected] official" begins to govern, i.e.,
at the time he is proclaimed and at the start of his term in
this case, on June 30, 1995. Paraphrasing this Court's ruling
in Vasquez vs. Giapand Li Seng Giap & Sons,33 if the
purpose of the citizenship requirement is to ensure that our
people and country do not end up being governed by aliens,
i.e., persons owing allegiance to another nation, that aim or
purpose would not be thwarted but instead achieved by
construing the citizenship qualification as applying to the
time of proclamation of the elected official and at the start of
his term.
But perhaps the more difficult objection was the one
raised during the oral argument34 to the effect that the
citizenship qualification should be possessed at the time the
candidate (or for that matter the elected official) registered
as a voter. After all, Section 39, apart from requiring the
official to be a citizen, also specifies as another item of
qualification, that he be a "registered voter." And, under the
law35 a "voter" must be a citizen of the Philippines. So
therefore, Frivaldo could not have been a voter-much less
a validly registered one if he was not a citizen at the time of
such registration.
The answer to this problem again lies in discerning the
purpose of the requirement. If the law intended
the citizenship qualification to be possessed prior to election
consistent with the requirement of being a registered voter,
then it would not have made citizenship a SEPARATE
qualification. The law abhors a redundancy. It therefore
stands to reason that the law intended CITIZENSHIP to be a
qualification distinct from being a VOTER, even if being a
voter presumes being a citizen first. It also stands to reason
that the voter requirement was included as another
qualification (aside from "citizenship"), not to reiterate the
need for nationality but to require that the official be
registered as a voter IN THE AREA OR TERRITORY he
seeks to govern, i.e., the law states: "a registered voter in

the barangay, municipality, city, or province x x x where he

intends to be elected." It should be emphasized that the
Local Government Code requires an elective official to be a
registered
voter. It
does
not
require
him
to
vote actually. Hence, registrationnot the actual votingis the
core of this "qualification." In other words, the law's purpose
in this second requirement is to ensure that the prospective
official is actually registered in the area he seeks to govern
and not anywhere else.
Before this Court, Frivaldo has repeatedly
emphasizedand Lee has not disputed that he "was and is a
registered voter of Sorsogon, and his registration as a voter
has been sustained as valid by judicial declaration x x x In
fact, he cast his vote in his precinct on May 8, 1995."36
So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been a
registered voter of Sorsogon. He has voted in
1987,1988,1992, then he voted again in 1995. In fact, his
eligibility as a voter was questioned, but the court dismissed
(sic) his eligibility as a voter and he was allowed to vote as in
fact, he voted in all the previous elections including on May
8,1995.37
It is thus clear that Frivaldo is a registered voter in the
province where he intended to be elected.
There is yet another reason why the prime issue of
citizenship should be reckoned from the date of
proclamation, not necessarily the date of election or date of
filing of the certificate of candidacy. Section 253 of the
Omnibus Election Code38gives any voter, presumably
including the defeated candidate, the opportunity to question
the ELIGIBILITY (or the disloyalty) of a candidate. This is the
only provision of the Code that authorizes a remedy on how
to contest before the Comelec an incumbent's ineligibility
arising from failure to meet the qualifications enumerated
under Sec. 39 of the Local Government Code. Such remedy
of Quo Warranto can be availed of "within ten days after
proclamation" of the winning candidate. Hence, it is only at
such time that the issue of ineligibility may be taken
cognizance of by the Commission. And since, at the very
moment of Lee's proclamation (8:30 p.m., June 30, 1995),
Juan G. Frivaldo was already and indubitably a citizen,
having taken his oath of allegiance earlier in the afternoon of
the same day, then he should have been the candidate
proclaimed as he unquestionably garnered the highest
number of votes in the immediately preceding elections and
such oath had already cured his previous "judiciallydeclared" alienage. Hence, at such time, he was no longer
ineligible.
But to remove all doubts on this important issue, we
also hold that the repatriation of Frivaldo RETRO ACTED to
the date of the filing of his application on August 17,1994.
It is true that under the Civil Code of
the Philippines,39 "(l)aws shall have no retroactive effect,
unless the contrary is provided." But there are settled

exceptions40 to this general rule, such as when the statute

is CURATIVE or REMEDIAL in nature or when it CREATES
NEW RIGHTS.
According to Tolentino,41 curative statutes are those
which undertake to cure errors and irregularities, thereby
validating judicial or administrative proceedings, acts of
public officers, or private deeds and contracts which
otherwise would not produce their intended consequences
by reason of some statutory disability or failure to comply
with some technical requirement. They operate on conditions
already existing, and are necessarily retroactive in operation.
Agpalo,42 on the other hand, says that curative statutes are
"healing acts x x x curing defects and adding to the means of
enforcing existing obligations x x x (and) are intended to
supply defects, abridge superfluities in existing laws, and
curb certain evils x x x By their very nature, curative statutes
are retroactive xxx (and) reach back to past events to correct
errors or irregularities and to render valid and effective
attempted acts which would be otherwise ineffective for the
purpose the parties intended."
On the other hand, remedial or procedural laws, i.e.,
those statutes relating to remedies or modes of procedure,
which do not create new or take away vested rights, but only
operate in furtherance of the remedy or confirmation of such
rights, ordinarily do not come within the legal meaning of a
retrospective law, nor within the general rule against the
retrospective operation of statutes.43
A reading of P.D. 725 immediately shows that it
creates a new right, and also provides for a new remedy,
thereby filling certain voids in our laws. Thus, in its preamble,
P.D. 725 expressly recognizes the plight of "many Filipino
women (who) had lost their Philippine citizenship by
marriage to aliens" and who could not, under the existing law
(C. A. No. 63, as amended) avail of repatriation until "after
the death of their husbands or the termination of their marital
status" and who could neither be benefitted by the 1973
Constitution's new provision allowing "a Filipino woman who
marries an alien to retain her Philippine citizenship xxx"
because "such provision of the new Constitution does not
apply to Filipino women who had married aliens before said
constitution took effect." Thus, P.D. 725 granted a new right
to these womenthe right to re-acquire Filipino citizenship
even during their marital coverture, which right did not exist
prior to P.D. 725. On the other hand, said statute also
provided a new remedy and a new right in favor of other
"natural born Filipinos who (had) lost their Philippine
citizenship but now desire to re-acquire Philippine
citizenship," because prior to the promulgation of P.D. 725
such former Filipinos would have had to undergo the tedious
and cumbersome process of naturalization, but with the
advent of P.D. 725 they could now re-acquire their Philippine
citizenship under the simplified procedure of repatriation.
The Solicitor General44 argues:

"By their very nature, curative statutes are retroactive,

(DBP vs. CA, 96 SCRA 342), since they are intended to supply
defects, abridge superfluities in existing laws (Del
Castillo vs. Securities and Exchange Commission, 96 Phil. 119)
and curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the
existing naturalization law, specifically C. A. No. 63 wherein
married Filipino women are allowed to repatriate only upon the
death of their husbands, and natural-born Filipinos who lost their
citizenship by naturalization and other causes faced the difficulty
of undergoing the rigid procedures of C.A. 63 for reacquisition of
Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the
aforementioned legal aberrations and thus its provisions are
considered essentially remedial and curative."
In light of the foregoing, and prescinding from the
wording of the preamble, it is unarguable that the legislative
intent was precisely to give the statute retroactive operation.
"(A) retrospective operation is given to a statute or
amendment where the intent that it should so operate clearly
appears from a consideration of the act as a whole, or from
the terms thereof."45 It is obvious to the Court that the
statute was meant to "reach back" to those persons, events
and transactions not otherwise covered by prevailing law
and jurisprudence. And inasmuch as it has been held that
citizenship is a political and civil right equally as important as
the freedom of speech, liberty of abode, the right against
unreasonable searches and seizures and other guarantees
enshrined in the Bill of Rights, therefore the legislative intent
to give retrospective operation to P.D. 725 must be given the
fullest effect possible. "(I)t has been said that a remedial
statute must be so construed as to make it effect the evident
purpose for -which it was enacted, so that if the reason of
the statute extends to past transactions, as well as to those
in the future, then it will be so applied although the statute
does not in terms so direct, unless to do so would impair
some vested right or violate some constitutional
guaranty."46 This is all the more true of P.D. 725, which did
not specify any restrictions on or delimit or qualify the right of
repatriation granted therein.
At this point, a valid question may be raised: How can
the retroactivity of P.D. 725 benefit Frivaldo considering that
said law was enacted on June 5,1975, while Frivaldo lost his
Filipino citizenship much later, on January 20, 1983, and
applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the
time that Frivaldo became an American citizen, nevertheless,
it is not only the law itself (P.D. 725) which is tobe given
retroactive effect, but even the repatriation granted under
said law to Frivaldo on June 30, 1995 is to be deemed to
have retroacted to the date of his application therefor, August
17, 1994. The reason for this is simply that if, as in this case,

it was the intent of the legislative authority that the law

should
apply to
pastevents
i.e.,
situations
and
transactions existing even before the law came into being in
order to benefit the greatest number of former Filipinos
possible thereby enabling them to enjoy and exercise the
constitutionally guaranteed right of citizenship, and such
legislative intention is to be given the fullest effect and
expression, then there is all the more reason to have the
law apply in a retroactive or retrospective manner to
situations, events and transactions subsequent to the
passage of such law. That is, the repatriation granted to
Frivaldo on June 30, 1995 can and should be made to take
effect as of date of his application. As earlier mentioned,
there is nothing in the law that would bar this or would show
a contrary intention on the part of the legislative authority;
and there is no showing that damage or prejudice to anyone,
or anything unjust or injurious would result from giving
retroactivity to his repatriation. Neither has Lee shown that
there will result the impairment of any contractual obligation,
disturbance of any vested right or breach of some
constitutional guaranty.
Being a former Filipino who has served the people
repeatedly, Frivaldo deserves a liberal interpretation of
Philippine laws and whatever defects there were in his
nationality should now be deemed mooted by his
repatriation.
Another argument for retroactivity to the date of filing is
that it would prevent prejudice to applicants. If P.D. 725 were
not to be given retroactive effect, and the Special Committee
decides not to act, i.e., to delay the processing of
applications for any substantial length of time, then the
former Filipinos who may be stateless, as Frivaldohaving
already renounced his American citizenship was, may be
prejudiced for causes outside their control. This should not
be. In case of doubt in the interpretation or application of
laws, it is to be presumed that the law-making body intended
right and justice to prevail.47
And as experience will show, the Special Committee was
able to process, act upon and grant applications for
repatriation within relatively short spans of time after the
same were filed.48 The fact that such interregna were
relatively insignificant minimizes the likelihood of prejudice to
the government as a result of giving retroactivity to
repatriation. Besides, to the mind of the Court, direct
prejudice to the government is possible only where a
person's repatriation has the effect of wiping out a liability of
his to the government arising in connection with or as a
result of his being an alien, and accruing only during the
interregnum between application and approval, a situation
that is not present in the instant case.
And it is but right and just that the mandate of the
people, already twice frustrated, should now prevail. Under
the circumstances, there is nothing unjust or iniquitous in
treating Frivaldo's repatriation as having become effective as
of the date of his application, i.e., on August 17, 1994. This

being so, all questions about his possession of the

nationality qualification whether at the date of proclamation
(June 30, 1995) or the date of election (May 8, 1995) or date
of filing his certificate of candidacy (March 20, 1995) would
become moot.
Based on the foregoing, any question regarding Frivaldo's status as
a registered voter would also be deemed settled. Inasmuch as he is
considered as having been repatriatedi.e., his Filipino citizenship
restored as of August 17, 1994, his previous registration as a voter
is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an
American. Would the retroactivity of his repatriation not
effectively give him dual citizenship, which under Sec. 40 of the
Local Government Code would disqualify him "from running for
any elective local position?"49We answer this question in the
negative, as there is cogent reason to hold that Frivaldo was really
STATELESS at the time he took said oath of allegiance and even
before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he "had long renounced and had long
abandoned his American citizenshiplong before May 8, 1995. At
best, Frivaldo was stateless in the interim when he abandoned and
renounced his US citizenship but before he was repatriated to his
Filipino citizenship."50
On this point, we quote
dated December 19, 1995:51

from the assailed Resolution

"By the laws of the United States, petitioner Frivaldo lost his
American citizenship when he took his oath of allegiance to the
Philippine Government when he ran for Governor in 1988, in
1992, and in 1995. Every certificate of candidacy contains an oath
of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign
nationality long before the elections of 1995 have not been
effectively rebutted by Lee. Furthermore, it is basic that such
findings of the Commission are conclusive upon this Court,
absent any showing of capriciousness or arbitrariness or
abuse.52

The Second Issue: Is Lack of Citizenship a Continuing

Disqualification?

Lee contends that the May 1,1995 Resolution53 of the

Comelec Second Division in SPA No. 95-028 as affirmed in
toto by Comelec En Banc in its Resolution of May 11, 1995
"became final and executory after five (5) days or on May
17,1995, no restraining order having been issued by this
Honorable Court."54 Hence, before Lee "was proclaimed as
the elected governor on June 30, 1995, there was already a

final and executory judgment disqualifying" Frivaldo. Lee

adds that this Court's two rulings (which Frivaldo now
concedes were legally "correct") declaring Frivaldo an alien
have also become final and executory way before the 1995
elections, and these "judicial pronouncements of his political
status as an American citizen absolutely and for all time
disqualified (him) from running for, and holding any public
office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No.
87193 disqualifying Frivaldo was rendered in connection with
the 1988 elections while that in G.R. No. 104654 was in
connection with the 1992 elections. That he was disqualified
for such elections is final and can no longer be changed. In
the words of the respondent Commission (Second Division)
in its assailed Resolution:55
"The records show that the Honorable Supreme Court had decided
that Frivaldo was not a Filipino citizen and thus disqualified for the
purpose of the 1988 and 1992 elections. However, there is no
record of any 'final judgment' of the disqualification of Frivaldo as
a candidate for theMay 8, 1995 elections. What the Commission
said in its Order of June 21, 1995 (implemented on June 30,
1995), directing the proclamation of Raul R. Lee, was that Frivaldo
was not a Filipino citizen 'having been declared by the Supreme
Court in its Order dated March 25, 1995, not a citizen of the
Philippines.' This declaration of the Supreme Court, however, was
in connection with the 1992 elections."
Indeed, decisions declaring the acquisition or denial of
citizenship cannot govern a person's future status with
finality. This is because a person may subsequently
reacquire, or for that matter lose, his citizenship under any of
the modes recognized by law for the purpose. Hence, in Lee
vs. Commissioner of Immigration,56 we held:
"Everytime the citizenship of a person is material or indispensable
in a judicial or administrative case, whatever the corresponding
court or administrative authority decides therein as to such
citizenship is generally not considered res judicata, hence it has to
be threshed out again and again, as the occasion demands."
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no
jurisdiction to entertain the petition in SPC No. 95-317
because the only "possible types of proceedings that may be
entertained by the Comelec are a pre-proclamation case, an
election protest or a quo warranto case." Again, Lee reminds
us that he was proclaimed on June 30, 1995 but that
Frivaldo filed SPC No. 95-317 questioning his (Lee's)
proclamation only on July 6, 1995 "beyond the 5-day
reglementary period." Hence, according to him, Frivaldo's

"recourse was to file either an election protest or a quo

warranto action."
This
argument
is
not
meritorious.
The
Constitution57 has given the Comelec ample power to
"exercise exclusive original jurisdiction over all contests
relating to the elections, returns and qualifications of all
elective x x x provincial x x x officials." Instead of dwelling at
length on the various petitions that Comelec, in the exercise
of its constitutional prerogatives, may entertain, suffice
it to say that this Court has invariably recognized the
Commission's authority to hear and decide petitions for
annulment of proclamations of which SPC No. 95-317
obviously is one.58 Thus, in Mentang vs. COMELEC,59 we
ruled:
"The petitioner argues that after proclamation and assumption of
office, a pre-proclamation controversy is no longer viable. Indeed,
we are aware of cases holding that pre-proclamation controversies
may no longer be entertained by the COMELEC after the winning
candidate has been proclaimed, (citing Gallardo vs. Rimando, 187
SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513;
Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is
premised on an assumption that the proclamation is no
proclamation at all and the proclaimed candidate's assumption of
office cannot deprive the COMELEC of the power to make such
declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA
883; Agbayani vs. COMELEC, 186 SCRA 484.)"
The Court however cautioned that such power to annul
a proclamation must "be done within ten (10) days following
the proclamation." Inasmuch as Frivaldo's petition was filed
only six (6) days after Lee's proclamation, there is no
question that the Comelec correctly acquired jurisdiction
over the same.

The Fourth Issue: Was Lee's Proclamation Valid

Frivaldo assails the validity of the Lee proclamation.

We uphold him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact
remains that he (Lee) was not the choice of the sovereign will,"
and in Aquino vs. COMELEC,61 Lee is "a second placer, xxx just
that, a second placer."
In spite of this, Lee anchors his claim to the
governorship on the pronouncement of this Court in the
aforesaid Labo62 case, as follows:
"The rule would have been different if the electorate fully aware in
fact and in law of a candidate's disqualification so as to bring such

awareness within the realm of notoriety, would nonetheless cast

their votes in favor of the ineligible candidate. In such case, the
electorate may be said to have waived the validity and efficacy of
their votes by notoriously misapplying their franchise or throwing
away their votes, in which case, the eligible candidate obtaining
the next higher number of votes may be deemed elected."
But such holding is qualified by the next paragraph,
thus:
"But this is not the situation obtaining in the instant dispute. It has
not been shown, and none was alleged, that petitioner Labo was
notoriously known as an ineligible candidate, much less the
electorate as having known of such fact. On the contrary, petitioner
Labo was even allowed by no less than the Comelec itself in its
resolution dated May 10, 1992 to be voted for the office of
the city mayor as its resolution dated May 9,1992 denying due
course to petitioner Labo's certificate of candidacy had not yet
become final and subject to the final outcome of this case."
The last-quoted paragraph in Labo, unfortunately for
Lee, is the ruling appropriate in this case because Frivaldo
was in 1995 in an identical situation as Labo was in 1992
when the Comelec's cancellation of his certificate of
candidacy was not yet final on election day as there was in
both cases a pending motion for reconsideration, for which
reason Comelec issued an (omnibus) resolution declaring
that Frivaldo (like Labo in 1992) and several others can still
be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence
presented to show that the electorate of Sorsogon was "fully
aware in fact and in law" of Frivaldo's alleged disqualification
as to "bring such awareness within the realm of notoriety", in
other words, that the voters intentionally wasted their ballots
knowing that, in spite of their voting for him, he was
ineligible. If Labo has any relevance at all, it is that the vicegovernor and not Leeshould be proclaimed, since in losing
the election, Lee was, to paraphrase Labo again, "obviously
not the choice of the people" of Sorsogon. This is the
emphatic teaching of Labo:
"The rule, therefore, is: the ineligibility of a candidate receiving
majority votes does not entitle the eligible candidate receiving the
next highest number of votes to be declared elected. A minority or
defeated candidate cannot be deemed elected to the office."
Second. As we have earlier declared Frivaldo to have
seasonably re-acquired his citizenship and inasmuch as he
obtained the highest number of votes in the 1995 elections,
henot Lee should be proclaimed. Hence, Lee's proclamation
was patently erroneous and should now be corrected.

The Fifth Issue: Is Section 78 of the Election Code

Mandatory?

