[G.R. No. 138200.

February 27, 2002]

SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), petitioner, vs. ROBERTO
MABALOT, respondent.
DECISION
BUENA, J.:
At the core of controversy in the instant Petition for Review on Certiorari is the validity of Memorandum Order No. 96-
735, dated 19 February 1996, and Department Order No. 97-1025, dated 29 January 1997, both issued by the Secretary
of the Department of Transportation and Communications (DOTC).
The facts are uncontested.
On 19 February 1996, then DOTC Secretary Jesus B. Garcia, Jr., issued Memorandum Order No. 96-735 addressed to Land
Transportation Franchising Regulatory Board (LTFRB) Chairman Dante Lantin, viz:
In the interest of the service, you are hereby directed to effect the transfer of regional functions of that office to the
DOTCCAR Regional Office, pending the creation of a regular Regional Franchising and Regulatory Office thereat, pursuant
to Section 7 of Executive Order No. 202.
Organic personnel of DOTC-CAR shall perform the LTFRB functions on a concurrent capacity subject to the direct
supervision and control of LTFRB Central Office.
On 13 March 1996, herein respondent Roberto Mabalot filed a petition for certiorari and prohibition with prayer for
preliminary injunction and/or restraining order,[1] against petitioner and LTFRB Chairman Lantin, before the Regional Trial
Court (RTC) of Quezon City, Branch 81,[2] praying among others that Memorandum Order No. 96-735 be declared illegal
and without effect.
On 20 March 1996, the lower court issued a temporary restraining order enjoining petitioner from implementing
Memorandum Order No. 96-735. On 08 April 1996, the lower court, upon filing of a bond by respondent, issued a writ of
preliminary injunction. On 25 April 1996, then DOTC Secretary Amado Lagdameo, Jr. filed his answer to the petition.
Thereafter, on 29 January 1997, Secretary Lagdameo issued the assailed Department Order No. 97-1025, to wit:
Pursuant to Administrative Order No. 36, dated September 23, 1987, and for purposes of economy and more effective
coordination of the DOTC functions in the Cordillera Administrative Region (CAR), the DOTC-CAR Regional Office, created
by virtue of Executive Order No. 220 dated July 15, 1987, is hereby established as the Regional Office of the LTFRB and
shall exercise the regional functions of the LTFRB in the CAR subject to the direct supervision and control of LTFRB Central
Office.
The budgetary requirement for this purpose shall come from the Department until such time that its appropriate budget
is included in the General Appropriations Act.
After trial, the Office of the Solicitor General (OSG) moved to reopen the hearing in the lower court for the purpose of
enabling petitioner to present Department Order No. 97-1025. In an Order dated 18 February 1997, the lower court
granted the motion.
On 03 April 1997, respondent filed a Motion for Leave to File Supplemental Petition assailing the validity of Department
Order No. 97-1025. On 14 May 1997, the OSG presented Department Order No. 97-1025 after which petitioner filed a
formal offer of exhibits.
In an Order dated 09 June 1997, the lower court admitted petitioners documentary exhibits over the objection of
respondent. Likewise, the lower court admitted the supplemental petition filed by respondent to which petitioner filed
an answer thereto.
On 31 March 1999, the lower court rendered a decision the decretal portion of which reads:
WHEREFORE, judgment is hereby rendered declaring Memorandum Order Nos. 96-733[3] dated February 19, 1996 and 97-
1025 dated January 27, 1997 of the respondent DOTC Secretary null and void and without any legal effect as
being violative of the provision of the Constitution against encroachment on the powers of the legislative department and
also of the provision enjoining appointive officials from holding any other office or employment in the Government.
The preliminary injunction issued on May 13, 1996 is hereby made permanent.
No pronouncement as to costs.
It is so ordered.
Hence, the instant petition where this Court is tasked in the main to resolve the issue of validity of the subject
administrative issuances by the DOTC Secretary.
In his Memorandum[4], respondent Mabalot principally argues that a transfer of the powers and functions of the LTFRB
Regional Office to a DOTC Regional Office or the establishment of the latter as an LTFRB Regional Office is
unconstitutional for being an undue exercise of legislative power. To this end, respondent quoted heavily the lower courts
rationale on this matter, to wit:
With the restoration of Congress as the legislative body, the transfer of powers and functions, specially those quasi-judicial
(in) nature, could only be effected through legislative fiat. Not even the President of the Philippines can do so. And much
less by the DOTC Secretary who is only a mere extension of the Presidency. Among the powers of the LTFRB are to issue
injunctions, whether prohibitory (or) mandatory, punish for contempt and to issue subpoena and
subpoena duces tecum. These powers devolve by extension on the LTFRB regional offices in the performance of their
functions. They cannot be transferred to another agency of government without congressional approval embodied in a
duty enacted law. (Emphasis ours)
We do not agree. Accordingly, in the absence of any patent or latent constitutional or statutory infirmity attending the
issuance of the challenged orders, this Court upholds Memorandum Order No. 96-735 and Department Order No. 97-1025
as legal and valid administrative issuances by the DOTC Secretary. Contrary to the opinion of the lower court, the
President - through his duly constituted political agent and alter ego, the DOTC Secretary in the present case - may legally
and validly decree the reorganization of the Department, particularly the establishment of DOTC-CAR as the LTFRB
Regional Office at the Cordillera Administrative Region, with the concomitant transfer and performance of public functions
and responsibilities appurtenant to a regional office of the LTFRB.
At this point, it is apropos to reiterate the elementary rule in administrative law and the law on public officers that a public
office may be created through any of the following modes, to wit, either (1) by the Constitution (fundamental law), (2) by
law (statute duly enacted by Congress), or (3) by authority of law.[5]
Verily, Congress can delegate the power to create positions. This has been settled by decisions of the Court upholding the
validity of reorganization statutes authorizing the President to create, abolish or merge offices in the executive
department.[6] Thus, at various times, Congress has vested power in the President to reorganize executive agencies and
redistribute functions, and particular transfers under such statutes have been held to be within the authority of the
President.[7]
In the instant case, the creation and establishment of LTFRB-CAR Regional Office was made pursuant to the third mode
- by authority of law, which could be decreed for instance, through an Executive Order (E.O.) issued by the President or
an order of an administrative agency such as the Civil Service Commission[8] pursuant to Section 17, Book V of E.O. 292,
otherwise known as The Administrative Code of 1987. In the case before us, the DOTC Secretary issued the assailed
Memorandum and Department Orders pursuant to Administrative Order No. 36 of the President, [9] dated 23 September
1987, Section 1 of which explicitly provides:
Section 1. Establishment of Regional Offices in the CAR- The various departments and other agencies of the National
Government that are currently authorized to maintain regional offices are hereby directed to establish forthwith their
respective regional offices In the Cordillera Administrative Region with territorial coverage as defined under Section 2 of
Executive Order No. 220 dated July 15, 1987, with regional headquarters at Baguio City.
Emphatically the President, through Administrative Order No. 36, did not merely authorize but directed, in no uncertain
terms, the various departments and agencies of government to immediately undertake the creation and establishment of
their regional offices in the CAR. To us, Administrative Order No. 36 is a clear and unequivocal directive and mandate - no
less than from the Chief Executive - ordering the heads of government departments and bureaus to effect the
establishment of their respective regional offices in the CAR.
By the Chief Executives unequivocal act of issuing Administrative Order No. 36 ordering his alter ego - the DOTC Secretary
in the present case - to effectuate the creation of Regional Offices in the CAR, the President, in effect, deemed it fit and
proper under the circumstances to act and exercise his authority, albeit through the various Department Secretaries, so
as to put into place the organizational structure and set-up in the CAR and so as not to compromise in any significant way
the performance of public functions and delivery of basic government services in the Cordillera Administrative Region.
Simply stated, it is as if the President himself carried out the creation and establishment of LTFRB-CAR Regional Office,
when in fact, the DOTC Secretary, as alter ego of the President, directly and merely sought to implement the Chief
Executives Administrative Order.
To this end, Section 17, Article VII of the Constitution mandates:
The President shall have control of all executive departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.
By definition, control is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of the former for that of the latter.[10] It includes the
authority to order the doing of an act by a subordinate or to undo such act or to assume a power directly vested in him by
law.[11]
From the purely legal standpoint, the members of the Cabinet are subject at all times to the disposition of the President
since they are merely his alter ego.[12] As this Court enunciated in Villena vs. Secretary of the Interior,[13] without
minimizing the importance of the heads of various departments, their personality is in reality but the projection of that of
the President. Thus, their acts, 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.
Applying the foregoing, it is then clear that the lower courts pronouncement - that the transfer of powers and functions
and in effect, the creation and establishment of LTFRB-CAR Regional Office, may not be validly made by the Chief
Executive, much less by his mere alter ago and could only be properly effected through a law enacted by Congress -is to
say the least, erroneous.