In G.R. No. 120295, Frivaldo claims that the assailed

Resolution of the Comelec (Second Division) dated May 1,
1995 and the confirmatory en banc Resolution of May 11,
1995 disqualifying him for want of citizenship should be
annulled because they were rendered beyond the fifteen
(15) day period prescribed by Section 78 of the Omnibus
Election Code which reads as follows:
"Section 78. Petition to deny due course or to cancel a certificate
of candidacy. A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall
be decided after notice and hearing, not later than fifteen days
before the election" (italics supplied.)
This claim is now moot and academic inasmuch as
these resolutions are deemed superseded by the
subsequent ones issued by the Commission (First Division)
on December 19, 1995, affirmed en banc63 on February 23,
1996, which both upheld his election. At any rate, it is
obvious that Section 78 is merely directory as Section 6 of
R.A. No. 6646 authorizes the Commission to try and decide
petitions for disqualifications even after the elections, thus:
"SEC. 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
-winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action,
inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension
of the proclamation of such candidate whenever the evidence of his
guilt is strong." (Italics supplied)

Refutation of Mr. Justice Davide's Dissent

In his dissenting opinion, the esteemed Mr. Justice

Hilario G. Davide, Jr. argues that President Aquino's
memorandum dated March 27, 1987 should be viewed as a
suspension (not a repeal, as urged by Lee) of P.D. 725. But
whether it decrees a suspension or a repeal is a purely
academic distinction because the said issuance is not a
statute that can amend or abrogate an existing law. The
existence and subsistence of P.D. 725 were recognized in

the first Frivaldo case;64 viz, "(u)nder CA No. 63 as

amended by CA No. 473 and P.D. No. 725, Philippine
citizenship maybe reacquired by xxx repatriation" He also
contends that by allowing Frivaldo to register and to remain
as a registered voter, the Comelec and in effect this Court
abetted a "mockery" of our two previous judgments declaring
him a non-citizen. We do not see such abetting or mockery.
The retroactivity of his repatriation, as discussed earlier,
legally cured whatever defects there may have been in his
registration as a voter for the purpose of the 1995 elections.
Such retroactivity did not change his disqualifications in 1988
and 1992, which were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is
not the sole remedy to question the ineligibility of a
candidate, citing the Comelec's authority under Section 78 of
the Omnibus Election Code allowing the denial of a
certificate of candidacy on the ground of a false material
representation therein as required by Section 74.
Citing Loong, he then states his disagreement with our
holding that Section 78 is merely directory. We really have
no quarrel. Our point is that Frivaldo was in error in his claim
in G.R. No. 120295 that the Comelec Resolutions
promulgated on May 1, 1995 and May 11, 1995 were invalid
because they were issued "not later than fifteen days before
the election" as prescribed by Section 78. In dismissing the
petition in G.R. No. 120295, we hold that the Comelec did
not commit grave abuse of discretion because "Section 6 of
R. A. 6646 authorizes the Comelec to try and decide
disqualifications even after the elections." In spite of his
disagreement with us on this point, i.e., that Section 78 "is
merely directory," we note that just like us, Mr. Justice
Davide nonetheless votes to "DISMISS G.R. No. 120295."
One other point. Loong, as quoted in the dissent, teaches
that a petition to deny due course under Section 78 must
be filed within the 25-day period prescribed therein. The
present case however deals with the period during which the
Comelec may decide such petition. And we hold that it may
be decided even after the fifteen day period mentioned in
Section 78. Here, we rule that a decision promulgated by the
Comelec even after the elections is valid but Loong held that
a petition filed beyond the 25-day period is out of time. There
is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's
holding that, given the unique factual circumstances of
Frivaldo, repatriation may be given retroactive effect. He
argues that such retroactivity "dilutes" our holding in the first
Frivaldo case. But the first (and even the second Frivaldo)
decision did not directly involve repatriation as a mode of
acquiring citizenship. If we may repeat, there is no question
that Frivaldo was not a Filipino for purposes of determining
his qualifications in the 1988 and 1992 elections. That is
settled. But his supervening repatriation has changed his
political status not in 1988 or 1992, but only in the 1995
elections.
Our learned colleague also disputes our holding that
Frivaldo was stateless prior to his repatriation, saying that

"informal renunciation or abandonment is not a ground to

lose American citizenship." Since our courts are charged
only with the duty of the determining who are Philippine
nationals, we cannot rule on the legal question of who are or
who are not Americans. It is basic in international law that a
State determines ONLY those who are its own citizens not
who are the citizens of other countries.65 The issue here is:
the Comelec made a finding of fact that Frivaldo was
stateless and such finding has not been shown by Lee to be
arbitrary or whimsical. Thus, following settled case law, such
finding is binding and final.
The dissenting opinion also submits that Lee who lost
by chasmic margins to Frivaldo in all three previous
elections, should be declared winner because "Frivaldo's
ineligibility for being an American was publicly known." First,
there is absolutely no empirical evidence for such "public"
knowledge. Second, even if there is, such knowledge can be
true post facto only of the last two previous elections. Third,
even the Comelec and now this Court were/are still
deliberating on his nationality before, during and after the
1995 elections. How then can there be such "public"
knowledge?
Mr. Justice Davide submits that Section 39 of the Local
Government Code refers to the qualifications of elective local
officials, i.e., candidates, and not elected officials, and that
the citizenship qualification [under par. (a) of that section]
must be possessed by candidates, not merely at the
commencement of the term, but by election day at the latest.
We see it differently. Section 39, par. (a) thereof speaks of
"elective local official" while par. (b) to (f) refer to
"candidates." If the qualifications under par. (a) were
intended to apply to "candidates" and not elected officials,
the legislature would have said so, instead of differentiating
par. (a) from the rest of the paragraphs. Secondly, if
Congress had meant that the citizenship qualification should
be possessed at election day or prior thereto, it would have
specifically stated such detail, the same way it did in pars.
(b) to (f) for other qualifications of candidates for governor,
mayor, etc.
Mr. Justice Davide also questions the giving of
retroactive effect to Frivaldo's repatriation on the ground,
among others, that the law specifically provides that it is only
after taking the oath of allegiance that applicants shall be
deemed to have reacquired Philippine citizenship. We do not
question what the provision states. We hold however that the
provision should be understood thus: that after taking the
oath of allegiance the applicant is deemed to have
reacquired Philippine citizenship, which reacquisition (or
repatriation) is deemed for all purposes and intents to have
retroacted to the date of his application therefor.
In any event, our "so too" argument regarding the
literal meaning of the word "elective" in reference to Section
39 of the Local Government Code, as well as regarding Mr.
Justice Davide's thesis that the very wordings of P.D. 725

suggest non-retroactivity, were already taken up rather

extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call:
"This Court must be the first to uphold the Rule of Law." We
agree we must all follow the rule of law. But that is NOT the
issue here. The issue is how should the law be interpreted
and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice
of philosophy and perception of how to interpret and apply
laws relating to elections: literal or liberal; the letter or the
spirit; the naked provision or its ultimate purpose; legal
syllogism or substantial justice; in isolation or in the context
of social conditions; harshly against or gently in favor of the
voters' obvious choice. In applying election laws, it would be
far better to err in favor of popular sovereignty than to be
right in complex but little understood legalisms. Indeed, to
inflict a thrice rejected candidate upon the electorate of
Sorsogon would constitute unmitigated judicial tyranny and
an unacceptable assault upon this Court's conscience.

EPILOGUE

In sum, we rule that the citizenship requirement in the

Local Government Code is to be possessed by an elective
official at the latest as of the time he is proclaimed and at the
start of the term of office to which he has been elected. We
further hold P.D. No. 725 to be in full force and effect up to
the present, not having been suspended or repealed
expressly nor impliedly at any time, and Frivaldo's
repatriation by virtue thereof to have been properly granted
and thus valid and effective. Moreover, by reason of the
remedial or curative nature of the law granting him a new
right to resume his political status and the legislative intent
behind it, as well as his unique situation of having been
forced to give up his citizenship and political aspiration as his
means of escaping a regime he abhorred, his repatriation is
to be given retroactive effect as of the date of his application
therefor, during the pendency of which he was stateless, he
having given ' up his U. S. nationality. Thus, in contemplation
of law, he possessed the vital requirement of Filipino
citizenship as of the start of the term of office of governor,
and should have been proclaimed instead of Lee.
Furthermore, since his reacquisition of citizenship retroacted
to August 17, 1994, his registration as a voter of Sorsogon is
deemed to have been validated as of said date as well. The
foregoing, of course, are precisely consistent with our
holding that lack of the citizenship requirement is not a
continuing disability or disqualification to run for and hold
public office. And once again, we emphasize herein our
previous rulings recognizing the Comelec's authority and
jurisdiction to hear and decide petitions for annulment of
proclamations.

This Court has time and again liberally and equitably

construed the electoral laws of our country to give fullest
effect to the manifest will of our people,66 for in case of
doubt, political laws must be
interpreted to give life and spirit to the popular
mandate freely expressed through the ballot. Otherwise
stated, legal niceties and technicalities cannot stand in the
way of the sovereign will. Consistently, we have held:
"x x x (L)aws governing election contests must be liberally
construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections
(citations omitted)."67
The law and the courts must accord Frivaldo every
possible protection, defense and refuge, in deference to the
popular will. Indeed, this Court has repeatedly stressed the
importance of giving effect to the sovereign will in order to
ensure the survival of our democracy. In any action involving
the possibility of a reversal of the popular electoral choice,
this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it
is merely sound public policy to cause elective offices to be
filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications,
the petitioner must clearly demonstrate that the ineligibility is
so patently antagonistic68 to constitutional and legal
principles that overriding such ineligibility and thereby giving
effect to the apparent will of the people, would ultimately
create greater prejudice to the very democratic institutions
and juristic traditions that our Constitution and laws so
zealously protect and promote. In this undertaking, Lee has
miserably failed.
In Frivaldo's case, it would have been technically easy
to find fault with his cause. The Court could have refused to
grant retroactivity to the effects of his repatriation and hold
him still ineligible due to his failure to show his citizenship at
the time he registered as a voter before the 1995 elections.
Or, it could have disputed the factual findings of the Comelec
that he was stateless at the time of repatriation and thus hold
his consequent dual citizenship as a disqualification "from
running for any elective local position." But the real essence
of justice does not emanate from quibblings over patchwork
legal technicality. It proceeds from the spirit's gut
consciousness of the dynamic role of law as a brick in the
ultimate development of the social edifice. Thus, the Court
struggled against and eschewed the easy, legalistic,
technical and sometimes harsh anachronisms of the law in
order to evoke substantial justice in the larger social context
consistent with Frivaldo's unique situation approximating
venerability in Philippine political life. Concededly, he sought
American citizenship only to escape the clutches of the
dictatorship. At this stage, we cannot seriously entertain any
doubt about his loyalty and dedication to this country. At the
first opportunity, he returned to this land, and sought to serve
his people once more. The people of Sorsogon

overwhelmingly voted for him three times. He took an oath of

allegiance to this Republic every time he filed his certificate
of candidacy and during his failed naturalization bid. And let
it not be overlooked, his demonstrated tenacity and sheer
determination to re-assume his nationality of birth despite
several legal set-backs speak more loudly, in spirit, in fact
and in truth than any legal technicality, of his consuming
intention and burning desire to re-embrace his native
Philippines even now at the ripe old age of 81 years. Such
loyalty to and love of country as well as nobility of purpose
cannot be lost on this Court of justice and equity. Mortals of
lesser mettle would have given up. After all, Frivaldo was
assured of a life of ease and plenty as a citizen of the most
powerful country in the world. But he opted, nay, singlemindedly insisted on returning to and serving once more his
struggling but beloved land of birth. He therefore deserves
every liberal interpretation of the law which can be applied in
his favor. And in the final analysis, over and above Frivaldo
himself, the indomitable people of Sorsogon most certainly
deserve to be governed by a leader of their overwhelming
choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby
DISMISSED. The assailed Resolutions of the respondent
Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also
DISMISSED for being moot and academic. In any event, it
has no merit.
No costs.
SO ORDERED.

MARCELINO SARMIENTO, as Treasurer of the City of

Manila and JOSE ERESTAIN, as Auditor of the City of
Manila, respondents-appellants.
REYES, J.B.L., J.:
Appeal by the respondents from the decision of the Court of
First Instance of Manila, dated December 8, 1959, the
dispositive portion of which reads
For the foregoing considerations, the Court hereby
renders judgment, commanding the respondents
to provide for the payment of back salary
increases to each of herein petitioners from
February 1, 1953 up to October 31, 1955, and
from November 1, 1955 up to the present in
accordance with the standardization of pay
provided for in the various budget ordinances.
The facts, embodied in the Stipulation of Facts entered into
by the parties, are substantially as follows:
Petitioners are members of the Detective Bureau of the
Manila Police Department, while respondents Lacson,
Sarmiento and Erestain are, respectively, the incumbent
Mayor, Treasurer and Auditor for the City of Manila, and are
sued in their official capacity. On different dates in July,
1952, petitioners were dismissed from the service by
respondent mayor. Upon suits separately filed questioning
their dismissal, the Court of First Instance of Manila ordered
petitioners reinstatement, who were accordingly reinstated
on September 14, 1955, except petitioner Rosendo
Meneses, who was reinstated on March 14, 1956.
Thereafter, petitioners were paid their salaries for the period
of their separation at the same rate that they were receiving
prior to dismissal.
Meanwhile on October 31, 1952, during petitioners'
separation respondent mayor approved Ordinance No. 3538,
the budget for the City of Manila for the fiscal year 19521953, where provisions were made for salary increases to all
members of the Manila Police Department Pursuant thereto,
promotional appointments, effective February 1, 1953, were
extended to a majority of the MPD police force.

G.R. No. L-16507

May 31, 1961

JESUS T. GESOLGON, ROSENDO MENESES, RUBEN

DEL ROSARIO, EDUARDO ADVINCULA, ALFREDO
GARCIA, GORGONIO MARIANO, CECILIO E. TRINIDAD,
GERONIMO
CAGUIAT, FIDEL
SALDAA,
JOSE
MANGALIMAN, EUSEBIO CAMPILLO and JOSE C.
GONZALES, petitioners-appellees,
vs.
ARSENIO H. LACSON, as Mayor of the City of Manila,

On September 10, 1955, respondent mayor approved

Ordinance No. 3667, the City of Manila budget for the fiscal
year 1955-1956, which provided further increases in the
salaries of the members of the Manila Police Department
pursuant to which, promotional appointments were again
extended to some members of the Manila Police
Department. On March 14, 1958, and on July 9, 1958, the
city budgets covering fiscal years 1957-1958 and 1958-1959
were also approved.

Petitioners have not enjoyed the full benefits of these

ordinances, the majority of them continuing to receive the
same rate they had prior to their dismissal, except five of
them who have since then been granted increases, but still
short of those provided in Ordinance No. 3667 for the fiscal
year 1955-1956 (Exhibits "M"; "T"). On August 11, 1958,
petitioners formally demanded from respondent mayor the
payment to them of the salary increases under the aforesaid
ordinances, but this demand was denied by a letter dated
29, 1958 (Exhibit "S" & "T").
In issuing the writ of mandamus prayed for below, the lower
court acted on the belief that the desired increases in
petitioners' salaries were not promotions, but merely
standardization or adjustment in pay; that consequently, the
issuance in favor of petitioners of promotional increases
under the budget ordinances aforesaid was a purely
ministerial act on the part of the respondent mayor; and
assuming, that he enjoyed discretion on the matter, that
respondent mayor committed a grave abuse of discretion in
refusing to extend promotional appointments to petitioners.
The contrary propositions are maintained in this appeal.
We are aware of no law, rule or regulation, and are pointed
to none, which grants to a civil service employee the right to
automatically enjoy the salary to which his item has been
increased while occupying the same. That an increase in the
salary attached to a position is considered a promotion, has
to be conceded. Section 256 of the Revised Administrative
Code provides:
Where a new position is created or the salary of
an existing position is increased, appointment to
such new position or promotion to the increased
salary shall not be effective, unless expressly so
provided, prior to the enactment of the law
creating the new position or authorizing the higher
salary; and aside from exceptional cases
approved as such by the proper Head of
Department, an appointment or promotion shall
not be effective as of a date prior to that upon
which the appointment or promotion is actually
made. (Emphasis supplied)
Note that while the afore-quoted provision speaks of the time
at which an appointment shall be deemed effective, it is
nevertheless apposite as to the meaning and scope of
promotion, to which, under said provision, appears to include
increases in salary. Also, promotions in the service, as laid
down by the Office of the President in its Circular dated
March 5, 1954 (See Administrative Investigations by
Pangramuyen & Daga, Appendix 37, p. 259), are limited to
"not more than two grades for promotions in the same
position or from the position to another without any increase
in duties and responsibilities." (Emphasis supplied). Even
without a change in position, a salary increase is still a

promotion. Where the law does not distinguish, the courts

should not.
But not only that. Executive Order No. 94, series of 1947,
issued pursuant to Republic Act No. 51, entitled "An Act
Authorizing the President of the Philippines to Reorganize
Within 1 Year the Different Executive Departments Bureaus,
Offices, Agencies and other Instrumentalities of the
Government, including the Corporations owned or controlled
by it among others, classified positions into "Chief of
Divisions, Chief of Sections, Supervisory Positions &
Positions of Equivalent Rank" on one hand, and
"Subordinate Clerical or Equivalent Positions" on the other.
The first classification provides for fifteen (15) grades, with
the corresponding salary rates ranging from P2,400.00 to
P6,000.00 per annum; the second, divided into eight (8)
grades, with salary rates ranging from P1,440.00 to
P2,280.00 per annum. The desired increases in petitioners'
salaries definitely would involve ascent into the higher salary
grades classified in the above Executive Order. Authorities
have held that "each salary group in the same classification
of positions constitutes a separate group of positions for the
purpose of promotion." (67 C.J.S., p. 220)
As a matter of established practice in the government,
enjoyment of an increased salary attached to an item has
not been regarded as an absolute right or an automatic
acquisition.
We take judicial notice of the practice being
followed in the Philippine Civil Service that an
increase in the salary appropriated for a position
does not actually accrue to the holder of the
position until and unless said holder (of the
position) has been given the increased
salary. . . . An increase in an appropriation or
salary should not automatically entitle the holder
of the position to such increased salary; this
increase may have possibly been effected
because of the greater importance or responsibility
attached or to be attached to the recreated
position. But the fact that an employee holds that
position does not necessarily imply that he is fully
entitled or qualified to receive the increased salary
provided for. (Board of Directors of Philippine
Charity Sweepstakes Office v. Alandy et al., L15391, October 31, 1960) (Emphasis supplied) .
In official indorsements issued by the Office of the President
(Exhibits "1" & "2") pertaining to appointments of policemen
in the City of Manila, the same view is maintained:
. . . this Office is of the view that the increase of
the salary attached to an item occupied by an
employee, whether made singly or in mass as in
so-called salary readjustments, does not

automatically entitle the employee to receive the

full item. It is usual in the public service that an
employee may be appointed to receive a salary
lower than that provided for in the item to be
occupied by him; it is only when the employee is
promoted to the higher salary rank that he may
enjoy his full item. This is done only when the
employee is deserving. . .
Interpretations of administrative officials in charge of
enforcing a law are entitled to great weight and consideration
(In Re Allen, 2 Phil. 630); Gov't of P.I. v. Mun. of Binalonan,
32 Phil. 634; Guano v. Fernandez, 55 Phil. 814, and others.)
Far from being automatic, enjoyment of an increased salary
in an item appears conditioned on a promotional
appointment, pursuant to law and as laid down by practice.
And, corollarilly, it has been held that
An appointment to office is intrinsically an
executive act, involving the exercise of judgment
and discretion.
The power to appoint to office carries with it
discretion the exercise of the power and a valid
appointment requires a choice by the appointing
power of the person appointed. . . . . The right to
an appointive office rests on a due and proper
appointment. . . . . (67 C.J.S. 157; 158-159).
But discretion is not a blanket authority for its abusive
exercise. Except as to petitioners Eusebio Campillo and
Jose Gonzales, we agree with the lower court that
respondent mayor committed a grave abuse of discretion in
refusing to issue promotional appointments to petitioners. As
of March, 1959, their average length of service spanned
more than 22 years individually ranging from 12 to 34 years
(Exhibit "AA"). Of petitioners, seven (7) received the same
rate that they had prior to their illegal dismissal, and while
Ruben del Rosario, Eduardo Advincula and Gorgonio
Mariano now receive more than what they did prior to
dismissal, it is still short of that provided in the present salary
scale (Exhibit "M"). And yet, almost all of petitioners'
efficiency ratings have consistently been well above 85%,
from the semester ending December, 1955 to December,
1958, except as to Campillo and Gonzales, who appear to
have obtained ratings much below 85% in many semesters
covered by the period. As to the rest, their ratings, as
observed, have been well above 85%, even during the
semester ending June, 1952, prior to their illegal separation
from the service (the rating of Meneses for the semester
preceding his illegal dismissal was not available, but this is
not essential because his record upon reinstatement shows
ratings above 85%).
No evidence of any pending administrative or criminal
charges exists against almost all of petitioners at the time

the ordinances providing for increased salaries took effect

and up to the present. Mariano and Gesolgon appear to
have had pending administrative cases on the effectivity of
said ordinances, but these were dismissed on November 14,
1955 and October 3, 1956, respectively. Saldaa was
charged only on October 28, 1958, and even this stood as
dismissed as of March 24, 1959 (Exhibit "FF"). Clearly, these
dismissed charges could not have been valid impediments to
promotion.
In fact, however, it is undisputed, and the records abundantly
show, that promotional appointments were extended to
others who either had a pending case (Exhibits "EE"; "CC")
or against whom there were records of administrative
charges subsequently dropped (Exhibits "EE"; "CC"; "CC-3"
"CC-4"; "CC-5"; "CC-6"; "CC-7"; "CC-9"; "CC-12"; "CC-13";
"CC-15"). All of which show that even respondent mayor did
not consider dismissed charges an impediment to promotion.
Petitioners' previous dismissal, which by court decisions
were all held to have been illegally effected, should not also
bar their promotion. Moreover, promotions have also been
given to at least two policemen, who, along with petitioners,
had been illegally dismissed but subsequently reinstated,
and who now receive the rates established in the present
salary scale (Exhibits "E"; "Y"; "Z"; par. 15, Stipulation.)
The circumstances under which petitioners have been
refused promotional appointments show discrimination.
Promotions in the civil service, while a discretionary function
of the appointing power, must never be based on
considerations alien to the fitness of the employee and his
performance of his job as shown by records. Integrity in
public service, as a goal yet to be achieved, demands that
government employees must not become parasitic pawns of
a whimsical bureaucracy. To tolerate these tendencies is to
sanction further demoralization of the public service and to
encourage practices that would undermine faith in popular
government. At bar is a case where, to correct a gross abuse
of discretion, a palpable excess of authority resulting in
manifest in justice, mandamus will lie (See Villanueva v.
Araneta, et al., 47 Phil. 836; Tavera-Luna, Inc. v. Nable, 67
Phil. 340; Antiquiera v. Baluyot, et al., L-3818, May 5, 1952.)
What clearly reveals the arbitrary and discriminatory nature
of respondent mayor's conduct is his refusal or failure to give
any plausible reason for denying increased salaries to
petitioners who are civil service personnel. Neither here nor
in the court below has he attempted to justify his keeping
their salaries at such a level that a lieutenant (Gesolgon) still
receives the same pay that is now that of a sergeant. Such
arbitrariness can not constitute legal discretion.
But while petitioners have shown themselves entitled to
promotions (except Campillo and Gonzales whose ratings in
many semesters fall below 85%), we see no reason for
ordering the payment to them of back salaries. Section 256

of the Revised Administrative Code is explicit in laying down

the appointments are not to take effect prior to the date of
appointment, unless so provided by the Head Department
for exceptional reasons. Moreover, petitioners themselves
aver that these appointments have yet to be passed upon
and approved by the Office of the President thru proper
channels. To order payment of back salaries is to impose on
a co-equal branch of the government.
WHEREFORE, the appealed decision is set aside; and
another is entered ordering the issuance of promotional
appointments to herein petitioners (except Eusebio Campillo
and Jose C. Gonzales), within the limits allowed by law and
the pertinent rules and regulations, effective from date of
appointment; and, without delay, to forward these
appointments to the proper authorities for approval pursuant
to law. Without costs.

DECISION
MENDOZA, J.:
This case involves the appointment and transfer of
career executive service officers (CESOs). More specifically,
it concerns the appointment of respondent Josefina G.
Bacal, who holds the rank of CESO III, to the position of
Chief Public Attorney in the Public Attorneys Office, which
has a CES Rank Level I, and her subsequent transfer, made
without her consent, to the Office of the Regional Director of
the PAO.
In its decision[1] rendered on March 25, 1999, the
Court of Appeals declared respondent Josefina G. Bacal
entitled to the position of Chief Public Attorney in the Public
Attorneys Office. Petitioners moved for a reconsideration,
but their motion was denied by the appeals court in its
resolution dated July 22, 1999. Hence this petition for review
on certiorari. Petitioners contend that the transfer of
respondent to the Office of the Regional Director of the PAO
is appropriate considering her rank as CESO III.
The background of this case is as follows:
Respondent Josefina G. Bacal passed the Career
Executive Service Examinations in 1989. On July 28, 1994,
she was conferred CES eligibility and appointed Regional
Director of the Public Attorneys Office. On January 5, 1995,
she was appointed by then President Fidel V. Ramos to the
rank of CESO III. On November 5, 1997, she was
designated by the Secretary of Justice as Acting Chief Public
Attorney. On February 5, 1998, her appointment was
confirmed by President Ramos so that, on February 20,
1998, she took her oath and assumed office.

[G.R. No. 139382. December 6, 2000]

THE SECRETARY OF JUSTICE SERAFIN R. CUEVAS,
EXECUTIVE
SECRETARY
RONALDO
B.
ZAMORA,
and
ATTY.
CARINA
J.
DEMAISIP, petitioners, vs. ATTY. JOSEFINA G.
BACAL, respondent.

On July 1, 1998, petitioner Carina J. Demaisip was

appointed chief public defender by President Joseph
Estrada. Apparently because the position was held by
respondent, another appointment paper was issued by the
President on July 6, 1998 designating petitioner Demaisip as
chief public defender (formerly chief public attorney),
PUBLIC DEFENDER'S OFFICE, DEPARTMENT OF
JUSTICE vice ATTY. JOSEFINA G. BACAL, effective July 1,
1998.[2] On the other hand, respondent was appointed
Regional Director, Public Defenders Office by the President.
On July 7, 1998, petitioner Demaisip took her oath of
office. President Estrada then issued a memorandum, dated

July 10, 1998, to the personnel of the Public Defenders

Office announcing the appointment of petitioner Demaisip as
CHIEF PUBLIC DEFENDER. Petitioner Secretary of Justice
was notified of the appointments of petitioner Demaisip and
respondent Bacal on July 15, 1998.
On July 17, 1998, respondent filed a petition for quo
warranto questioning her replacement as Chief Public
Attorney. The petition, which was filed directly with this
Court, was dismissed without prejudice to its refiling in the
Court of Appeals.Accordingly, respondent brought her case
in the Court of Appeals which, on March 25, 1999, ruled in
her favor, finding her to be lawfully entitled to the Office of
Chief Public Attorney.
Petitioners seek the reversal of the decision of the
Court of Appeals on the following grounds
I. THE COURT OF APPEALS ERRED IN
RULING THAT RESPONDENT JOSEFINA
G. BACAL, A CAREER EXECUTIVE
SERVICE OFFICER, HAS A VALID AND
VESTED RIGHT TO THE POSITION OF
CHIEF PUBLIC ATTORNEY AND, AS
SUCH, CANNOT BE REASSIGNED OR
TRANSFERRED TO THE POSITION OF
REGIONAL
DIRECTOR,
PUBLIC
ATTORNEYS OFFICE, DEPARTMENT OF
JUSTICE.
II. THE COURT OF APPEALS ERRED IN
RULING THAT RESPONDENT BACAL,
WHO HOLDS A CES RANK LEVEL III, WAS
REASSIGNED OR TRANSFERRED TO A
POSITION
WHICH
DOES
NOT
CORRESPOND TO HER PRESENT RANK
LEVEL INASMUCH AS THE POSITION OF
BUREAU REGIONAL DIRECTOR CARRIES
A CES RANK LEVEL V ONLY. CONTRARY
TO THE CONCLUSIONS OF THE COURT
OF APPEALS, SAID POSITION OF
REGIONAL
DIRECTOR,
PUBLIC
ATTORNEYS OFFICE, THE POSITION TO
WHICH RESPONDENT BACAL WAS
REASSIGNED
OR
TRANSFERRED,
CARRIES A CES RANK LEVEL III WHICH
CORRESPONDS TO HER CES RANK III
LEVEL. AS AN OFFICER WITH A RANK III
LEVEL, RESPONDENT BACAL IS NOT
THEREFORE
ELIGIBLE
FOR
THE

POSITION OF CHIEF PUBLIC ATTORNEY

WHICH CARRIES A CES RANK LEVEL I.
III. UPON
HER
REASSIGNMENT
OR
TRANSFER TO THE POSITION OF
REGIONAL DIRECTOR, RESPONDENT
BACAL DID NOT LOSE HER CES RANK III
AND HER RIGHT TO RECEIVE THE
SALARY CORRES-PONDING TO HER
PRESENT RANK.
IV. RESPONDENT BACAL FAILED TO SHOW
THAT SHE HAS A CLEAR RIGHT TO THE
POSITION OF CHIEF PUBLIC ATTORNEY.
V. RESPONDENT BACAL FAILED TO FULLY
EXHAUST
THE
ADMINISTRATIVE
REMEDIES AVAILABLE TO HER BEFORE
FILING THE PETITION FOR QUO
WARRANTO WITH THE COURT OF
APPEALS.[3]

consent, amounts to a removal without cause. This brings us

to the main issue in this appeal.
II. Merits of the Case
In holding that respondents transfer amounted to a
removal without cause, the Court of Appeals said:
. . . Her appointment as Regional Director was in effect a
removal in the guise of transfer, to repeat, without her
consent. Having been validly appointed Chief Public
Defender by the President on February 8, 1998, would
naturally entitle her to security of tenure since on the basis of
the appointment, she was appointed, not merely assigned, to
a particular station. Her involuntary transfer, through
appointment, to that of a mere Regional Director, did not
either conform to the rules on the constitutional protection of
security of tenure. Above all, her supposed appointment as a
Regional Director is not only temporary but is on the other
hand permanent wherein she lost her position as Chief
Public Attorney, or her connection with the previous position
being severed.

I. Exhaustion of Administrative Remedies

....
We first consider petitioners contention that
respondents quo warranto suit should have been dismissed
for failure of respondent to exhaust administrative remedies
by appealing to the Office of the President.
The contention has no merit. If, as has been held, no
appeal need be taken to the Office of the President from the
decision of a department head because the latter is in theory
the alter ego of the former,[4] there is greater reason for not
requiring prior resort to the Office of the President in this
case since the administrative decision sought to be reviewed
is that of the President himself. Indeed, we have granted
review in other cases involving the removal of the
Administrator of the Philippine Overseas Employment
Administration[5] and the Executive Director of the Land
Transportation Office[6] without requiring the petitioners to
exhaust administrative remedies considering that the
administrative actions in question were those of the
President.
In any event, the doctrine of exhaustion of
administrative remedies does not apply when the question
raised is purely legal.[7] In this case, the question is whether
respondents transfer to the position of Regional Director of
the Public Attorneys Office, which was made without her

In the case of the petitioner, there is certainly a diminution in

duties and responsibilities when she was downgraded
through the July 6, 1998 appointment, involuntarily made,
from that of Chief Public Attorney to a mere Regional
Director. To repeat, the rank equivalent to a Bureau Director
is Rank III while that of a mere Bureau Regional Director is
Rank V. Diminution in duties and responsibilities, certainly
becomes apparent and then in the matter of salary, the basic
salary of a Chief Public Attorney together with all the perks,
would amount to P575,199.00. In the case of a Regional
Director, his basic salary together with all the perks, would
only amount to P341,479.96. Admittedly, when a CESO is
assigned or made to occupy a position with a lower salary
grade, he shall supposedly continue to be paid his salary
that attaches to his CES rank. It cannot, on the other hand,
be denied that the moment a non-CESO is appointed to a
CES position, he shall receive, at the same time, the salary
of his CES position. There is merit in the petitioners
argument that allowing the Regional Director to receive
continuously the salary rate of Chief Public Attorney in effect
would amount to an illegal consequence since the
disbursement of public funds, as budgeted, provides funding
for only one Chief Public Attorney. The dilemma arises when
both the petitioner and respondent Demaisip would be

claiming the salary of a Chief Public Attorney. There is no

pretension either in the Brief of the public respondents that
there has been a supplemental budget for the petitioner, now
downgraded to a mere Regional Director, to be receiving
continuously the salary scale of a Chief Public Attorney.
....
Changing a CESO, Rank III, with a non-CESO eligible nor a
CESO defies the recruitment, selection and appointment
process of the Career Executive Service. As a matter of fact,
as a rule (1997 Revised Edition, Handbook, Career
Executive Service), the appointment to most positions in the
CES is supposed to be made by the President only from the
list of CES eligibles, but recommended by the CES
Board. Admittedly, an incumbent of a CES position may
qualify for appointment to a CES rank, only upon the
confirming of a CES Eligibility and compliance with the other
requirements being prescribed by the Board (Ibid. p.
5). Precisely, the CES was created pursuant to PD No. 1
(adopting the Integrated Reorganizational Plan, dated
September 24, 1972), if only to form a continuing pool of
well-selected
and
development-oriented
career
administrators who shall provide competent and faithful
service (Ibid. p. 2). We cannot see this from that of the
petitioner then being replaced by a non-CESO.[8]
The appealed decision will not bear analysis.
First. What should be emphasized in this case is that
respondent Josefina G. Bacal is a CESO III and that the
position of Regional Director of the PAO, to which she was
transferred, corresponds to her CES Rank Level III and
Salary Grade 28.This was her position before her
appointment on February 5, 1998 to the position of Chief
Public Attorney of the PAO, which requires a CES Rank
Level I for appointment thereto. Respondent Bacal therefore
has no ground to complain. She may have been considered
for promotion to Rank I to make her appointment as Chief
Public Attorney permanent. The fact, however, is that this did
not materialize as petitioner Carina J. Demaisip was
appointed in her place. If respondent was paid a salary
equivalent to Salary Grade 30 while she was holding that
office, it was only because, under the law, if a CESO is
assigned to a position with a higher salary grade than that
corresponding to his/her rank, he/she will be allowed the
salary of the CES position.

As respondent does not have the rank appropriate for

the position of Chief Public Attorney, her appointment to that
position cannot be considered permanent, and she can claim
no security of tenure in respect of that position. As held
inAchacoso v. Macaraig:[9]
It is settled that a permanent appointment can be issued only
to a person who meets all the requirements for the position
to which he is being appointed, including the appropriate
eligibility prescribed. Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And
being so, it could be withdrawn at will by the appointing
authority and at a moments notice, conformably to
established jurisprudence. . . .
The mere fact that a position belongs to the Career Service
does not automatically confer security of tenure on its
occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of
his appointment, which in turn depends on his eligibility or
lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the
first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of
appropriate eligibles. The appointment extended to him
cannot be regarded as permanent even if it may be so
designated. . . .
It is contended, however, that respondent is qualified
for the position of Chief Public Attorney because this position
has a CES Rank Level III, while that of Regional Director,
Public Attorneys Office, has a CES Rank Level V. This is not
so. The position of Chief Public Attorney has a CES Rank
Level I and a Salary Grade 30, while that of Regional
Director of the PAO has a CES Rank Level III and a Salary
Grade 28. This is shown by the following:[10]
1. Certification, dated April 6, 1999, issued by
the Secretary of the Department of Budget
and Management (DBM), which states that
the position of the head of Public Attorneys
Office (PAO) is classified as Chief Public
Attorney at Salary Grade 30 (Annex A of
Annex M, Petition).
2. Certification, dated April 15, 1999, issued by
Elmor D. Juridico, then Executive Director of
the CES Board, which states that the Rank
equivalent to the position of Chief Public

Attorney and Regional Public Attorney are

CESO Rank I and CESO Rank III
respectively (Annex B of Annex M, Petition);
and
3. Certification, dated July 8, 1998, previously
issued to respondent Bacal by then
Executive Director Juridico of the CES
Board, stating that the position of Chief
Public Attorney has a CES rank equivalent
of Rank I. (vide Annex C of Annex M,
Petition). The certification reads:
This is to certify that Atty. JOSEFINA G. BACAL, Chief Public
Attorney, Public Attorneys Office was conferred CES
Eligibility on July 28, 1994 per Board Resolution No. 94-4620
and was appointed Career Executive Service Officer (CESO)
Rank III by then President Fidel V. Ramos on January 5,
1995. She is yet to fulfill the requirements for an adjustment
of her CES rank (from CES Rank III to Rank I) to a level
equivalent to her present position.
This certification is issued upon the request of Atty. Bacal for
whatever purpose it may serve best.
Second. The Court of Appeals held that respondent
Bacal had acquired security of tenure as Chief Public
Attorney by the mere fact of her appointment to that
position. This is likewise the point of the dissent of Justice
Gonzaga-Reyes who contends that a CES eligibility is all
that a person needs in order to acquire security of tenure in
any position embraced in the Career Executive service; that
a CESO rank is only necessary to differentiate a CESOs
general
managerial
duties/responsibilities,
personal
qualifications, and demonstrated competence; and that no
other CES examination is required for appointment to a
higher rank.
Appointments, assignments, reassignments, and
transfers in the Career Executive Service are based on
rank. On this point, the Integrated Reorganization Plan
cannot be any clearer. It provides:[11]

appointments to the higher ranks which

qualify the incumbents to assignments as
undersecretary and heads of bureaus and
offices and equivalent positions shall be with
the confirmation of the Commission on
Appointments. The President may, however,
in exceptional cases, appoint any person
who is not a Career Executive Service
eligible; provided that such appointee shall
subsequently take the required Career
Executive Service examination and that he
shall not be promoted to a higher class until
he qualifies in such examination.
At the initial implementation of this Plan, an
incumbent who holds a permanent
appointment to a position embraced in the
Career Executive Service shall continue to
hold his position, but may not advance to a
higher class of position in the Career
Executive Service unless or until he qualifies
for membership in the Career Executive
Service.
....
e. Assignments,
Reassignments
and
Transfers. Depending upon their ranks,
members of the Service shall be assigned to
occupy
positions
of
Undersecretary,
Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director,
Assistant Regional Director, Chief of
Department Service and other officers of
equivalent rank as may be identified by the
Board on the basis of the members
functional expertise. . . .
The rules and regulations promulgated by the CES
Board[12] to implement the Integrated Reorganization Plan
are equally clear in providing that
Career Executive Service Eligibility

c. Appointment. Appointment to appropriate

classes in the Career Executive Service
shall be made by the President from a list of
career executive eligibles recommended by
the Board. Such appointments shall be
made on the basis of rank; provided that

Passing the CES examination entitles the examinee to a

conferment of a CES eligibility and the inclusion of his name
in the roster of CES eligibles. Conferment of CES eligibility is
done by the Board through a formal Board Resolution after

an evaluation of the examinees performance in the four

stages of the CES eligibility examinations.

Director or a Department Regional

Director

....
if comparable to that of an Assistant IV
Appointment to CES Rank

rank, she cannot be transferred to any other office to which

her rank (CESO III) qualifies her. This theory of the
dissent, i.e., that a CES eligibility gives the appointee
security of tenure - not the ruling in this case that it is
appointment to the appropriate rank that confers security of
tenure - is what will undermine the Career Executive
Service.

Bureau Director, Department

Upon conferment of a CES eligibility and compliance with
the other requirements prescribed by the Board, an
incumbent of a CES position may qualify for appointment to
a CES rank. Appointment to a CES rank is made by the
President upon the recommendation of the Board. This
process completes the officials membership in the CES and
most importantly, confers on him security of tenure in the
CES.