In Larin vs. Executive Secretary,[14] this Court through the ponencia of Mr. Justice Justo Torres, inked an extensive
disquisition on the continuing authority of the President to reorganize the National Government, which power includes
the creation, alteration or abolition of public offices. Thus in Larin, we held that Section 62 of Republic Act 7645 (General
Appropriations Act [G.A.A.] for FY 1993) evidently shows that the President is authorized to effect organizational changes
including the creation of offices in the department or agency concerned:
Section 62. Unauthorized organizational changes.- Unless otherwise created by law or directed by the President of the
Philippines, no organizational unit or changes in key positions in any department or agency shall be authorized in their
respective organization structures and be funded from appropriations by this act.
Petitioners contention in Larin that Sections 48 and 62 of R.A. 7645 were riders, deserved scant consideration from the
Court, Well settled is the rule that every law has in its favor the presumption of constitutionality. Unless and until a specific
provision of the law is declared invalid and unconstitutional, the same is valid and binding for all intents and purposes.[15]
Worthy to note is that R.A. 8174 (G.A.A for FY 1996) contains similar provisions as embodied in Section 72 (General
Provisions) of said law entitled Organizational Changes and Section 73 (General Provisions) thereof entitled
Implementation of Reorganization. Likewise, R.A. 8250 (G.A.A. for FY 1997) has Section 76 (General Provisions) entitled
Organizational Changes and Section 77 (General Provisions) entitled Implementation of Reorganization.
In the same vein, Section 20, Book III of E.O. No. 292, otherwise known as the Administrative Code of 1987, provides a
strong legal basis for the Chief Executives authority to reorganize the National Government, viz:
Section 20. Residual Powers. - Unless Congress provides otherwise, the President shall exercise such other powers and
functions vested in the President which are provided for under the laws and which are not specifically enumerated above
or which are not delegated by the President in accordance with law. (Emphasis ours)
This Court, in Larin, had occasion to rule that:
This provision speaks of such other powers vested in the President under the law. What law then gives him the power to
reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. 1416. These decrees expressly grant
the President of the Philippines the continuing authority to reorganize the national government, which includes the power
to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions,
services and activities and to standardize salaries and materials. The validity of these two decrees are unquestionable. The
1987 Constitution clearly provides that all laws, decrees, executive orders, proclamations, letters of instructions and other
executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed or
revoked.[16] So far, there is yet no law amending or repealing said decrees.
The pertinent provisions of Presidential Decree No. 1416, as amended by Presidential Decree No. 1772, reads:
1. The President of the Philippines shall have continuing authority to reorganize the National Government. In exercising
this authority, the President shall be guided by generally acceptable principles of good government and responsive
national development, including but not limited to the following guidelines for a more efficient, effective, economical and
development-oriented governmental framework:
xxx
b) Abolish departments, offices, agencies or functions which may not be necessary, or create those which are necessary,
for the efficient conduct of government functions, services and activities;
c) Transfer functions, appropriations, equipment, properties, records and personnel from one department, bureau, office,
agency or instrumentality to another;
d) Create, classify, combine, split, and abolish positions;
e) Standardize salaries, materials, and equipment;
f) Create, abolish, group, consolidate, merge or integrate entities, agencies, instrumentalities, and units of the National
Government, as well as expand, amend, change, or otherwise modify their powers, functions, and authorities, including,
with respect to government-owned or controlled corporations, their corporate life, capitalization, and other relevant
aspects of their charters. (As added by P.D. 1772)
g) Take such other related actions as may be necessary to carry out the purposes and objectives of this decree. (As added
by P.D. 1772) (Emphasis supplied.)
In fine, the designation[17] and subsequent establishment[18] of DOTC-CAR as the Regional Office of LTFRB in the Cordillera
Administrative Region and the concomitant exercise and performance of functions by the former as the LTFRB-CAR
Regional Office, fall within the scope of the continuing authority of the President to effectively reorganize the Department
of Transportation and Communications.
Beyond this, it must be emphasized that the reorganization in the instant case was decreed in the interest of the
service[19] and for purposes of economy and more effective coordination of the DOTC functions in the Cordillera
Administrative Region.[20] In this jurisdiction, reorganization is regarded as valid provided it is pursued in good faith. As a
general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more
efficient.[21] To our mind, the reorganization pursued in the case at bar bears the earmark of good faith. As petitioner
points out,[22] tapping the DOTC-CAR pending the eventual creation of the LTFRB Regional Office is economical in terms of
manpower and resource requirements, thus, reducing expenses from the limited resources of the government.