Assistant Regional Director or

Department Service Chief
if comparable to that of a Bureau V
Regional Director

There are six (6) ranks in the CES ranking structure. The
highest rank is that of a Career Executive Service Officer I
(CESO I), while the lowest is that of CESO VI.
The appropriate CESO rank to which a CES eligible may be
appointed depends on two major qualification criteria,
namely: (1) level of managerial responsibility; and, (2)
performance.
Performance is determined by the officials performance
rating obtained in the annual CESPES. On the other hand,
managerial responsibility is based on the level of the general
duties and responsibilities which an eligible is performing, as
follows:
Levels of Duties and Rank Equivalent
Responsibilities
if level of managerial responsibilities I
are comparable to that of an Under-

if comparable to that of a Bureau VI

Assistant Regional Director
As a general rule, a CES eligible will be recommended for
appointment to the rank equivalent of the level of his
managerial responsibility if his performance rating
is Satisfactory or
higher. If
the
performance
rating
is Outstanding, he will be recommended one rank higher
than his level of managerial responsibility.
Security of tenure in the career executive service is
thus acquired with respect to rank and not to position. The
guarantee of security of tenure to members of the CES does
not extend to the particular positions to which they may be
appointed a concept which is applicable only to first and
second-level employees in the civil service but to the rank to
which they are appointed by the President. Accordingly,
respondent did not acquire security of tenure by the mere
fact that she was appointed to the higher position of Chief
Public Attorney since she was not subsequently appointed to
the rank of CESO I based on her performance in that
position as required by the rules of the CES Board.

secretary
if comparable to that of an Assistant II
Secretary
if comparable to that of a Bureau III

Indeed, to contend, as does the dissent of Justice

Gonzaga-Reyes, that a CES eligibility was all that was
required to make her appointment to the position of Chief
Public Attorney permanent would give rise to an anomalous
situation. Following such theory, even if respondent is not
appointed CESO I because her performance as Chief Public
Attorney does not warrant her appointment to such higher

Third. Within the Career Executive Service, personnel

can be shifted from one office or position to another without
violation of their right to security of tenure because their
status and salaries are based on their ranks and not on their
jobs. To understand this, it is necessary to consider the
reason for the creation of the Career Executive Service.
R.A. No. 5435,[13] as amended by R.A. Nos. 6076,
6172, and 6175, created a commission charged with the
specific function of reorganizing the government to promote
simplicity, economy, and efficiency in its operations. The
result was the preparation of the Integrated Reorganization
Plan which was adopted and declared part of the law of the
land by P.D. No. 1 on September 24, 1972. A major feature
of the Integrated Reorganization Plan was the creation of the
Career Executive Service whose justification was explained
by the Commission on Reorganization, thus:
The present Civil Service system is not geared to meet the
executive manpower needs of the government. The filling of
higher administrative positions is often based on
considerations other than merit and demonstrated
competence. The area of promotion is currently confined to
the person or persons next-in-rank in the agency. Moreover,
personnel classification and compensation are uniformly
based on concepts and procedures which are suited to
positions in the lower levels but not to managerial posts in
the higher levels. To fill this crucial gap, it is recommended
that a Career Executive Service be established. This group
of senior administrators shall be carefully selected on the
basis of high qualifications and competence.Skilled in both
techniques and processes of management, these career
executives will act as catalysts for administrative efficiency
and as agents of administrative innovation.
The status and salary of the career executives will be based
on their rank, and not on the job that they occupy at any
given time . . . . In this sense, the rank status of the Career
Executive Service is similar to that of the commissioned
officers in the Armed Forces or members of the Foreign
Service. Unlike these latter organizations, however, entrance
to the Career Executive Service will not be generally at an

early age in a relatively junior level but at a senior

management level.

Should he be assigned or made to occupy a CES position

with a lower salary grade, he shall continue to be paid the
salary attached to his CES rank.[15]

....
The rank classification in the Service will allow for mobility or
flexibility of assignments such that the government could
utilize the services or special talents of these career
executives wherever they are most needed or will likely
create the greatest impact. This feature is especially relevant
in a developing country which cannot afford to have its
scarce executive manpower pegged to particular positions.
Mobility and flexibility in the assignment of
the better to cope with the exigencies of public
thus the distinguishing feature of the Career
Service. To
attain
this
objective,
the
Reorganization Plan provides:[14]

personnel,
service, is
Executive
Integrated

e. Assignments, Reassignments and Transferees. . . .

Any provision of law to the contrary
notwithstanding, members of the Career
Executive Service may be reassigned or
transferred from one position to another and
from one department, bureau or office to
another; provided that such reassignment or
transfer is made in the interest of public service
and involves no reduction in rank or
salary; provided, further, that no member shall
be reassigned or transferred oftener than every
two years; and provided, furthermore, that if the
officer
concerned
believes
that
his
reassignment or transfer is not justified, he may
appeal his case to the President.
The implementing rules and regulations of the CES
Board provide:
Salary of Career Executive Service Officers. A CESO is
compensated according to his CES rank and not on the
basis of the CES position he occupies. However, if a CESO
is assigned to a CES position with a higher salary grade than
that of his CES rank, he is allowed to receive the salary of
the CES position.

Petitioners are, therefore, right in arguing that

respondent, as a CESO, can be reassigned from one CES
position to another and from one department, bureau or
office to another. Further, respondent, as a CESO, can even
be assigned or made to occupy a CES position with a lower
salary grade. In the instant case, respondent, who holds a
CES Rank III, was correctly and properly appointed by the
appointing authority to the position of Regional Director, a
position which has a corresponding CES Rank Level III.[16]
Indeed, even in the other branches of the civil service,
the rule is that, unless an employee is appointed to a
particular office or station, he can claim no security of tenure
in respect of any office. This rule has been applied to such
appointments as Director III or Director IV or Attorney IV or V
in the Civil Service Commission since the appointments are
not to specified offices but to particular ranks;[17] Election
Registrars;[18] Election Officers, also in the Commission on
Elections;[19] and Revenue District Officers in the Bureau of
Internal Revenue.[20] Reiterating the principle in Sta. Maria
v. Lopez,[21] this Court said:
. . . [T]he rule that outlaws unconsented transfers
as anathema to security of tenure applies only to an officer
who is appointed - not merely assigned - to a particular
station. Such a rule does not proscribe a transfer carried out
under a specific statute that empowers the head of an
agency to periodically reassign the employees and officers in
order to improve the service of the agency. The use of
approved techniques or methods in personnel management
to harness the abilities of employees to promote optimum
public service cannot be objected to. . . .
For the foregoing reasons, we hold that respondents
appointment to the position of Chief Public Attorney was
merely temporary and that, consequently, her subsequent
transfer to the position of Regional Director of the same
office, which corresponds to her CESO rank, cannot be
considered a demotion, much less a violation of the security
of tenure guarantee of the Constitution.
Fourth. On the other hand, Justice Puno makes much
of the fact that petitioner Carina J. Demaisip is not a CES
eligible. Suffice it to say the law allows in exceptional cases
the appointment of non-CES eligibles provided that the

appointees subsequently pass the CES Examinations. Thus

Part III, Chap. I, Art. IV, par. 5(c) of the Integrated
Reorganization Plan provides that the President may, in
exceptional cases, appoint any person who is not a Career
Executive Service eligible; provided that such appointee
shall subsequently take the required Career Executive
Service examination and that he shall not be promoted to a
higher class until he qualified in such examination.
For the same reason that the temporary appointment
of respondent Josefina G. Bacal as Chief Public Attorney is
valid under this provision of the law despite the fact that she
does not hold the rank of CESO I, so is the appointment to
the same position of petitioner Carina J. Demaisip. The
question in this case is not the validity of the appointment to
such position but whether the appointee acquires security of
tenure even if he does not possess the requisite rank. There
is no claim that petitioner Demaisip has a right to remain in
the position of Chief Public Attorney permanently.
On the other hand, as respondent herself does not
have the requisite qualification for the position of Chief
Public Attorney, she cannot raise the lack of qualification of
petitioner. As held in Carillo v. Court of Appeals,[22] in a quo
warranto proceeding the person suing must show that he
has a clear right to the office allegedly held unlawfully by
another. Absent that right, the lack of qualification or
eligibility of the supposed usurper is immaterial.[23] Indeed,
this has been the exacting rule[24] since it was first
announced, 95 years ago, in Acosta v. Flor.[25] As at
present embodied in Rule 66, 5 of the Rules of Civil
Procedure, the rule is that a person claiming to be entitled to
a public office or position usurped or unlawfully held or
exercised by another may bring an action therefor in his own
name.
WHEREFORE, the decision of the Court of Appeals is
REVERSED and the petition for quo warranto filed by
respondent is DISMISSED.
SO ORDERED.

G.R. No 94070 April 10, 1992

ROSALINDA
DE
PERIO
SANTOS, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG and
SECRETARY RAUL MANGLAPUS, respondents.
GRIO-AQUINO, J.:
This is a petition for certiorari* seeking to set aside
Administrative Order No. 122 of the Office of the President,
finding the petitioner guilty of dishonesty and meting upon
her, after appreciating certain mitigating circumstances in her
favor, the penalty of reprimand with a warning that a
repetition of the same or similar offense will be dealt with
more severely. The President affirmed Assignment Order No.
58/88 dated April 27, 1988 of the Secretary of Foreign Affairs
recalling the petitioner to the home office from her post as
permanent representative to the Philippine Mission to the
United Nations and other International Organizations
(MISUNPHIL, for short) in Geneva, Switzerland (pp. 8499, Rollo).
Petitioner Rosalinda de Perio-Santos, a career service
officer with the rank of Chief of Mission II and Ambassador
Extraordinary and Plenipotentiary, was appointed on July 24,
1986, by her Excellency, President Corazon C. Aguino, to
the position of Permanent Representative of the Philippines
to the Philippine Mission to the United Nations and other
International Organizations with station in Geneva,
Switzerland (Annexes A and B, pp. 33-34,Rollo).
On April 6, 1987, petitioner sought a leave of absence from
the Department of Foreign Affairs (DFA) to spend the Easter
Holidays in New York, U.S.A., with her mother, brothers and
sisters at no expense to the Government (p. 84, Rollo). She
bought two (2) non-transferable, non-refundable discounted
tickets costing SFr. 1,597 for herself and her adopted
daughter Pia.
Before they could leave Geneva, petitioner received
instructions from the home office directing her to proceed to
Havana as a member of the Philippine delegation to the
UNCTAD G-77 Preparatory Conference from April 20-26,
1987 (Ibid.). For the official trip outside her station, she was
entitled, under the "Foreign Service Personnel Manual on
Travel, Per Diems, and Daily Allowance Abroad,"
to SFr. 2,996 for the cost of economy roundtrip fare from
Geneva-New York-Geneva portion of her Geneva-New YorkHavana-New York-Geneva trip. (Annexes C and D, pp. 3537, Rollo) Instead of buying an economy roundtrip ticket, she
used for the Geneva-New York-Geneva portion of her trip the
two (2) discounted tickets costing only SFr. 1,597 for herself

and her daughter Pia. They left Geneva for New York en
route to Havana on April 15, 1987. On the same day, the
DFA approved her application for a leave of absence with
pay from April 27 to May 1, 1987 (Ibid.).

Committee found a prima facie case against petitioner for (1)

dishonesty; (2) violation of existing rules and regulations; (3)
incompetence and inefficiency; and (4) conduct prejudicial to
the best interest of the service.

After the Havana Conference, she and her daughter spent

her vacation leave in New York before returning to Geneva
(Ibid.).

Ambassador Eduardo Rosal also charged her with estafa

before the Tanodbayan. The case was dismissed for
insufficiency of evidence (p. 87, Rollo).

Instead of claiming reimbursement for SFr. 2,996, she

requested, and received, reimbursement of only SFr. 1,597
which she spent for the Geneva to New York, and New York
to Geneva portion of her trip, thereby effecting savings of
SFr.1,399 for the Government (p.35, Rollo).

On November 23, 1987, DFA recalled her to Manila for

consultation. She came home on November 29, 1987 (p.
86, Rollo).

On September 16, 1987, the DFA sent her a cable (GE202/87) requesting clarification on "why Mission paid for
plane ticket of infant Pia de Perio-Santos (petitioner's
daughter) Geneva-New York-Geneva per CV 216/87 when
she was not authorized to accompany her adopting mother
at government expense.(Ibid.)
Petitioner replied that the air fare tickets were for her only
and did not include her daughter whose trip was paid from
her personal funds (p. 86, Rollo).
On September 21, 1987, the DFA required her to refund the
amount representing her daughter's round-trip ticket since
DFA received a copy of the "facture" from the travel agency
showing that the amount of SFr.1,597 was in payment of (a)
1 billet adulte-Geneva/New York/Geneva SFr. 950, and (b) 1
billet enfant-Geneva/New York/Geneva SFr. 673; and that
the sum of SFr. 673 represented the cost of her daughter's
portion of the ticket (p. 86, Ibid.).
Instead of refunding only the sum of Sfr. 673 to the
Government, petitioner returned the full amount of SFr.1,597
(Annex E, pp. 38 and 86, Rollo). She thereafter claimed
payment for one round-trip economy plane ticket (GenevaNew York-Geneva) in the amount of SFr. 2,996 to which she
was entitled under the Foreign Service Personnel Manual on
Travel, Per Diems and Daily Allowance Abroad.
On October 5, 1987, Deputy Armando Maglaque, and some
MISUNPHIL employees filed administrative charges against
her for "incompetence; inefficient; corrupt and dishonest
activities; rude and uncouth manners; abusive and highhanded behavior; irregular and highly illegal transactions
involving funds of the mission." The charges were referred to
Ambassador Luis Ascalon for initial investigation (Comment,
p. 182, Rollo). Petitioner explained the circumstances of the
purchase of the discounted tickets. On November 26, 1987,
Ambassador Ascalon submitted his findings which, with the
complaints, were referred to a 5-man Ad Hoc Investigation
Committee for preliminary investigation (p. 86, Rollo). The

On March 17, 1988, the Board of Foreign Service

Administration (BFSA) constituted a new 5-man investigating
committee to evaluate the evidence presented by the
parties.
Three (3) members of the committee, (Atty. Pineda and
Ambassadors Pastores and Garrido) found her liable
formisconduct only, and recommended dismissal of the other
charges. They also recommended that she be reprimanded
and recalled to Manila. Ambassador Arague dissented with
respect to the penalty, which he thought should include a sixmonth suspension. Atty. De Vera found all the
charges against Ambassador de Perio-Santos "to be
unmeritorious." (pp. 87-88, Rollo.)
The BFSA met en banc on April 22, 1988 to consider the
memorandum-report of the new Investigating Committee. On
April 26, 1988, the BFSA, through its Chairman,
Undersecretary Jose D. Ingles, submitted a memorandum to
the Secretary of Foreign Affairs (SFA), adopting the findings
and recommendations of the investigating committee.
In a letter-decision dated April 27, 1988 (p. 50, Rollo), the
Secretary of Foreign Affairs affirmed the BFSA's
recommendation declaring Ambassador de Perio-Santos
guilty of the lesser offense of misconduct, instead of
dishonesty, meted to her the penalty of reprimand, and
recalled her to the home office.
Petitioner filed a motion for reconsideration on the ground
that she was denied due process when she was declared
guilty of misconduct although it was not one of the charges
against her. Conceding that point, the Secretary ordered the
records remanded to the BFSA for hearing to give petitioner
an opportunity to defend herself against the charge of
misconduct which was deemed to have been filed by the
Secretary himself since an administrative complaint can be
initiated directly by the Department Head (Sec. 37[b], P.D.
807) (p. 91, Rollo).

Insisting that no formal charge of misconduct had been filed

against her, and that hence, there was nothing to investigate
(p. 91, Rollo), petitioner refused to attend the hearing.
Consequently, in his resolution of August 18, 1988,
Secretary Manglapus declared his decision of April 27, L988,
"final and executory, effective immediately." (Annex Q, p.
72, Rollo)
Petitioner appealed that resolution to the Office of the
President, where it was docketed as O.P. Case No. 3903 (p.
91, Rollo).
On January 24, 1989, President Aquino nominated Narcisa
L. Escaler as Ambassador and Permanent Representative to
the United Nations and other International Organizations in
Geneva in lieu of the petitioner. The nomination was
confirmed by the Commission on Appointments on March
15, 1989 (pp. 191, 224, Rollo).
On March 30, 1989, President Aquino issued Administrative
Order No. 122 (Annex S, pp. 84-99, Rollo) finding petitioner
guilty of dishonesty (instead of misconduct) and imposed
upon her the penalty of reprimand, with recall to the home
office.
The finding of dishonesty was based on:
1. The certification which was made in
support
of
her
request
for
reimbursement of the discounted roundtrip ticket stating that "she purchased
the said round trip ticket, which consists
of two (2) one-way tickets (instead of
two roundtrip tickets), one from Geneva
to New York and the other from New
York to Geneva, as shown in the
attached receipt ('quittance') of payment
to the travel agency. Hence, she was
reimbursed, per Check No. UBS4455589 dated May 7, 1987." (p.
95, Rollo)
2. The allegation in her telex ZGE-37387 (in answer to DFA cable of
September 16, 1987) that the Geneva
Mission "never paid for the trip of
Ambassador de Perio-Santos' daughter
to Mexico which was paid from
ambassador's personal fund" (although
the DFA in fact refunded Pia's portion of
the discounted round-trip tickets from
Geneva-New
York-Geneva).
(p.
95, Rollo)

Petitioner filed a motion for reconsideration and a

supplemental memorandum and letter addressed to the
President (Annexes X, Y and Z, pp. 146-265, Rollo).
In a Resolution dated January 9, 1990 (Annex AA, pp. 166167, Rollo), respondent Executive Secretary Catalino
Macaraig, Jr., by authority of the President, denied the
motion for reconsideration.
In due time she filed this petition for certiorari alleging that
the President's "reprimand and recall orders are not
supported by substantial evidence and were issued with
gross abuse of discretion and serious error of law" (p.
15,Rollo). The petition has merit.
The general rule is that the factual findings of administrative
agencies are binding on this Court and controlling on the
reviewing authorities if supported by substantial evidence
(Planters Products, Inc. vs. NLRC, 169 SCRA 328; Doruelo
vs. Ministry of National Defense, 169 SCRA 448). Courts of
justice will not interfere with purely administrative matters
rendered by administrative bodies within the scope of their
power and authority (Gegare vs. CA, 177 SCRA 471).
A careful review of the records fails to yield any evidence of
dishonesty on the part of the petitioner, or an intent to cheat
and defraud the government. Her failure to disclose the fact
that her discounted tickets included the fare for her child,
was harmless and inconsequential as the two (2) discounted
Geneva-New York-Geneva tickets for herself and her
daughter were in fact inseparable, intransferable, noncancellable and non-refundable, in effect one whole fare
only, for purposes of the discount. The mother and daughter
tickets were, in the words of the petitioner, "married to each
other" (p. 8, Rollo). One without the other would not have
been entitled to the discount. And if she left her daughter
behind, it would have made no difference in the fare
because the ticket was not refundable.
Using the discounted tickets was beneficial to the
Government for they cost 50% less than an economy
roundtrip ticket that the petitioner was entitled to purchase
for the same trip if she travelled alone. She obviously saved
money (SFr.1,399) for the government by using her
discounted tickets even if her daughter's fare was included
therein.
Since petitioner was moved by the best of motives in using
the discounted tickets which she had purchased before she
received the order to attend the UNCTAD conference in
Havana, her action should be commended instead of
condemned (Hernandez vs. Chairman, Commission on
Audit, 179 SCRA 39).

Petitioner's problems probably would not have arisen if

before embarking on the Havana trip she had asked DFA for
permission to use the two (2) discounted round-trip tickets
for the Geneva-New York-Geneva portion of her trip. Her
inadvertence was construed by the Government as lack of
candor and honesty on her part. The Court believes however
that she did not intend to falsify or conceal the truth when
she filed a claim for the refund of the total cost of her
discounted tickets (SFr.1,597). Her claim for the whole
discounted fare was based on the fact that her daughter's
ticket was inseparable from her own fare. They had to go
together to be entitled to the special discount. Their fare was
indivisible, hence, the Government's offer to shoulder only
the petitioner's portion of the discounted fare (SFr. 950),
excluding her daughter's portion (SFr. 647) was neither fair
nor reasonable.
In view of the DFA's objection to the refund of the entire
discounted fare to her, the petitioner returned the whole
amount of SFr.1,597 which she had earlier received from the
DFA, and asked, in return, for the cost of the regular
economy fare (SFr. 2,966) which she was legally entitled to
purchase for her trip. Thereupon, the Secretary reprimanded
her for misconduct and recalled her to the home office. On
appeal to the Office of the President, the latter ironically
found her guilty of the more serious offense of dishonesty,
reprimanded her therefor, and recalled her to Manila. We
hold that under the circumstances above narrated, the
petitioner's actuation constituted neither dishonesty nor
misconduct, hence, the reprimand that was meted to her
was unmerited.
Nevertheless, the Court is not disposed to disturb the order
of the DFA and the Office of the President recalling the
petitioner to the home office. There is no merit in the
petitioner's contention that her tour of duty in Geneva was for
four (4) years, as provided in Section 260 of P.D. No. 1578
("Instituting the Administrative Code of 1978'), thus:
(b) Tour of duty (1) The tour of duty of
a foreign service officer at any post shall
be four (4) years commencing on the
date of his arrival at the post, after which
he shall be transferred to another post.
(p. 15, Rollo)
As pointed out by the Solicitor General, P.D. 1578 was one
of those unpublished "secret" decrees which this Court
in Taada, et al. vs. Tuvera, et al., 146 SCRA 446, declared
to be inoperative or without legal force and effect. P.D. 1578
was expressly repealed on May 5, 1987, by Executive Order
No. 168, entitled "REPEALING PRESIDENTIAL DECREE
NO. 1578 ENTITLED 'INSTITUTING THE ADMINISTRATIVE
CODE OF 1978.'"