Furthermore, under Section 18, Chapter 5, Title XV, Book IV of E.O. 292[23] and Section 4 of E.O. 202,[24] the Secretary of
Transportation and Communications, through his duly designated Undersecretary, shall exercise administrative
supervision and control[25] over the Land Transportation Franchising and Regulatory Board (Board).
Worthy of mention too is that by express provision of Department Order No. 97-1025, the LTFRB-CAR Regional Office is
subject to the direct supervision and control of LTFRB Central Office. Under the law,[26] the decisions, orders or resolutions
of the Regional Franchising and Regulatory Offices shall be appealable to the Board within thirty (30) days from receipt of
the decision; the decision, order or resolution of the Board shall be appealable to the DOTC Secretary. With this appellate
set-up and mode of appeal clearly established and in place, no conflict or absurd circumstance would arise in such manner
that a decision of the LTFRB-CAR Regional Office is subject to review by the DOTC-CAR Regional Office.
As to the issue regarding Sections 7 and 8, Article IX-B of the Constitution, we hold that the assailed Orders of the DOTC
Secretary do not violate the aforementioned constitutional provisions considering that in the case of Memorandum Order
No. 96-735, the organic personnel of the DOTC-CAR were, in effect, merely designated to perform the additional duties
and functions of an LTFRB Regional Office subject to the direct supervision and control of LTFRB Central Office, pending the
creation of a regular LTFRB Regional Office.
As held in Triste vs. Leyte State College Board of Trustees:[27]
To designate a public officer to another position may mean to vest him with additional duties while he performs the
functions of his permanent office. Or in some cases, a public officer may be designated to a position in an acting capacity
as when an undersecretary is designated to discharge the functions of a Secretary pending the appointment of a
permanent Secretary.
Assuming arguendo that the appointive officials and employees of DOTC-CAR shall be holding more than one office or
employment at the same time as a result of the establishment of such agency as the LTFRB-CAR pursuant to Department
Order No. 97-1025, this Court is of the firm view that such fact still does not constitute a breach or violation of Section 7,
Article IX-B of the Constitution. On this matter, it must be stressed that under the aforementioned constitutional provision,
an office or employment held in the exercise of the primary functions of ones principal office is an exception to, or not
within the contemplation, of the prohibition embodied in Section 7, Article IX-B.
Equally significant is that no evidence was adduced and presented to clearly establish that the appointive officials and
employees of DOTC-CAR shall receive any additional, double or indirect compensation, in violation of Section 8, Article IX-
B of the Constitution. In the absence of any clear and convincing evidence to show any breach or violation of said
constitutional prohibitions, this Court finds no cogent reason to declare the invalidity of the challenged orders.
WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED. ACCORDINGLY, the decision dated 31
March 1999 of the Regional Trial Court of Quezon City-Branch 81 in Special Civil Action Case No. Q-96-26868 is REVERSED
and SET ASIDE.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr.,
Sandoval-Gutierrez, and Carpio, JJ., concur.
Vitug, J., in the result

G.R. No. 111091 August 21, 1995

ENGINEER CLARO J. PRECLARO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

KAPUNAN, J.:
On 14 June 1990, petitioner was charged before the Sandiganbayan with a violation of Sec. 3(b) of R.A. No. 3019 as
amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The information against him read as follows:
That on or about June 8, 1990, or sometime prior thereto, in Quezon City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a public officer, being then the Project Manager/ Consultant of the Chemical
Mineral Division, Industrial Technology Development Institute, Department of Science and Technology, a component of
the Industrial Development Institute (ITDI for brevity) which is an agency of the Department of Science and Technology
(DOST for brevity), wherein the Jaime Sta. Maria Construction undertook the construction of the building in Bicutan,
Taguig, Metro Manila, with a total cost of SEVENTEEN MILLION SIX HUNDRED NINETY FIVE THOUSAND PESOS
(P17,695,000.00) jointly funded by the Philippine and Japanese Governments, and while the said construction has not yet
been finally completed, accused either directly requested and/or demanded for himself or for another, the sum of TWO
HUNDRED THOUSAND PESOS (P200,000.00), claimed as part of the expected profit of FOUR HUNDRED SIXTY THOUSAND
PESOS (P460,000.00) in connection with the construction of that government building wherein the accused had to
intervene under the law in his capacity as Project Manager/Consultant of said construction — said offense having been
committed in relation to the performance of his official duties.
CONTRARY TO LAW.1
On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the charges against him.
On 30 June 1993, after trial on the merits, the Second Division of the Sandiganbayan rendered judgment finding petitioner
guilty beyond reasonable doubt. The dispositive portion reads as follows:
WHEREFORE, judgment is hereby rendered finding accused Claro Preclaro y Jambalos GUILTY beyond reasonable doubt
of the violation of Section 3, paragraph (b) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, and he is hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) YEARS and ONE
(1) MONTH, as the minimum, to TEN (10) YEARS and ONE (1) DAY, as the maximum, perpetual disqualification from public
office and to pay the costs of this action.
SO ORDERED.2
The antecedent facts are largely undisputed.
On 1 October 1989, the Chemical Mineral Division of the Industrial Technology Development Institute (ITDI), a component
of the Department of Science and Technology (DOST) employed Petitioner under a written contract of services as Project
Manager to supervise the construction of the ITDI-CMD (JICA) Building at the DOST Compound in Bicutan, Taguig, Metro
Manila.3
The contract was to remain in effect from October 1, 1989 up to the end of the construction period unless sooner
terminated.4 Petitioner was to be paid a monthly salary drawn from counter-part funds duly financed by foreign-assisted
projects and government funds duly released by the Department of Budget and Management.5
In November 1989, to build the aforementioned CMD Structure, DOST contracted the services of the Jaime Sta. Maria
Construction Company with Engr. Alexander Resoso, as the company's project engineer. 6
How petitioner committed a violation of the Anti-Graft & Corrupt Practices Act is narrated in the Comment of the Solicitor
General and amply supported by the records. The material portions are hereunder reproduced:
xxx xxx xxx
3. In the month of May, 1990, Alexander Resoso, Project Engineer of the Sta. Maria Construction Company, was in the
process of evaluating a Change Order for some electricals in the building construction when petitioner approached him at
the project site (p. 11, 25, Ibid.).
4. Unexpectedly, petitioner made some overtures that expenses in the Change Order will be deductive (meaning, charged
to the contractor by deducting from the contract price), instead of additive (meaning, charged to the owner). Petitioner
intimated that he can forget about the deductive provided he gets P200,000.00, a chunk of the contractor's profit which
he roughly estimated to be around P460,000.00 (pp. 12-13, 22, Ibid.).
5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the owner of Sta. Maria Construction Company, Resoso
thereafter asked petitioner if he wanted a rendezvous for him to receive the money. Petitioner chose Wendy's Restaurant,
corner E. Delos Santos Avenue and Camias Street, on June 6, 1990 at around 8:00 o'clock in the evening (p. 14, Ibid.).
6. However, Sta. Maria, Sr. asked for two (2) more days or until the 8th of June, perceiving financial constraints (Ibid.).
7. Petitioner relented, saying "O.K. lang with me because we are not in a hurry." (p. 15, Ibid.) Petitioner was thereafter
asked to bring along the result of the punch list (meaning, the list of defective or correctible works to be done by the
contractor) (p. 15, Ibid.; p. 10, TSN, 18 Oct. 1991).
8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded to the National Bureau of Investigation (NBI) to report the incident
(p. 15, 35, Ibid.).
9. The NBI suggested an entrapment plan to which Sta. Maria, Sr. signified his conformity (p. 16, TSN, 12 Oct. 1990).
Accordingly, Sta. Maria, Sr. was requested to produce the amount of P50,000.00 in P500.00 denomination to represent
the grease money (p. 37, TSN, 6 Sept. 1990).
10. The next day, or on 8 June 1990, Resoso delivered the money to the NBI. Thereafter, the money was dusted with
flourescent powder and placed inside an attache case (pp. 16-17, Ibid.). Resoso got the attache case and was instructed
not to open it. Similarly, he was advised to proceed at the Wendy's Restaurant earlier than the designated time where a
group of NBI men awaited him and his companion, Sta. Maria, Jr. (pp. 17-18, Ibid.).
11. Hence, from the NBI, Resoso passed by the Jade Valley Restaurant in Timog, Quezon City, to fetch Sta. Maria, Jr. (Ibid.).