The applicable law therefore is Section 6, Part B, Title III, of

R.A. 708, "The Foreign Service Act of the Philippines,"
enacted on June 5, 1952, providing that:
Sec. 6. Assignments and Transfers A
Foreign Service Officer may be
assigned by the Secretary to serve in
the Department or in a diplomatic or
consular
post
abroad:
Provided,
however, that the minimum period
during which he may serve in any
foreign post shall be one year and the
maximum period four years, except in
case of emergency or extraordinary
circumstances, in which event he may
be tranferred from one foreign post to
another or to the Department by the
order of the Secretary without regard to
his length of service in his former post.
(Emphasis supplied; p. 202,Rollo.)
Since the petitioner had been appointed to her post on July
24, 1986, she had already served the minimum one-year
period of service when her recall on April 22, 1988 came.
Her reassignment to Manila did not have to be explained and
justified by the Secretary of Foreign Affairs nor the President
of the Philippines (p. 51, Rollo).
The presidential prerogative to determine theassignments of
the country's diplomatic personnel is unquestionable. As
discussed in the Solicitor General's "Comment" on the
petition for certiorari and prohibition
The conduct of the country's foreign affairs is
vested on the President through respondent
Manglapus as alter ego of the President. As
head of the Department of Foreign Affairs, he is
mandated by law to maintain the country's
representation with foreign governments, the
United Nations (UN), Association of Southeast
Asian Nations (ASEAN), and other international
and regional organizations. The foreign service
officers and employees abroad represent the
interest of the Philippines under the direction,
supervision and control of the Chief Executive
through respondent Secretary.
xxx xxx xxx
Considering that the conduct of foreign relations
is primarily an executive prerogative, courts
may not inquire into the wisdom or unwisdom in
the exercise thereof. This is a principle laid
down by the courts from time immemorial. The
power to conduct foreign policy and its

necessary element of assigning the, country's

representatives abroad is best addressed to the
wisdom of the executive branch and not to be
unduly interfered with by the judiciary (U.S. v.
Curtiss Wright Export Corp., 299 U.S. 304;
Missouri v. Holland, 352 U.S. 416; U.S. v.
Belmont, 301 U.S. 324; U.S. v. Pink, 315 U.S.
203; Jones v. U.S., 137 U.S. 202, 212; Oetegen
v. Central Leather Co., 246 U.S. 297, 302;
Foster v. Neilson, 2 Pet. 253, 30709; Williams v.
Suffolf Insurance Co., 13 Pet. 414, 41920; Zemel v. Rusk, 381 U.S. 17; Harisiades vs.
Shughnessy, 342 U.S. 580; Chicago Southern
Air Lines Inc. v. Loatherman S.S. Corp., 333
U.S. 103; Haig v. Agee, 453 U.S. 280). In States
which follow the principle of separation of
powers like the United States and the
Philippines, the President holds actual
executive power, including the power to conduct
foreign relations (Public International Law,
Coquia and Santiago, 1984 ed., p. 480). On
this, textwriters are nign unanimous:
The head of State, as the
State's
Chief
organ
and
representative in the totality of its
international intercourse, with the
consequence that all his, legally
relevant international acts are
considered acts of his state. Such
acts
comprises
chiefly
the
reception
and
sending
of
diplomatic agents, and consuls,
conclusion of treaties, and
recognition of states. (Ibid, p. 481,
citing Fenwick, International Law,
554 [1965], at p. 758.)
The conduct of the external
affairs of the State is an executive
prerogative. As head of the State,
the President deals with foreign
states and governments with
respect to matters relating to
entering into treaties, maintaining
diplomatic relations, extending or
withholding recognition. Chief
Justice Marshall described the
President of the United States as
the 'sole organ of the nation in its
external relations and its sole
representative
with
foreign
nations.' This apt description
likewise applies to the President
of the Philippines." (AonuevoTaro, The 1987 Constitution of the

Philippines Explained, 1989 ed.,

p. 263-264.)
Thus, the assignment to and recall from
posts of ambassadors are prerogatives
of the President, for her to exercise as
the exigencies of the foreign service and
the interests of the nation may from time
to time dictate. (pp. 204-207, Rollo.)
The petitioner's designation as the permanent representative
of the Philippine Government to the United Nations and
other International Organizations in Geneva (Annex B, p.
34, Rollo), was one based on the special trust and
confidence which the appointing power, the President, had in
the appointee. Once that trust and confidence ceased to
exist, the incumbent's continuance in the position became
untenable.
The tenure of officials holding primarily confidential positions
ends upon loss of confidence, because their term of office
lasts only as long as confidence in them endures (Corpus vs.
Cuaderno, 13 SCRA 591). When that confidence is lost and
the officer holding the position is separated from the service,
such cessation is not removal from office but merely an
expiration of his/her term (Cadiente vs. Santos, 142 SCRA
280).
An incumbent of a primarily confidential position holds office
at the pleasure of the appointing power. When the pleasure
turns into displeasure, the incumbent is not removed or
dismissed from office his term merely expires (Ingles vs.
Mutuc, 26 SCRA 171).
"Primarily confidential" denotes "not only confidence in the
aptitude of the appointee for the duties of the office but
primarily close intimacy which insures freedom of intercourse
without embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of state"
(Pinero vs. Hechanova, 18 SCRA 417; citing De los Santos
vs. Mallare, 87 Phil. 289).
It is the fact of loss of confidence, not the reason for it, that is
important and controlling. As holder of a primarily
confidential position, petitioner's foreign assignment was at
the pleasure of the President. The recall order terminating
her tour of duty in Geneva and returning her to the home
office was merely a change of post or transfer of location of
work.
Petitioner may not justifiably assail the appointment of
Narcisa Escaler as her replacement in Geneva because the
power to appoint is essentially discretionary. The appointing
power, the President, has the right of choice which she may
exercise freely, according to her best lights (Pamantasan ng

Lungsod ng Maynila vs. Court of Appeals, 140 SCRA 22).

This Court may not order the reinstatement of the petitioner
to her former position in Geneva for that would be
tantamount to a usurpation by this Court of the power of
appointment, which is the exclusive prerogative of the Chief
Executive (Article VII, Section 16, 1987 Constitution). It
would violate the system of separation of powers which
inheres in our democratic republican form of government.
The recall order issued by the Secretary of Foreign Affairs
(Assignment Order No. 58/88) was a valid exercise of his
authority as an alter ego of the President (Villena vs.
Secretary of Interior, 67 Phil. 451). His acts, "performed and
promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive
presumptively the acts of the latter (Cruz, Political Law, p.
188, 1987 Edition). His order recalling the petitioner to the
home office, having been affirmed by the President, any
doubts as to its validity and propriety have thereby been laid
to rest.
WHEREFORE, Administrative Order No. 122 of the Office of
the President, insofar as it finds the petitioner guilty of
dishonesty and reprimands her therefor, is hereby set aside.
However, the order recalling her to the home office in Manila
is affirmed. No costs.
SO ORDERED.

DULFO, Antonio 78
MARIANO, Eleuterio 79
G.R. No. 96298

May 14, 1991

RENATO
M.
LAPINID, petitioner,
vs.
CIVIL SERVICE COMMISSION, PHILIPPINE PORTS
AUTHORITY and JUANITO JUNSAY, respondents.

FLORES, Nestor 80
DE GUZMAN, Alfonso 80
VER, Cesar 80
It is thus obvious that Protestants Junsay (79.5)
and Villegas (79) have an edge over that of
protestees Lapinid (75) and Dulfo (78).

CRUZ, J.:
The issue raised in this case has been categorically resolved
in a long line of cases that should have since guided the
policies and actions of the respondent Civil Service
Commission. Disregard of our consistent ruling on this
matter has needlessly imposed on the valuable time of the
Court and indeed borders on disrespect for the highest
tribunal. We state at the outset that this conduct can no
longer be countenanced.
Petitioner Renato M. Lapinid was appointed by the Philippine
Ports Authority to the position of Terminal Supervisor at the
Manila International Container Terminal on October 1, 1988.
This appointment was protested on December 15, 1988, by
private respondent Juanito Junsay, who reiterated his earlier
representations with the Appeals Board of the PPA on May
9, 1988, for a review of the decision of the Placement
Committee dated May 3, 1988. He contended that he should
be designated terminal supervisor, or to any other
comparable position, in view of his preferential right thereto.
On June 26, 1989, complaining that the PPA had not acted
on his protest, Junsay went to the Civil Service Commission
and challenged Lapinid's appointment on the same grounds
he had earlier raised before the PPA. In a resolution dated
February 14, 1990, the Commission disposed as follows:
After a careful review of the records of the case,
the Commission finds the appeal meritorious. In
the comparative evaluation sheets, the parties
were evaluated according to the following criteria,
namely: eligibility; education; work experience;
productivity/performance/ attendance; integrity;
initiative/leadership;
and
physical
characteristics/personality traits. The results of the
evaluation are as follows:
JUNSAY, Juanito 79.5
VILLEGAS, Benjamin 79
LAPINID, Renato 75

Foregoing premises considered, it is directed that

Appellants Juanito Junsay and Benjamin Villegas
be appointed as Terminal Supervisor (SG 18) vice
protestees Renato Lapinid and Antonio Dulfo
respectively who may be considered for
appointment to any position commensurate and
suitable to their qualifications, and that the
Commission be notified within ten (10) days of the
implementation hereof.
SO ORDERED.
Upon learning of the said resolution, Lapinid, 7who claimed
he had not been informed of the appeal and had not been
heard thereon, filed a motion for reconsideration on March
19, 1990. This was denied on May 25, 1990. The Philippine
Ports Authority also filed its own motion for reconsideration
on June 19, 1990, which was denied on August 17, 1990. A
second motion for reconsideration filed on September 14,
1990, based on the re-appreciation of Lapinid's rating from
75% to 84%, was also denied on October 19, 1990.
When the petitioner came to this Court on December 13,
1990, we resolved to require Comments from the
respondents and in the meantime issued a temporary
restraining order. The Solicitor General took a stand against
the Civil Service Commission which, at his suggestion, was
allowed to file its own Comment. The petitioner filed a Reply.
The private respondent's Comment was dispensed with
when it was not filed within the prescribed period.
We see no reason to deviate from our consistent ruling on
the issue before us.
In Luego v. Civil Service Commission,1 this Court declared:
The issue is starkly simple: Is the Civil Service
Commission
authorized
to
disapprove
a

permanent appointment on the ground that

another person is better qualified than the
appointee and, on the basis of this finding, order
his replacement by the latter?
xxx

xxx

xxx

Appointment is an essentially discretionary power

and must be performed by the officer in which it is
vested according to his best lights, the only
condition being that the appointee should possess
the qualifications required by law. If he does, then
the appointment cannot be faulted on the ground
that there are others better qualified who should
have been preferred. This is a political question
involving considerations of wisdom which only the
appointing authority can decide.
xxx

xxx

xxx

Significantly, the Commission on Civil Service

acknowledged that both the petitioner and the
private respondent were qualified for the position
in controversy. That recognition alone rendered
it functus officioin the case and prevented it from
acting further thereon except to affirm the validity
of the petitioner's appointment. To be sure, it had
no authority to revoke the said appointment simply
because it believed that the private respondent
was better qualified for that would have constituted
an encroachment on the discretion vested solely in
the city mayor.
The same ruling has been affirmed, in practically the same
language as Luego, in Central Bank v. Civil Service
Commission, 171 SCRA 744; Santiago v. Civil Service
Commission, 178 SCRA 733; Pintor v. Tan, G.R. No. 84022
and G.R. No. 85804, March 9, 1989, En Banc, Minute
Resolution; Galura v. Civil Service Commission, G.R. No.
85812, June 1, 1989, En Banc, Minute Resolution; Zulueta v.
Mamangun, G.R. No. 85941, June 15, 1989, En Banc,
Minute Resolution; Remigio v. Chairman, Civil Service
Commission, G.R. No. 86324, July 6, 1989, En Banc, Minute
Resolution; Aurora Macacua v. Civil Service Commission,
G.R. No. 91520, July 31, 1990, En Banc, Minute
Resolution; Abdulwahab A. Bayao v. Civil Service
Commission, G.R. No. 92388, September 11, 1990, En
Banc, Minute Resolution; Orbos v. Civil Service Commission,
G.R. No. 92561, September 12, 1990; Alicia D. Tagaro v.
The Hon. Civil Service Commission, et al., G.R. No. 90477,
September 13, 1990, En Banc, Minute Resolution;Elenito
Lim v. Civil Service Commission, et al., G.R. No. 87145,
October 11, 1990, En Banc, Minute Resolution;Teologo v.
Civil Service Commission, G.R. No. 92103, November 8,
1990; Simpao v. Civil Service Commission, G.R. No. 85976,
November 15, 1990.

Only recently, in Gaspar v. Court of Appeals 2 this Court said:

The only function of the Civil Service Commission
in cases of this nature, according to Luego, is to
review the appointment in the light of the
requirements of the Civil Service Law, and when it
finds the appointee to be qualified and all other
legal requirements have been otherwise satisfied,
it has no choice but to attest to the
appointment. Luego finally points out that the
recognition by the Commission that both the
appointee and the protestant are qualified for the
position in controversy renders it functus officio in
the case and prevents it from acting further
thereon except to affirm the validity of the former's
appointment; it has no authority to revoke the
appointment simply because it considers another
employee to be better qualified for that would
constitute an encroachment on the discretion
vested in the appointing authority.
xxx

xxx

xxx

The determination of who among several

candidates for a vacant position has the best
qualifications is vested in the sound discretion of
the Department Head or appointing authority and
not in the Civil Service Commission. Every
particular job in an office calls for both formal and
informal qualifications. Formal qualifications such
as age, number of academic units in a certain
course, seminars attended, etc., may be valuable
but so are such intangibles as resourcefulness,
team spirit, courtesy, initiative, loyalty, ambition,
prospects for the future, and best interests, of the
service. Given the demands of a certain job, who
can do it best should be left to the Head of the
Office concerned provided the legal requirements
for the office are satisfied. The Civil Service
Commission cannot substitute its judgment for that
of the Head of Office in this regard.
It is therefore incomprehensible to the Court why, despite
these definitive pronouncements, the Civil Service
Commission has seen fit to ignore, if not defy, the clear
mandate of the Court.
We declare once again, and let us hope for the last time, that
the Civil Service Commission has no power of appointment
except over its own personnel. Neither does it have the
authority to review the appointments made by other offices
except only to ascertain if the appointee possesses the
required qualifications. The determination of who among
aspirants with the minimum statutory qualifications should be
preferred belongs to the appointing authority and not the
Civil Service Commission. It cannot disallow an appointment

because it believes another person is better qualified and

much less can it direct the appointment of its own choice.
Appointment is a highly discretionary act that even this Court
cannot compel.1wphi1 While the act of appointment may in
proper cases be the subject of mandamus, the selection
itself of the appointeetaking into account the totality of his
qualifications, including those abstract qualities that define
his personalityis the prerogative of the appointing
authority. This is a matter addressed only to the discretion of
the appointing authority. It is a political question that the Civil
Service Commission has no power to review under the
Constitution and the applicable laws.
Commenting on the limits of the powers of the public
respondent, Luego declared:
It is understandable if one is likely to be misled by
the language of Section 9(h) of Article V of the
Civil Service Decree because it says the
Commission has the power to "approve" and
"disapprove" appointments. Thus, it is provided
therein that the Commission shall have inter
alia the power to:
9(h) Approve all appointments, whether
original or promotional, to positions in
the
civil
service,
except
those
presidential appointees, members of the
Armed Forces of the Philippines, police
forces,
firemen,
and
jailguards,
and disapprove those
where
the
appointees do not possess appropriate
eligibility or required qualifications.
(Emphasis supplied)
However, a full reading of the provision, especially
of the underscored parts, will make it clear that all
the Commission is actually allowed to do is check
whether or not the appointee possesses the
appropriate civil service eligibility or the required
qualifications. If he does, his appointment is
approved; if not, it is disapproved. No other
criterion is permitted by law to be employed by the
Commission when it acts onor as the Decree
says,
"approves"
or
"disapproves'an
appointment made by the proper authorities.
The Court believes it has stated the foregoing doctrine
clearly enough, and often enough, for the Civil Service
Commission not to understand them. The bench does; the
bar does; and we see no reason why the Civil Service
Commission does not. If it will not, then that is an entirely
different matter and shall be treated accordingly.

We note with stern disapproval that the Civil Service

Commission has once again directed the appointment of its
own choice in the case at bar. We must therefore make the
following injunctions which the Commission must note well
and follow strictly.
Whatever the reasons for its conduct, the Civil Service
Commission is ORDERED to desist from disregarding the
doctrine
announced
in Luego
v.
Civil
Service
Commission and the subsequent decisions reiterating such
ruling. Up to this point, the Court has leniently regarded the
attitude of the public respondent on this matter as imputable
to a lack of comprehension and not to intentional
intransigence. But we are no longer disposed to indulge that
fiction. Henceforth, departure from the mandate of Luego by
the Civil Service Commission after the date of the
promulgation of this decision shall be considered contempt
of this Court and shall be dealt with severely, in view
especially of the status of the contemner.
While we appreciate the fact that the Commission is a
constitutional body, we must stress, as a necessary
reminder, that every department and office in the Republic
must know its place in the scheme of the Constitution. The
Civil Service Commission should recognize that its acts are
subject to reversal by this Court, which expects full
compliance with its decisions even if the Commission may
not agree with them.
The Commission on Civil Service has been duly warned.
Henceforth, it disobeys at its peril.
WHEREFORE, the petition is GRANTED. The Resolutions of
the respondent Civil Service Commission dated February 14,
1990, May 25, 1990, August 17, 1990, and October 19,
1990, are REVERSED and SET ASIDE. The temporary
restraining order dated December 13, 1990, is made
PERMANENT. No costs.
SO ORDERED.

MONTEMAYOR, J.:

When petitioner Lacson requested payment of his salary for

the period from June 16 to June 23, 1949 as provincial fiscal
of Negros Oriental, Angel Paguia, Provincial Auditor and L. J.
Alfabeto, Provincial Treasurer turned down his claim and
instead paid respondent Romero the salary for the position
of provincial fiscal from June 16, 1949, and continued paying
it to him periodically up to the present time. Their action was
based on a reply given to their query, by the Secretary of
Justice to the effect that Romero, was the provincial fiscal of
Negros Oriental. This is the reason why the Auditor and the
Treasurer of Negros Oriental were likewise made
respondents in these proceedings.

Involved in these quo warranto proceedings filed directly with

this Court is the Office of Provincial Fiscal of Negros
Oriental, and the right to said position as between the
petitioner Antonio Lacson and the respondent Honorio
Romero.

The purpose of the present action is to establish the right of

the petitioner to the post of provincial fiscal of Negros
Oriental and to oust the respondent Romero therefrom. The
petition and the memorandum in support thereof among
other things contain the following prayer:

The facts necessary for the decision in this case may be

stated as follows: Petitioner Lacson was on July 25, 1946,
appointed by the President of the Philippines, provincial
fiscal of Negros Oriental. The appointment was confirmed by
the Commission on Appointment on August 6, 1946. He took
his oath of office on August 10, 1946, and thereafter
performed the duties of that office.

(1) Recognizing the right of petitioner Antonio

Lacson to hold and occupy the position of
provincial fiscal of Negros Oriental;

G.R. No. L-3081

October 14, 1949

ANTONIO
LACSON, petitioner,
vs.
HONORIO ROMERO, ET AL., respondents. Cruz, Puno
and Lacson for petitioner.

Upon recommendation of the Secretary of Justice, on May

17, 1949, the President nominated petitioner Lacson to the
post of provincial fiscal of Tarlac. On the same date, the
President nominated for the position of provincial fiscal of
Negros Oriental respondent Romero. Both nominations were
simultaneously confirmed by the Commission on
Appointments on May 19, 1949.
Lacson neither accepted the appointment nor assumed the
office of fiscal of Tarlac. But respondent Romero took his
oath of office (the post of fiscal of Negros Oriental) in Manila
on June 16, 1949, notified the Solicitor General of the fact,
and thereafter proceeded to his station. Upon arrival at
Dumaguete City, capital of Negros Oriental, he notified
Lacson of his intention to take over the office the following
day, but Lacson objected. On June 24, 1949, Romero
appeared in criminal case No. 4433 before Judge Gregorio
S. Narvasa. In said appearance, petitioner Lacson filed his
objection and asked that Romero's appearance be stricken
from the record. After Romero had exhibited his credentials
as required by the court, Judge Narvasa on the same day
denied the petition of Lacson and recognized respondent
Romero as the provincial fiscal of Negros Oriental. On June
27, 1949, Romero appeared in Special Proceedings No. 630
before Judge Felicisimo Ocampo. Lacson again objected to
said appearance but the court overruled his objection. This
will explain why Judges Narvasa and Ocampo were made
respondents in these quo warranto proceedings.

(2) Declaring the respondent Honorio Romero

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

deliberately eased out of or removed from his post in Negros

Oriental. However, the appointments and confirmations, the
President raised the province of Negros Oriental to the
category of First Class A province with retroactive effect as of
January 1, 1949. It is alleged by respondent Romero that
after the filing of the present petition, Tarlac was likewise
raised to the category of First Class B province on July 15,
1949 so that thereafter the salary for provincial fiscal in both
province is the same, namely, P6,000 each. This might be
one of the reasons why petitioner to the Province of Tarlac,
preferring accept his nomination to the Province of Tarlac,
preferring to remain at his old post of provincial fiscal of
Negros Oriental.
The determination as to who is entitled to the position of
provincial fiscal of Negros Oriental, depends upon the
correct answers to several queries such as: (1) Did the
Commission on Appointments alone, without his acceptance
nomination of Lacson to Tarlac and its confirmation by the
thereof create a vacancy in the post of provincial fiscal of
Negros Oriental so that Romero could be lawfully appointed
to said vacancy? (2) Does the nomination of Lacson to
Tarlac and its confirmation by the Commission on
Appointments serve as and is equivalent to a removal of
Lacson as fiscal of Negros Oriental? If in the affirmative, was
that removal and lawful? (3) Could the President who
appointed Lacson as provincial fiscal of Negros Oriental
remove him at will and without cause, or did the post of
provincial fiscal in general have attached to it a tenure of
office during which the incumbent may not be removed
except for cause?
The appointment to a government post like that of provincial
fiscal to be complete involves several steps. First, comes the
nomination by the President. Then to make that nomination
valid and permanent, the Commission on Appointments of
the Legislature has to confirm said nomination. The last step
is the acceptance thereof by the appointee by his
assumption of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are acts
of the Executive and Legislative departments of the
Government. But the last necessary step to make the
appointment complete and effective rests solely with the
appointee himself. He may or he may not accept the
appointment or nomination. As held in the case of Borromeo
vs. Mariano, 41 Phil., 327, "there is no Power in this country
which can compel a man to accept an office." Consequently,
since Lacson has declined to accept his appointment as
provincial fiscal of Tarlac and no one can compel him to do
so, then he continues as provincial fiscal of Negros Oriental
and no vacancy in said office was created, unless Lacson
had been lawfully removed as Such fiscal of Negros
Oriental.
As to the second question, it is obvious that the intended
transfer of Lacson to Tarlac on the basis of his nomination
thereto, if carried out, would be equivalent to a removal from

his office in Negros Oriental. To appoint and transfer him

from one province to another would mean his removal or
separation from the first province. The reason is that a fiscal
is appointed for each province (see. 1673, Rev. Adm. Code),
and Lacson could not well and legally hold and occupy the
two posts of fiscal of Tarlac and Negros Oriental
simultaneously. To be fiscal for Tarlac must mean his
removal from Negros Oriental.
In the case of Nicolas vs. Alberto, 51 Phil., 370, this Court
held that "a transfer of a Justice of the Peace outside of the
municipality of which he is appointed is in legal effect a
combined removal and appointment." (Decision in this case
was reversed by the U. S. Supreme Court [279 U. S., 1411,
but on other grounds, leaving the doctrine on transfer and
removal undisturbed.) When the transfer is consented to and
accepted by the transferees, then there would be no
question; but where as in the present case, the transfer is
involuntary and objected to, then it is necessary to decide
whether the removal is lawful.
What is the nature of the office of provincial fiscal? Is it
included in the Civil Service? The answer is, undoubtedly, in
the affirmative. Article XII, section 1 of our Constitution
provides that "a Civil Service embracing all branches and
subdivisions of the Government shall be provided by law."
Section 668 of the Administrative Code as amended by
Com. Act No. 177, sec. 6, provides that "the Philippine Civil
Service shall embrace all branches and subdivisions of the
Government;" and section 670 of the same Code provides
that "person in the Philippine Civil Service pertain either to
the classified or unclassified service." Section 671 of the
same code as amended by Commonwealth Act No. 177,
section 8 in part provides as follows:
Sec. 671. Person embraced in unclassified.
The following officers and employees constitute
the unclassified service:.lawphi1.nt
(a) A secretary, a sergeant-at-arm, and such other
officers as may be required and chosen by the
National Assembly in accordance with the
Constitution.
(b) Officers, other than the provincial treasurers
and Assistant Directors of Bureaus or
Offices, appointed by the President of the
Philippines, with the consent of the Commission
on Appointments of the National Assembly, and all
other officers of the Government whose
appointments are by law vested in the President of
the Philippines alone.
(c) Elective officers.

xxx

xxx

xxx

From the foregoing, We find that the post of provincial fiscal

in the Philippines is included in subsection (b) above-quoted
particularly the underlined portion thereof. The law regarding
appointment to the post of provincial fiscal is contained in
section 66 of the Administrative Code which provides that
"the Governor-General (now the President) shall appoint
among other officials, Secretaries to Departments, Provincial
Treasurers, Provincial Fiscals, Register of Deeds, etc." And,
Article VII, section 10(3) of the Constitution provides that the
President shall nominate and with the consent of the
Commission on Appointments shall appoint among other
officials, "all other officers of the Government whose
appointments are not herein otherwise provided for" which
clearly includes the office of provincial fiscal. It is therefore
clear that a provincial fiscal who is nominated and appointed
by the President with the consent of the Commission on
Appointments, as was petitioner Lacson, is, under section
671 (b) above-quoted, included in the unclassified service of
the Civil Service.
The next question arises as to whether the President even
with the concurrence or consent of the Commission on
Appointments may remove a provincial fiscal without cause.
The Constitution itself denies said right. Article XII, section 4
of said instrument provides that "no officer or employee in
the civil service shall be removed or suspended except for
cause as provided by law." This constitutional provision is
reproduced word for word in the in the paragraph of sec. 694
of the Rev. Adm. Code, as amended by Commonwealth Act
No. 177, section 22.
In order to better appreciate the meaning of this
constitutional provision as well as the purpose behind it, it is
necessary to delve, though ever so lightly into the framing of
this basic instrument. The Committee on Civil Service of the
Constitutional Convention which drafted the Constitution in
its report and in advocating the merit system in connection
with a civil service system among other things stated the
following:
The adoption of the "merit system" in government
service has secured efficiency and social justice. It
eliminates the political factor in the selection of
civil employees which is the first essential to an
efficient personnel system. It insures equality of
opportunity to all deserving applicants desirous of
a career in the public service. It advocates a new
concept of the public office as a career open to all
and not the exclusive patrimony of any party or
faction to be doled out as a reward for party
service. (Arnego's Framing of the Constitution, Vol.
II, p. 886.)

The "merit system" was adopted only after the

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

That constitutional prohibition is a limitation to the inherent

power of the Executive to remove those civil service officials
whom he appoints. This is the reason why we find the
American cases cited in support of respondent's theory to be
inapplicable. The prohibition against removal except for
cause contained in our Constitution has no counterpart in the
Federal Constitution of the United States.
Again, it is contended that the provincial fiscal is not
appointed for a fixed term and that there is no tenure of
office attached to the post. This contention is without merit.
As we have already stated, a provincial fiscal as a civil
service official may not be removed from office even by the
President who appointed him, and even with the consent of
the Commission on Appointments, except for cause.
Considering this security and protection accorded a
provincial fiscal from arbitrary and illegal removal from office,
and considering the provisions of section 1673 of the
Administrative Code which among other things provides, that
"after December 31, 1932 any city fiscal or assistant city
fiscal of Manila, provincial fiscal or deputy provincial fiscal
over 65 years of age shall vacate his office, the logical
inference is that a provincial fiscal duly appointed, until he
reaches the age of 65 has the right to continue in office
unless sooner removed for cause. In other words, he enjoys
tenure of office, which is duly protected by statute and by the
Constitution.
The last part of the report of the Committee on Civil Service
of the Constitutional Convention which we have reproduced
mentions this tenure of office in its last sentence, "This
affords public employees reasonable security or tenure."
Speaking of tenure of office of members of the civil service in
the Philippines, Professor Sinco in his book on Philippine
Political Law has the following to say:
Security of Tenure.
Nothing can be more demoralizing to a group of
civil servants than the fear that they might be
removed from their posts any time at the pleasure
of their superiors. It goes without saying that a
demoralized force is an inefficient form Security of
tenure is necessary in order to obtain efficiency in
the civil service. For this purpose the Constitution
provides that "no officer or employee in the Civil
Service shall be removed or suspended except for
cause as provided by law." (Philippine Political
Law by Sinco, p. 350.)
In our discussion of the functions of the President,
it was there shown that the President's power of
removal which is implied from his power of
appointment, is very comprehensive and almost
unlimited when it affects officers holding purely
executive positions. This class of officers, under

the rule laid down in the Meyers case, may be

removed by the President at practically any time
and for any cause. No statutory check, such as a
requirement that his order of removal should be
subject to the previous consent of the senate or
the Commission on Appointments before it could
be effective, may be validly placed upon his right
to exercise this power. But the provision of the
Constitution of the Philippines, which has no
counterpart in the Constitution of the United
States, makes the tenure of officers and
employees in the Civil Service secure even
against the President's power of removal and even
if the officers should hold purely executive offices.
The result is that the scope of the rule established
in the Meyers case is considerably modified and
reduced when applied in this jurisdiction. It may
only apply in case of executive officers appointed
by the President and not belonging to the Civil
Service as established by the Constitution. (Ibid.
pp. 350-351.).
It is also contended by the respondent that neither the
Constitution nor the laws passed by the Legislature mention
or enumerate the cause or causes for which a civil service
official may be removed from office. We find this claim
untenable. Section 686 of the Revised Administrative Code,
as amended by Commonwealth Act No. 177, section 18
provides that falsification by a civil service official of his daily
time record shall render him liable to summary removal and
subject him to prosecution as provided by law. A like
provision for removal and prosecution is found in section 687
of the same Code, as amended by Commonwealth Act 177,
section 19 which deals with political activity and contribution
to political fund by civil service employees. Then we have
Rule XIII, section 6 of the Civil Service Rules providing thus:
6. Discourtesy to private individuals or to
Government officers or employees, drunkenness,
gambling, dishonesty, repeated or flagrant
violation or neglect of duty, notoriously disgraceful
or immoral conduct, physical incapacity due to
immoral or vicious habits, incompetency,
inefficiency, borrowing money by superior officers
from subordinates or lending money by
subordinate to superior officers, lending money at
exhorbitant rates of interest, willful failure to pay
just debts, contracting loans of money or other
property from merchants or other persons with
whom the bureau of the borrower is in business
relations, pecuniary embarrassment arising from
reprehensible conduct, the pursuits of private
business, vocation, or profession without
permission in writing from the chief of the bureau
or office in which employed and of the GovernorGeneral (now the President)or proper head of
Department, disreputable or dishonest conduct

committed prior to entering the service,

insubordination, pernicious political activity,
offensive political partisanship or conduct
prejudicial to the best interest of the service, or the
willful violation by any person in the Philippine civil
service of any of the provisions of the Revised
Civil Service Act or rules, may be considered
reasons demanding proceedings to remove for
cause, to reduce in class or grade, or to inflict
other punishment as provided by law in the
discretion of the Governor-General (now the
President) or proper head of Department. No chief
of a bureau or office shall knowingly continue in
the public service any subordinate officer or
employee who is inefficient or who is guilty of any
of the above-named derelictions, without
submitting the facts through the Director to the
Governor-General (now the President) or proper
head of Department.
The law and civil service rules above referred to clearly
provide the causes or some of the causes for removal of civil
service officials; and they answer the contention of the
respondent on this point.
Section 64 of the Revised Administrative Code, providing for
the particular powers and duties of the Governor-General,
now the President of the Republic, in part reads as follows:
xxx

xxx

xxx

(b) To remove officials from office conformably to

law and to declare vacant the offices held by such
removed officials. For disloyalty to the United
States (now the Philippines), the GovernorGeneral (now the President) may at any time
remove a person from any position of trust or
authority under the Government of the Philippine
Islands.
(c) To order, when in his opinion the good of the
public service so requires, an investigation or any
action or the conduct of any person in the
Government service, and in connection therewith
to designate the official, committee, or person by
whom such investigation shall be conducted.
xxx

xxx

xxx

Section 694 of the Administrative Code as amended by

Commonwealth Act No. 177, section 22, reads as follows:

Sec. 694. Removal or suspension. No officer or

employee in the civil service shall be removed or
suspended except for cause as provided by law.
The President of the Philippines may suspend any
chief or assistant chief of a bureau or office, and in
the absence of special provision, any other officer
appointed by him, pending an investigation of
charges against such officer or pending an
investigation of his bureau or office. With the
approval of the head of department, the chief of a
bureau or office may likewise suspend any
subordinate or employee in his bureau or under
his authority pending an investigation, if the
charge against such subordinate or employee
involves dishonesty, oppression, or grave
misconduct or neglect in the performance of duty.
From the sections above-quoted, the inference is inevitable
that before a civil service official or employee can be
removed, there must first be an investigation at which he
must be given a fair hearing and an opportunity to defend
himself. In the case of petitioner Lacson, the record fails to
show, neither is there any claim that he has been charged
with any violation of law or civil service regulation, much leas
investigated and thereafter found guilty so as to authorize or
warrant removal from office.
In view of the foregoing, we are constrained to find and to
hold that the transfer of Lacson to Tarlac by his nomination
to the post of provincial fiscal of that province was equivalent
to and meant his removal as provincial fiscal of Negros
Oriental; that said removal was illegal and unlawful for lack
of valid cause as provided by law and the Constitution; that
the confirmation of the nomination by the Commission on
Appointments did not and could not validate the removal,
since the Constitution is equally binding on the Legislature;
that a provincial fiscal is a civil service official or employee
whose tenure of office is protected by the Constitution; and
that Antonio Lacson could not be compelled to accept his
appointment as provincial fiscal of Tarlac; that having
declined said appointment, he continued as provincial fiscal
of Negros Oriental; that inasmuch as he neither left,
abandoned nor resigned from his post as provincial fiscal of
Negros Oriental, there was no vacancy in said post to which
the respondent could be legally appointed; and that
consequently, the appointment of the respondent was
invalid.
In this connection we may point out that the Constitution
having clearly limited and qualified the Presidential power of
removal in order to protect civil service officials and
employees, secure to them a reasonable tenure of office and
thus give the country the benefit of an efficient civil service
based on the merit system, this Court could do no less than
give effect to the plain intent and spirit of the basic law,

specially when it is supplemented and given due course by

statutes, rules and regulations. To hold that civil service
officials hold their office at the will of the appointing power
subject to removal or forced transfer at any time, would
demoralize and undermine and eventually destroy the whole
Civil Service System and structure. The country would then
go back to the days of the old Jacksonian Spoils System
under which a victorious Chief Executive, after the elections
could if so minded, sweep out of office, civil service
employees differing in political color or affiliation from him,
and sweep in his political followers and adherents, especially
those who have given him help, political or otherwise. A
Chief Executive running for re-election may even do this
before election time not only to embarrass and eliminate his
political enemies from office but also to put his followers in
power so that with their official influence they could the
better help him and his party in the elections. As may be
gathered from the report of the Committee of the
Constitutional Convention which we have reproduced at the
beginning of this opinion, the framers of our Constitution, at
least the Civil Service Committee thereof, condemned said
spoils system and purposely and deliberately inserted the
constitutional prohibition against removal except for cause,
which now forms the basis of this decision.
There are hundreds, yea, thousands of young, ambitious
people who enter the Civil Service not temporarily or as a
makeshift, but to make a career out of it. They give the best
years of their lives to the service in the hope and expectation
that with faithful service, loyalty and some talent, they may
eventually attain the upper reaches and levels of official
hierarchy.
To permit circumvention of the constitutional prohibition in
question by allowing removal from office without lawful
cause, in the form or guise of transfers from one office to
another, or from one province to another, without the consent
of the transferee, would blast the hopes of these young civil
service officials and career men and women, destroy their
security and tenure of office and make for a subservient,
discontented and inefficient civil service force that sways
with every political wind that blows and plays up to whatever
political party is in the saddle. That would be far from what
the framers of our Constitution contemplated and desired.
Neither would that be our concept of a free and efficient
Government force, possessed of self-respect and
reasonable ambition.
Incidentally, it happens that the petitioner is one of those we
had in mind as making a career of the Government service.
He claims and it is not denied by the respondent, that twenty
years ago he entered the service of the Government as
register of deeds of Negros Oriental, then was promoted to
the post of fiscal, first of the Province of Palawan, then of
Surigao, later of Antique and lastly of Negros Oriental in
1946. He does not want to accept the transfer to the
Province of Tarlac. His only alternative would be to resign,

sacrifice his twenty years of continuous, faithful service and

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

G.R. No. L-16808

January 3, 1921

ANDRES
vs.
FERMIN MARIANO, defendant.

BORROMEO, plaintiff,

MALCOLM, J.:
Quo warranto proceedings have been instituted in this court
to determine the right of the plaintiff and of the defendant to
the office of Judge of the Court of First Instance of the
Twenty-fourth Judicial District.
The only facts, and these are undisputed ones, which need
be noticed, are the following: Andres Borromeo was
appointed and commissioned as Judge of the Twenty-fourth
Judicial District, effective July 1, 1914. He duly qualified and
took possession of the office on that date. On February, 25,
1920, he was appointed Judge of the Twenty-first Judicial
District, and Fermin Mariano was appointed Judge of the
Twenty-fourth Judicial District. Judge Borromeo has since
the latter date consistently refused to accept appointment to
the Twenty-first Judicial District.
Judges of First Instance are appointed by the GovernorGeneral with the consent of the Philippine Senate to serve
until they reach the age of 65 years. (Adm. Code, secs. 65,
66, 148.) One Judge of First Instance is commissioned for
each judicial district, except the night. (Sec. 154.) The oath
of office of the judge is "filed with the clerk of the court to
which the affiant pertains and shall be entered upon its
records." (Sec. 128.) Judges of First Instance may only be
detailed by the Secretary of Justice to temporary duty in a
district other than their own for the purpose of trying land
registration cases and for vacation duty. (Sec. 155.) The
concluding portion of section 155 of the Administrative Code,
to which particular attention is addressed by the AttorneyGeneral, is, "but nothing herein shall be construed to prevent
a judge of first instance of one district from being appointed
to be judge of another district." A Judge of First Instance can
be removed from office by the Governor-General only if in
the judgment of the Supreme Court sufficient cause shall
exist involving serious misconduct or inefficiency in office.
(Sec. 173.)
The cardinal rule of statutory construction requires the court
to give effect to the general legislative intent if that can be
discovered within the four corners of the Act. When the
object intended to be accomplished by the statute is once
clearly ascertained, general words may be restrained to it

and those of narrower import may be expanded to embrace

it, to effectuate the intent. Along with this fundamental
principle is another, equally well-established, that such a
construction is, if possible, to be adopted, as will give effect
to all provision of the statute. (2 Lewis' Sutherland, Statutory
Construction, pp. 662, et seq.; In re Allen [1903], 2 Phil.,
630; Code of Civil Procedure, sec. 287.)
Leaving out of consideration for the moment the last part of
section 155 of the Administrative Code, the provisions of the
Judiciary Law are plain and unambiguous. Judges of First
Instance are appointed judges of the courts of first instance
of the respective judicial districts of the Philippines Islands.
They are not appointed judges of first instance of the
Philippine Islands. They hold these positions of judges of
first instance of definite districts until they resign, retire, or
are removed through impeachment proceedings. The
intention of the law is to recognize separate and distinct
judicial offices.
The concluding portion of section 155 of the Administrative
Code, although not beginning with the usual introductory
word, "provided," is nevertheless, in the nature of a proviso,
and should be construed as such. The office of a proviso is
to limit the application of the law. It is contrary to the nature
of a proviso to enlarge the operation of the law. It should not
be construed so as to repeal or destroy the main provisions
of the statute. A proviso which is directly repugnant to the
purview or body of an Act is inoperative and void. (See
generally, 25 R. C. L., pp. 984, et seq.; and specifically, the
leading cases of McKnight vs. Hodge [1909], 55 Wash., 289,
104 Pac., 504, 40 L. R. A. [N.S.], 1207; McCormick vs. West
Duluth [1891], 47 Minn., 272, 50 N.W., 128; Idaho Power &
Light Co. vs. Blomquist [1916], 26 Idaho, 222; 141 Pac.,
1083, Ann. Cas. [1916 E], p. 282, where these principles
concerning provisos are applied.)
To arrive at a correct decision with reference to the proviso
before us, let it first be recalled that the law is emphatic in its
specification that, save when judges of first instance are
detailed to try land registration cases or when assigned to
vacation duty, "no judge of first instance shall be required to
do duty in any other district than that for which he is
commissioned." The keyword to the proviso which follows is
"appointed." This word should here be given its usual
signification. Many of the decisions follow the definition of
"appoint" found in the Century Dictionary and Encyclopedia.
"Appoint" is there defined as "to allot, set apart, or designate;
nominate or authoritatively assign, as far a use, or to a
position or office." All the authorities united in saying that the
term "appoint" is well-known in law and whether regarded in
its legal or in its ordinary acceptation, is applied to the
nomination or designation of an individual. Appointment
signifies no more than selection for public office. (4 C. J.,
1402, 1404, citing numerous decisions.)

The effect to be given to the word "appoint" is corroborated

by the principles of the law of public officers. Appointment
and qualification to office are separate and distinct things.
Appointment is the sole act of those vested with the power to
make it. Acceptance is the sole act of the appointee.
Persons may be chosen for office at pleasure; there is no
power in these Islands which can compel a man to accept
the office. (22 R. C. L. 423.) If, therefore, anyone could
refuse appointment as a judge of first instance to a particular
district, when once appointment to this district is accepted,
he has exactly the same right to refuse an appointment to
another district. No other person could be placed in the
position of this Judge of First Instance since another rule of
public officers is, that an appointment may not be made to
an office which is not vacant. (29 Cyc., 1373.) In our
judgment, the language of the proviso to section 155 of the
Administrative Code, interpreted with reference to the law of
public officers, does not empower the Governor-General to
force upon the judge of one district an appointment to
another district against his will, thereby removing him from
his district.
Returning again to the principle of statutory construction that
a proviso should not be given a meaning which would tend
to render abortive the main portions of the law, it should
further be recalled that judges of first instance are removable
only through a fixed procedure. Moreover, impeachment
proceedings, as conducted by the Supreme Court, may be in
the nature of jurisdiction, conferred upon the Supreme Court
by ratification of the Congress of the United States, which, it
has uniformly been held, cannot be diminished. (We make
no ruling on this point because unnecessary for the
resolution of the case.) But, certainly, if a judge could be
transferred from one district of the Philippine Islands to
another, without his consent, it would require no great
amount of imagination to conceive how this power could be
used to discipline the judge or as an indirect means of
removal. A judge who had, by a decision, incurred the ill-will
of an attorney or official, could, by the insistence of the
disgruntled party, be removed from one district, demoted,
and transferred to another district, at possibly a loss of
salary, all without the consent of the judicial officer. The only
recourse of the judicial officer who should desire to maintain
his self-respect, would be to vacate the office and leave the
service. Unless we wish to nullify the impeachment section
of the Administrative Code, and thus possibly to encroach
upon the jurisdiction conferred upon the Supreme Court by
the Organic Law, section 155 must be interpreted so as to
make it consistent therewith.
What we have said is reinforced by the authorities most
directly in point. In the early decision of Marbury vs.Madison
([1803], 1 Cranch, 137), the Supreme Court of the United
States, in unmistakable terms, explained the powers of the
Judiciary in enforcing the Constitution as the Supreme Law
of the Land and held that the President of the United States
had no power to remove a justice of the peace of the District

of Columbia from office. Mr. Chief Justice Marshall said that

"When the officer is not removable at the will of the
executive, the appointment is not revocable, and cannot be
annulled: it has conferred legal rights which cannot be
resumed. The discretion of the executive is to be exercised,
until the appointment has been made. But having once made
the appointment, his power over the office is terminated, in
all cases where, by law, the officer is not removable by him.
The right to the office is then in the person appointed, and he
has the absolute unconditional power of accepting or
rejecting it." The great jurist further or observed that "It is,
emphatically, the province and duty of the judicial
department, to say what the law is"
In State of Louisiana vs. Downes ([1869], 21 La. Ann., 490),
the Supreme Court of Louisiana said that a judge of a court
could, under the Constitution of that State, only be removed
from office by impeachment, by address of the Legislature,
or by proceeding under the intrusion act. It was held that the
appointment and commissioning by the Governor of the
State of a party to an office which has legally been filled,
without the vacancy being first declared according to law,
was an absolute nullity.
The Attorney-General brings to our notice an obsolete law
which had escaped us, and which, if any lingering doubts
exist, would serve to remove that. This law is Act No. 396,
enacted by the Philippine Commission in 1902. Section 4
thereof, separate and distinct from the other provisions of the
Act, and not tacked on as a proviso, provided that "any judge
of a Court of First Instance . . . may be transferred from one
judicial district to another by order of the Civil Governor, with
the advice and consent of the Commission. Any judge so
transferred shall, upon such transfer, cease the performance
of judicial duties in the district to which he was originally
appointed, and shall be the regular judge thereafter in the
judicial district to which he as been so assigned." But Act No.
396 was thrice repealed by the Philippine Legislature; the
first time, impliedly by the enactment of Act No. 2347, the
Judiciary Reorganization Act, and subsequently, expressly
by the Administrative Code of 1916 and the Administrative
Code of 1917. Instead, also, of continuing the phraseology of
section 4 of Act No. 396, the Legislature merely included the
proviso to which we have alluded. It cannot, therefore, admit
of doubt that the members of the Philippine Legislature had
before them the Act of the Philippine Commission and
preferred, not to perpetuate the old law, but to insert
language of their own. The purpose of the Philippine
Legislature was clearly to safeguard the interests of the
judiciary, and this laudable purpose, it is for us now to
effectuate.
Far more convincing than precedent or argument are great
and basic principles long inherent in popular government
intended to create an independent judiciary. A history of the
struggle for a fearless and an incorruptible judiciary prepared
to follow the law and to administer it regardless of

consequences, can be perused with ever-recurring benefit.

Since the early days of the Republic, the judicial system in
the United States, with certain exceptions which only served
to demonstrate more fully the excellence of the whole, has
been viewed with pride, and confidently relied upon for
justice by the American people. The American people
considered it necessary "that there should be a judiciary
endowed with substantial and independent powers and
secure against all corrupting or perverting influences;
secure, also, against the arbitrary authority of the
administrative heads of the government." (Woodrow Wilson,
Constitutional Government in the United States, pp. 17,
142.) It was such a conception of an independent judiciary
which was instituted in the Philippines by the American
administration and which has since served as one of the
chief glories of the government and one of the most
priceless heritages of the Filipino people.
The Attorney-General in the argument in support of his
motion for reconsideration, quotes the last preceding
sentence and says that he dissents therefrom. The number
of authoritative replies to the proposition advanced by the
law officer of the government relative to the intention to
establish an independent judiciary in these Islands, is limited
only by space in which to quote them. Possibly we can do no
better than to make our own the language of Mr. Justice
Trent,
speaking
for
a
unanimous
court,
in
Severino vs. Governor-General and Provincial Board of
Occidental Negro ([1910], 16 Phil., 366, 384), when he said:
"This governments in the United States, now possesses a
complete governmental organization, with executive
legislative, and judicial departments, which are exercising
functions as independent of each other as the Federal or
State governments." (For the legislative version of the same
idea, see Administrative Code, sec. 17.)
On occasion, the Supreme Court of the Philippine Islands
has applied the accepted theory of the division of powers,
termed by the United States Supreme Court as "one of the
chief merits of the American system of written constitutional
law" (Kilbourn vs. Thompson [1881], 13 Otto, 168), and has
unhesitatingly refused to interfere with the official acts of the
Governor-General or to intrude on the rights and privileges
of the Philippine Legislature (In the Patterson [1902], 1 Phil.,
93; Severino vs. Governor-General and Provincial Board of
Occidental Negros,supra; In re McCulloch Dick [1918], 38
Phil., 41; U.S. vs. Bull [1910], 15 Phil., 7; U.S. vs. Ten Yu
[1912], 24 Phil., 1; Veloso vs. Boards of Canvassers of Leyte
and Samar [1919], 39 Phil., 886.) As an instance of this class
of decisions, in Veloso vs. Boards of Canvassers of Leyte
and Samar, supra, this court, in considering the right of the
Philippine Senate to be the judge of the elections, returns,
and qualifications of its elective members, said:
The grant of power to the Philippine Senate and
the Philippine House of Representatives,
respectively is full, clear, and complete. . . . The

judiciary, with its traditional and careful regard for

the balance of powers, must permit this exclusive
privilege of the legislature to remain where the
sovereign authority has placed it. Since, therefore,
the Philippine Senate is made the sole judge of
the elections, returns, and qualifications of its
elective members, this tribunal neither can, nor
ought, to take jurisdiction of the case.
Although much more reluctantly, and also much more
infrequently we are happy to add, the court has had to
defend the judiciary against legislative and executive
encroachment. (Ocampo vs. Cabagis [1910], 15 Phil.,
626;In re Guaria [1914], 24 Phil., 37; Barrameda vs. Moir
[1913], 25 Phil., 44; and Province of Tarlac vs. Gale [1913],
26 Phil., 338.) As an instance of the latter class of decisions,
in Province of Tarlac vs. Gale, supra, Mr. Justice Moreland,
speaking for the court, said:
The judiciary is one of the coordinate branches of
the Government. (Forbes vs. Chuoco Tiaco, 16
Phil., 534; United States vs. Bull, 15 Phil., 7.) Its
preservation in its integrity and effectiveness is
necessary to the present form of Government. . . .
It
is
clear . . . that each department is bound to
preserve its own existence if it live up to the duty
imposed upon it as one of the coordinate branches
of the government. Whatever a person or entity
ought to do or must do in law, it has the power to
do. This being true, the judiciary has the power to
maintain its existence; and whatever is reasonably
necessary to that end, courts may do or order
done. But the right to live, if that is all there is of it,
is a very small matter. The mere right to breathe
does not satisfy ambition or produce results.
Therefore, courts have not only the power to
maintain their life, but they have also the power to
make that existence effective for the purpose for
which the judiciary was created. They can, by
appropriate means, do all things necessary to
preserve and maintain every quality needful to
make the judiciary an effective institution of
Government. Courts have, therefore, inherent
power to preserve their integrity, maintain their
dignity and to insure effectiveness in the
administration of justice. This is clear; for, if the
judiciary may be deprived of any one of its
essential attributes, or if any one of them may be
seriously weakened by the act of any person or
official, then independence disappears and
subordination begins. The power to interfere is the
power to control, and the power to control is the
power to abrogate. The sovereign power has
given life to the judiciary and nothing less than the
sovereign power can take it away or render it
useless. The power to withhold from the courts

anything really essential for the administration of

justice is the power to control and ultimately to
destroy the efficiency of the judiciary. Courts
cannot, under their duty to their creator, the
sovereign power, permit themselves to be
subordinated to any person or official to which
their creator did not itself subordinate them.
A stirring plea has been made by the learned representative
of the Government for a decision which will work for the
public welfare. We agree that, under the peculiar conditions
existing in the Philippines, it is sometimes well for a judge
not to remain indefinitely in a particular district. But it is a far
cry from this premise to the use of a method not sanctioned
by existing law and savoring of military discipline. Our
conception of good judges has been, and is, of men who
have a mastery of the principles of law, who discharge their
duties in accordance with law, who are permitted to perform
the duties of the office undeterred by outside influence, and
who are independent and self-respecting human units in a
judicial system equal and coordinate to the other two
departments of government. We are pleased to think of
judges as of the type of the erudite Coke who, three
centuries ago, was removed from office because when
asked "if in the future he would delay a case at the King's
order," replied: "I will do what becomes me as a judge."
For the reasons given, we are of opinion that the reasonable
force of the language used in the proviso to section 155 of
the Administrative Code taken in connection with the whole
of the Judiciary Law, and the accepted canons of
interpretation, and the principles of the law of public officers,
leave from for no other construction than that a Judge of
First Instance may be made a judge of another district only
with his consent.
It is our holding that the plaintiff Andres Borromeo is lawfully
entitled to the possession of the office of Judge of the Court
of First Instance of the Twenty-Fourth Judicial District. It is
our judgment that the defendant Fermin Mariano shall be
ousted from the office of Judge of the Twenty-fourth Judicial
District, and the plaintiff placed in possession of the same.
The motion for reconsideration filed by the Attorney-General
is denied. No costs shall be allowed. Let this be entered as
the order of the court. So ordered.

On February 25, 1997, respondent Dacoycoy filed a

motion for reconsideration;[4] however, on May 20, 1997, the
Civil Service Commission denied the motion.[5]
[G.R. No. 135805. April 29, 1999]
CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O.
DACOYCOY, respondent.
DECISION
PARDO, J.:
The
case
before
us
is
an
appeal via certiorari interposed by the Civil Service
Commission from a decision of the Court of Appeals ruling
that respondent Pedro O. Dacoycoy was not guilty of
nepotism and declaring null and void the Civil Service
Commissions resolution dismissing him from the service as
Vocational School Administrator, Balicuatro College of Arts
and Trade, Allen, Northern Samar.
The facts may be succinctly related as follows:
On November 29, 1995, George P. Suan, a Citizens
Crime Watch Vice-President, Allen Chapter, Northern Samar,
filed with the Civil Service Commission, Quezon City, a
complaint against Pedro O. Dacoycoy, for habitual
drunkenness, misconduct and nepotism.[1]
After the fact-finding investigation, the Civil Service
Regional Office No. 8, Tacloban City, found a prima
facie case against respondent, and, on March 5, 1996,
issued the corresponding formal charge against him.
[2]
Accordingly, the Civil Service Commission conducted a
formal investigation, and, on January 28, 1997, the Civil
Service Commission promulgated its resolution finding no
substantial evidence to support the charge of habitual
drunkenness and misconduct. However, the Civil Service
Commission found respondent Pedro O. Dacoycoy guilty of
nepotism on two counts as a result of the appointment of his
two sons, Rito and Ped Dacoycoy, as driver and utility
worker, respectively, and their assignment under his
immediate supervision and control as the Vocational School
Administrator Balicuatro College of Arts and Trades, and
imposed on him the penalty of dismissal from the service.[3]

On July 18, 1997, respondent Dacoycoy filed with the

Court of Appeals a special civil action for certiorari with
preliminary injunction[6] to set aside the Civil Service
Commissions resolutions.
On July 29, 1998, the Court of Appeals promulgated its
decision reversing and setting aside the decision of the Civil
Service Commission, ruling that respondent did not appoint
or recommend his two sons Rito and Ped, and, hence, was
not guilty of nepotism. The Court further held that it is the
person who recommends or appoints who should be
sanctioned, as it is he who performs the prohibited act.[7]
Hence, this appeal.
On November 17, 1998, we required respondent to
comment on the petition within ten (10) days from notice.
[8]
On December 11, 1998, respondent filed his comment
We give due course to the petition.
The basic issue raised is the scope of the ban on
nepotism.
We agree with the Civil Service Commission that
respondent Pedro O. Dacoycoy was guilty of nepotism and
correctly meted out the penalty of dismissal from the service.
The law defines nepotism[9] as follows:
Sec. 59. Nepotism. (1) All appointments to the national,
provincial, city and municipal governments or in any branch
or instrumentality thereof, including government owned or
controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the
bureau or office, or of the persons exercising immediate
supervision over him, are hereby prohibited.
As used in this Section, the word relative and members of
the family referred to are those related within the third
degree either of consanguinity or of affinity.

(2) The following are exempted from the operations of the

rules on nepotism: (a) persons employed in a confidential
capacity, (b) teachers, (c) physicians, and (d) members of
the Armed Forces of the Philippines: Provided, however,
That in each particular instance full report of such
appointment shall be made to the Commission.
Under the definition of nepotism, one is guilty of
nepotism if an appointment is issued in favor of a relative
within the third civil degree of consanguinity or affinity of any
of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over
the appointee.
Clearly, there are four situations covered. In the last
two mentioned situations, it is immaterial who the appointing
or recommending authority is. To constitute a violation of the
law, it suffices that an appointment is extended or issued in
favor of a relative within the third civil degree of
consanguinity or affinity of the chief of the bureau or office,
or the person exercising immediate supervision over the
appointee.
Respondent Dacoycoy is the Vocational School
Administrator, Balicuatro College of Arts and Trades, Allen,
Northern Samar. It is true that he did not appoint or
recommend his two sons to the positions of driver and utility
worker in the Balicuatro College of Arts and Trades. In fact, it
was Mr. Jaime Daclag, Head of the Vocational Department
of the BCAT, who recommended the appointment of Rito. Mr.
Daclag's authority to recommend the appointment of first
level positions such as watchmen, security guards, drivers,
utility workers, and casuals and emergency laborers for short
durations of three to six months was recommended by
respondent Dacoycoy and approved by DECS Regional
Director Eladio C. Dioko, with the provision that such
positions shall be under Mr. Daclags immediate
supervision. On July 1, 1992, Atty. Victorino B. Tirol II,
Director III, DECS Regional Office VIII, Palo, Leyte,
appointed Rito Dacoycoy driver of the school. On January 3,
1993, Mr. Daclag also appointed Ped Dacoycoy casual utility
worker. However, it was respondent Dacoycoy who certified

that funds are available for the proposed appointment of Rito

Dacoycoy and even rated his performance as very
satisfactory. On the other hand, his son Ped stated in his
position description form that his father was his next higher
supervisor. The circumvention of the ban on nepotism is
quite obvious. Unquestionably, Mr. Daclag was a subordinate
of respondent Pedro O. Dacoycoy, who was the school
administrator. He authorized Mr. Daclag to recommend the
appointment of first level employees under his immediate
supervision. Then
Mr.
Daclag
recommended
the
appointment of respondents two sons and placed them
under respondents immediate supervision serving as driver
and utility worker of the school. Both positions are career
positions.

the form of suspension, demotion in rank or salary, transfer,

removal or dismissal from office [15] and not included are
cases where the penalty imposed is suspension for not more
then thirty (30) days or fine in an amount not exceeding thirty
days salary[16] or when the respondent is exonerated of the
charges, there is no occasion for appeal.[17] In other words,
we overrule prior decisions holding that the Civil Service Law
does not contemplate a review of decisions exonerating
officers or employees from administrative charges
enunciated in Paredes v. Civil Service Commission;
[18]
Mendez v. Civil Service Commission;[19] Magpale v. Civil
Service Commission;[20] Navarro v. Civil Service Commission
and Export Processing Zone Authority[21] and more recently
Del Castillo v. Civil Service Commission[22]

To our mind, the unseen but obvious hand of

respondent Dacoycoy was behind the appointing or
recommending authority in the appointment of his two
sons. Clearly, he is guilty of nepotism.

The Court of Appeals reliance on Debulgado vs. Civil

Service
Commission,[23] to
support
its
ruling
is
misplaced. The issues in Debulgado are whether a
promotional appointment is covered by the prohibition
against nepotism or the prohibition applies only to original
appointments to the civil service, and whether the
Commission had gravely abused its discretion in recalling
and disapproving the promotional appointment given to
petitioner after the Commission had earlier approved that
appointment. Debulgado never even impliedly limited the
coverage of the ban on nepotism to only the appointing or
recommending authority for appointing a relative. Precisely,
in Debulgado, the Court emphasized that Section 59 means
exactly what it says in plain and ordinary language: x x x The
public policy embodied in Section 59 is clearly fundamental
in importance, and the Court had neither authority nor
inclination to dilute that important public policy by introducing
a qualification here or a distinction there.[24]

At this point, we have necessarily to resolve the

question of the party adversely affected who may take an
appeal from an adverse decision of the appellate court in an
administrative civil service disciplinary case. There is no
question that respondent Dacoycoy may appeal to the Court
of Appeals from the decision of the Civil Service Commission
adverse to him.[10] He was the respondent official meted out
the penalty of dismissal from the service. On appeal to the
Court of Appeals, the court required the petitioner therein,
here respondent Dacoycoy, to implead the Civil Service
Commission as public respondent[11] as the government
agency tasked with the duty to enforce the constitutional and
statutory provisions on the civil service.[12]
Subsequently, the Court of Appeals reversed the
decision of the Civil Service Commission and held
respondent not guilty of nepotism. Who now may appeal the
decision of the Court of Appeals to the Supreme
Court? Certainly not the respondent, who was declared not
guilty of the charge. Nor the complainant George P. Suan,
who was merely a witness for the government.
[13]
Consequently, the Civil Service Commission has become
the party adversely affected by such ruling, which seriously
prejudices the civil service system. Hence, as an aggrieved
party, it may appeal the decision of the Court of Appeals to
the Supreme Court.[14] By this ruling, we now expressly
abandon and overrule extant jurisprudence that the phrase
party adversely affected by the decision refers to the
government employee against whom the administrative case
is filed for the purpose of disciplinary action which may take

Nepotism is one pernicious evil impeding the civil

service and the efficiency of its personnel. In Debulgado, we
stressed that [T]the basic purpose or objective of the
prohibition against nepotism also strongly indicates that the
prohibition was intended to be a comprehensive one. [25] The
Court was unwilling to restrict and limit the scope of the
prohibition which is textually very broad and comprehensive.
[26]
If not within the exceptions, it is a form of corruption that
must be nipped in the bud or bated whenever or wherever it
raises its ugly head. As we said in an earlier case what we
need now is not only to punish the wrongdoers or reward the
outstanding civil servants, but also to plug the hidden gaps
and potholes of corruption as well as to insist on strict
compliance with existing legal procedures in order to abate
any occasion for graft or circumvention of the law.[27]

WHEREFORE, the Court hereby GRANTS the petition

and REVERSES the decision of the Court of Appeals in CAG.R. SP No. 44711.
ACCORDINGLY, the Court REVIVES and AFFIRMS
the resolutions of the Civil Service Commission dated
January 28, 1998 and September 30, 1998, dismissing
respondent Pedro O. Dacoycoy from the service.
No costs.
SO ORDERED.

HON. GEMILIANO LOPEZ, JR., in his capacity as Mayor

of Manila; EUFEMIA DOMIGUEZ, in her capacity as City
Budget Officer; HERMINIO ARCEO, in his capacity as
Chairman, Committee for Retirement Gratuity and
Terminal Leave Pay of the Office of the City Treasurer of
Manila; and HON. ANTHONY ACEVEDO, in his capacity
as
City
Treasurer
of
Manila, petitioners,
vs.
HON. COURT OF APPEALS and GALICIANO P.
MANAPAT, respondents.

of Claims for Retirement Gratuity and Terminal Leave Pay

("Committee") by an Indorsement dated 21 May 1990. The
next day, however, the Chairman of that Committee returned
the papers to the Manila Board of Tax Assessment Appeals
without acting on the retirement gratuity claim of Manapat,
upon the ground 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.

FELICIANO, J.:

Manapat appealed the action of the Chairman of the

Committee to the City Budget Officer. The latter officer
replied by informing Manapat that his claim for retirement
pay was forwarded to the then Mayor of the City of Manila,
petitioner Gemiliano Lopez, Jr., as well as to the City Legal
Officer for legal advice.

On 29 February 1972, private respondent Galicano Manapat

retired from the government service as Chief of the Legal
Division of the office of the Municipal Board of Manila. He
retired under the provisions of R.A. No. 1616, as amended,
having then rendered twenty (20) years of service to
petitioner City of Manila and received the amount of
P24,479.02 representing his full retirement benefit.
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, with a monthly salary of
P3,993.33. He occupied that position until he reached the
compulsory retirement age of sixty-five (65) years on 27
June 1989. The City of Manila extended his period of service
for six (6) months, i.e., up to 27 December 1989. During this
additional period of service, i.e., on 1 July 1989, the Salary
Standardization Law (R.A. No. 6758) took effect and
increased Manapat's monthly salary from P3,993.33 to
P11,385.00.
Upon expiration of private respondent Manapat's six (6)month extended period of service, he filed with the
Government Service Insurance System ("GSIS") an
application for retirement under R.A. No. 1616, as amended.
This application was approved by the GSIS on 6 April 1990,
initially on the basis of his previous salary of P3,993.33 per
month; on that basis, he was entitled to a total retirement
gratuity of P179,274.04, less the amount of P24,479.02
previously received as retirement pay when he first retired
on 29 February 1972, making a net balance of P154,795.02.
On 16 May 1990, the GSIS adjusted Manapat's approved
application for retirement to conform with his last
standardized monthly salary of P11,385.00. This adjustment
resulted in a total collectible retirement pay or gratuity of
P486,634.84 for Manapat.

G.R. No. 104158 November 6, 1992

The approved adjusted claim of Manapat for retirement

benefits was forwarded by the GSIS to the Board of Tax
Assessment Appeals of the City of Manila. The Assistant
Department Head of that Board in turn transmitted the
papers to the Chairman of the Committee on the Settlement

On 1 October 1990, the City Legal Officer of the City of

Manila rendered a written opinion to the effect that the City,
as employer, had discretionary authority to allow or disallow
a claim to retire under R.A. No. 1616, as amended,
considering that retirement under that law was optional and
payment of retirement benefits thereunder was subject to the
availability if funds. A week later, on 8 October 1990,
Manapat received a letter from petitioner City Mayor advising
that his (Manapat's) request for settlement of his claim for
retirement gratuity under R.A. No. 1616 could not be
favorably acted upon due to financial constraints upon the
City Government.
Manapat then commenced in the Regional Trial Court of the
City of Manila, a special civil action for mandamus to compel
petitioner officials of the city of Manila to allow Manapat to
retire under the provisions of R.A. No. 1616, as amended.
The trial court dismissed the petition.
On appeal, the Court of Appeal reversed the decision of the
trial court and issued a writ of mandamus ordering petitioner
officials to pay the retirement claim of Mr. Manapat in the
amount of P486,636.84 with legal interest from the time of
filling of the petition for mandamus and awarded as well Mr.
Manapat P30,000.00 as moral damages and another
P30,000.00 as attorney's fees.
In the present Petition for Review, petitioner officials of the
City of Manila pose the very same issues they had raised
before the Court of Appeals, namely:
(1) Whether 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, alternatively, is entitled only to

retirement benefits under the mandatory

retirement clause of R.A. No. 660; and
(2) Whether the City of Manila as
employer may be compelled to pay the
retirement benefits of its employees
under R.A. No. 1616, notwithstanding
lack of available funds for that purpose.
We are aware of the very practical considerations which
underlie the respective positive taken by petitioners and
private respondent. Petitioners are insisting that private
respondent Manapat retire under the provisions of R.A. No.
660 because, under those provisions, the GSIS is bound to
pay the retirement benefits properly accruing to Manapat,
while it is the City of Manila as employer which is liable for
the retirement gratuity appertaining under R.A. No. 1616 as
amended to Manapat. Upon the other hand, Manapat wishes
to retire under the provisions of R.A. No. 1616 as amended
because the amount of the gratuity under that law will be
significantly higher than the gratuity which would be payable
under the terms of R.A. No. 660. 1
Both R.A. No. 660 and R.A. No. 1616 were amendments to
Commonwealth Act ("C.A.") No. 186, otherwise known as
the Government Service Insurance System Charter. Section
12, C.A. No. 186, as amended by both R.A. No. 660 and
R.A. No. 1616 provides, in relevant part, as follows:
SECTION 12. Conditions for retirement. . . .
(a) On completion of thirty years of total service
and attainment of age fifty-seven years, a
member shall have the option to retire. In all
cases of retirement under this Act, 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 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) Notwithstanding the provisions of the
preceding paragraph, a member may be allowed
to retire after rendering a total service of thirty
years, regardless of age, the retiring employee to
receive a monthly annuity for life, but the benefits
for service rendered after June sixteen, nineteen
hundred and fifty-one, 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. This benefit for service rendered
prior to June sixteen, nineteen hundred and fiftyone as provided in section eleven (A) of this Act.
(c) Retirement is likewise allowed to any official
or employee, appointive or elective, regardless of
age and employment status, who has rendered a
total of at least twenty years of service, the last
three years of which are continuous. 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. Officials and employees retired
under this Act shall be entitled to the
commutation of the unused vacation and sick
leave, based on the highest rate received, which
they may have to their credit at the time of
retirement.

Upon specific approval of the President of the

Philippines, the President of the Senate, the
Speaker of the House of Representatives or the
Chief Justice of the Supreme Court, as the case
may be, an employee may be allowed to
continue to serve in the executive, legislative or
judicial branch of the government after the age of
sixty-five years if he possesses special
qualifications and the corresponding Department
Secretary certifies in writing that his services are
needed.
The automatic and compulsory retirement age for
members of the judiciary shall be seventy years
under the conditions and with all the benefits
provided for in the next preceding paragraph.
If a member exercises the option to retire
pursuant to the provisions of Subsection (a)
above at age sixty-three years, he shall likewise
be entitled to all the benefits provided for in the
first paragraph of this subsection. If the option is
exercised at age sixty or over but below sixtythree years, the retiree shall be entitled to a lump
sum payment of present value of annuity for the
first three years, with the balance of the five-year
guaranteed annuity payable in lump sum upon
reaching the age of sixty-three years, and future
annuity to be paid monthly, in addition to other
benefits provided for in Republic Act Numbered
Six hundred and sixty, as amended.
It shall be the duty of the employer concerned to
notify each employee under its direction of the
date of his automatic separation from the service
at least sixty days in advance thereof.

xxx xxx xxx

xxx xxx xxx 2
(e) Retirement shall be automatic and
compulsory at the age of sixty-five years with
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 Republic Act Number Six hundred
and sixty 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. This paragraph shall not
apply to elective officials and constitutional
officers whose tenure of office is guaranteed.

(Emphasis supplied)
Petitioners do not disputed the fact that private respondent
Manapat had, at the time of his second retirement on 27
December 1989, rendered a total of thirty-five (35) years of
government service, with the result that he had complied
with the requirement for retirement under each and every
one of the four (4) modes of retirement provided in Section
12 of C.A. No. 186 as amended, quoted above, to wit:
Section 12(a) 30 years of
government service and attainment of
age 57 years;

12(b) 30 years of
government service
"regardless of age;"

express terms, available to anyone who shall have rendered

at least twenty (20) years of service, "regardless of [the] age"
reached by the retiree at the time of his retirement.

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

We agree, therefore, with the respondent Court of Appeals

which held that 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:"

12(e) 15 years of
government service
and attainment of
age 65 years.
Petitioners, however, insist that a government employee who
has reached the compulsory retirement age of sixty-five (65)
years, with at least fifteen (15) years of service in the
government, has no choice save to retire under the
provisions of Section 12(e) of C.A. No. 186 as amended (i.e.,
R.A. No. 660), retirement thereunder being "automatic and
compulsory."
The Court is unable to agree. While Section 12(e) of C.A.
No. 186 as amended provides that "[r]etirement shall be
automatic and compulsory at the age of 65 years," there is
nothing in the statute to suggest that a government
employee who, like private respondent Manapat, happens to
satisfy the requirements not only of Section 12(e). but also
Section 12(a), 12(b) and 12(c), must necessarily retire under
Section 12(e). We find it very difficult to understand why a
government employee who reaches the compulsory
retirement age of sixty-five (65) but who has served a total,
not of fifteen (15) years (the minimum required under 12[e])
but rather thirty-five (35) years (i.e., more than the years of
service specified under 12[a], 12[b] and 12[c]), should be
regarded as deprived of the right to retire under 12(c) (i.e.,
R.A. No. 1616 as amended), where the required number of
years of services is only twenty (20).
The interpretation urged by petitioners is conspicuously at
war with the basic policy purpose of C.A. No. 186 as
amended by R.A. No. 1616 which is, of course, to create an
added incentive for qualified government employees to
remain in the service of the government. The basic principles
for the construction of statutes tell us that a statute must be
read in such a way as to give effect to the purpose projected
in the statute. Under this principle of effectiveness,
retirement statutes, in case of a real as distinguished from a
merely ostensible doubt or ambiguity, must be so construed
as to give meaning and effect to their humanitarian purposes
and so as reasonably to benefit employees who had opted to
stay in the services of the government for so many
years. 3 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 twenty (20) years
of service. The benefits of Section 12(c) are, under its

This provision of law . . . is mandatory

only [in respect of] those who have
reached the age of [sixty -five] 65 years
and have rendered at least fifteen [15]
years of government service but not [in
respect of] those who have rendered at
least twenty (20) years of service. For, in
the latter case, the retiree is given the
option to retire under the provisions
of Republic Act No. 1616 [i.e. s. 12 (c),
C.A. No.186], amending Commonwealth
Act No. 186. And this is true regardless
of the age of the retiree. . . .
xxx xxx xxx
The enactment of Republic Act No. 1616 is exactly intended
to provide for two [2] other modes of retirement, and these
are:
(1) retirement after rendering a total
service of thirty (30) years, regardless of
age;
(2) retirement after rendering at least
twenty (20) years of service, regardless
of age;
It is crystal clear, therefore, that a
retiree, regardless of age, that is,
whether or not he is 65 [sixty-five] years
at the time of his retirement, for as long
as he has rendered at least twenty (20)
years of service or has rendered a total
service of thirty (30) years, can retire
under the provisions of Republic Act
No. 1616. 4 (Emphasis supplied)
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
sixty-five (65) years of age the option to remain in the

government service in order to complete the 15-year

minimum service requirement. 5
We consider, therefore, and so hold that an employee who
shall have satisfied the requirements for retirement under
more than one (1) subsection of Section 12 of C.A. No. 186
as amended is entitled to choose the subsection (whose
requirement he has complied with and) under which he shall
retire. The option of retiring under Section 12(c) or Section
12(e), in the circumstances of this case, belongs to private
respondent Manapat and not to his employer, the City of
Manila. That option cannot be taken away from the retiree by
the employer, which is precisely what petitioners purported
to do through the medium of the "policy" of restricting the
options open to a retiree who has reached the age of sixtyfive (65) to retirement under Section 12(e) even though such
retiree simultaneously satisfies the requisites of retirement
under some other subsection or subsections of Section 12.
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.
We turn to the second issue of whether or not 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.
The application for retirement of Manapat having been
approved and adjusted under the provisions of Section
12(c), C.A. No. 186 as amended, it became 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. We expressly reject the
argument of petitioners that the funding of private
respondent's retirement gratuity under Section 12(c) is
"discretionary" on the part of such employer.
The fact that petitioner City of Manila may have no item in its
General Appropriation Ordinance specifically earmarking an
amount of P486,634.84 for payment to Mr. Manapat,
presents no legal obstacle. In Baldivia, et al.v. Lota,
etc., 6 the petitioners were denied payment of their terminal
leave pay because allegedly the Municipality of Taal,
Batangas, had no budget or appropriation ordinance setting
aside the sums necessary to pay petitioners' terminal leave
pay. This Court, through the then Mr. Justice and later Mr.
Chief Justice Roberto Concepcion held that:
Indeed, respondent could have, and
should have, either included the claim of
petitioners herein in the general budget
he is bound to submit, pursuant to
section
2295
of
the
Revised
Administrative Code, or prepared a
special budget for said claim, and urged

the municipal council to appropriate the

sum necessary therefor. In any event, if
the municipal mayor fails or refuses to
make the necessary appropriation,
petitioners may bring an action against
the municipality for the recovery of what
is due them and after securing a
judgment therefor, seek a writ of
mandamus against the municipal
council and the municipal mayor to
compel the enactment of approval of the
appropriation ordinance necessary
therefor. 7
(Emphasis supplied)
In the more recent case of Municipality of Makati v. Court of
Appeals, 8 the Court went a little further and held
that mandamus was available to compel, not only the
enactment and approval of the necessary appropriation
ordinance but also the corresponding payment of municipal
funds therefor:
Nevertheless, this is not to say that
private respondent and [PNB] are left
with no legal recourse. Where a
municipality fails or refuses, without
justifiable reason, to effect payment of a
final money judgment rendered against
it, the claimant may avail of the remedy
of mandamus in order to compel the
enactment and approval of the
necessary appropriation ordinance, and
the corresponding disbursement of
municipal funds therefor. (See Viuda De
Tan Toco v. The Municipal Council of
Iloilo, 49 Phil. 52 [1926]; Baldivia v. Lota,
107 Phil. 1099 [1960]; Yuviengco v.
Gonzales, 108 Phil. 247 [1960]). 9
In fact, however, the Court of Appeals has pointed out that
the City of Manila does have an appropriation authorizing
payment of retirement claims like those of Mr. Manapat:
Even assuming, for the sake of
argument, that payment of retirement
gratuities under R.A. 1616 is indeed
subject to the availability of funds, still
respondents-appellees cannot escape
or without payment to petitionerappellant for the following reason:
In 1990, the City of Manila had an
annual appropriation for retirement
benefits
in
the
amount
of

P14,000,000.00 (Exhibit "J-1"). In view

of its failure to enact a new budget for
the fiscal year 1991 (the year this case
was filed), its budget for 1990 was
considered re-enacted, hence, the
aforementioned
appropriation
for
retirement purpose was deemed in
force and effect at the time of the filling
of this case on January 22, 1991.
Therefore,
respondents-appellees
cannot claim that the City of Manila had
no available funds for the purpose. And
this is especially true considering
that the said appropriation cannot be
used for any other purpose, the same
being classified as "Statutory and
Contractual Obligation" (Exhibit "J-2"),
and the assurance of the City Budget
Officer, Eufemia Domiguez, to indicate
the source of funds to pay petitionerappellant's claim provided only that his
(petitioner-appellant) "request will be
acted upon favorably by the foregoing
officials." (Exhibit "G")."10 (Emphasis
supplied)
We must, moreover, underscore that 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. For Section 12(c) provides
in part as follows:
This
gratuity
is
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 of its
appropriations. . . . .(Emphasis supplied)
In other words, Section 12(c) itself furnishes statutory
authority to petitioners to pay Manapat's claim out of any
savings the City of Manila may have from its other
appropriations.
One final point. The Court of Appeals awarded private
respondent the amount of P30,000.00 as moral damages
and another P30,000.00 as attorney's fees. Viewed as a
whole, the record does not show, in a clear and convincing
manner, the evident bad faith and arbitrariness on the part of
petitioners which generate liability for moral damages; we
therefore delete this award. Upon the other hand, the award
of attorney's fees is entirely just and equitable since
petitioners' act or omission compelled private respondent

Manapat, a life-long government employee, to have recourse

to litigation to protect his right to retirement benefits. 11
WHEREFORE, the Petition for Review is hereby DENIED for
lack of merit and the questioned Decision of the respondent
Court of Appeals is hereby AFFIRMED, expected that the
award of P30,000.00 "as and for moral damages" is hereby
DELETED. Costs against petitioners.
SO ORDERED.