12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at the Wendy's Restaurant. They were led by the NBI men to a
table previously reserved by them which was similarly adjacent to a table occupied by them (pp. 18-19, Ibid.).
13. Twenty minutes later, petitioner arrived. Supposedly, the following conversation took place, to wit:
JUSTICE BALAJADIA:
q. When Dave Preclaro arrived, what did he do?
a. We asked him his order and we talked about the punch list.
q. What was his comment about the punch list?
a. He told us that it is harder to produce small items than big ones.
q. How long did you converse with Engr. Claro Preclaro?
a. I think thirty minutes or so.
q. Was Preclaro alone when he came?
a. Yes, Your Honor.
xxx xxx xxx
PROS. CAOILI:
q. When you talk[ed] about his punch list, did you talk about anything else?
a. Engineer Sta. Maria, Jr., they were conversing with Dave Preclaro and he told [him], "O, paano na."
JUSTICE ESCAREAL:
q. Who said "Paano na?"
a. Engineer Sta. Maria, [Jr.]. And then Preclaro told [him], "Paano, How will the money be arranged and can I bring it?" he
said.
And then Jimmy Sta. Maria, Jr. told him it was arranged on two bundles on two envelopes.
And then Dave Preclaro told, "Puede" and he asked Jimmy Sta. Maria, Jr. if there is express teller and could he deposit
during night time but Engineer Sta. Maria, Jr. told him, "I do not have any knowledge or I do not have any express teller
you can deposit. I only know credit card."
PROS. CAOILI:
q. When Engr. Sta. Maria intervened and interviewed him that way, was there anything that happened?
a. Jimmy Sta. Maria, Jr. handed two envelopes to Preclaro.
q. Did Claro Preclaro receive these two envelopes from Engineer Sta. Maria?
a. Yes, sir. (pp. 19-21, Ibid., See also pp. 13-14, TSN, 29 Oct. 1990.)
14. From the moment petitioner received the two envelopes with his right hand, thereafter placing them under his left
armpit, he was accosted by the NBI men (p. 22, TSN, 12 Oct. 1990).
15. A camera flashed to record the event. Petitioner instinctively docked to avoid the taking of pictures. In such manner,
the two envelopes fell (p. 23, Ibid.).
16. The NBI men directed petitioner to pick up the two envelopes. Petitioner refused. Hence, one of the NBI men picked
up the envelopes and placed them inside a big brown envelope (p. 27, Ibid.)
17. Petitioner was thenceforth brought to the NBI for examination (p. 28; Ibid.).
18. At the NBI Forensic Chemistry Section, petitioner's right palmar hand was tested positive of flourescent powder. The
same flourescent powder, however, cannot be detected in petitioner's T-shirt and pants (p. 5, TSN, 29 Oct. 1990).7
xxx xxx xxx
Thus, as brought out at the outset, an information was filed against petitioner which, after due hearing, resulted in his
conviction by the Sandiganbayan. Not satisfied with the decision, petitioner instituted the present petition for review,
ascribing to the Sandiganbayan the following errors:
1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF THE CASE, INSTEAD OF DISMISSING IT FOR LACK OF
JURISDICTION, THE [PETITIONER] NOT BEING A PUBLIC OFFICER; and
2. THE SANDIGANBAYAN ERRED IN NOT RULING THAT NOT ALL THE ELEMENTS OF THE OFFENSE CHARGED HAVE BEEN
ESTABLISHED BEYOND REASONABLE DOUBT AND/OR THAT THE GUILT OF THE [PETITIONER] HAS NOT BEEN ESTABLISHED
BEYOND REASONABLE DOUBT.
We find the petition unmeritorious.
On the first issue, petitioner asserts that he is not a public officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt
Practices Act (R.A. No. 3019 as amended), because he was neither elected nor appointed to a public office. Rather,
petitioner maintains that he is merely a private individual hired by the ITDI on contractual basis for a particular project
and for a specified period8 as evidenced by the contract of services9 he entered into with the ITDI. Petitioner, to further
support his "theory," alleged that he was not issued any appointment paper separate from the abovementioned contract.
He was not required to use the bundy clock to record his hours of work and neither did he take an oath of office. 10
We are not convinced by petitioner's arguments.
Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which, according to Sec. 2(b) thereof "includes
elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or
exemption service receiving compensation, even nominal, from the government. . . ."
The word "includes" used in defining a public officer in Sec. 2(b) indicates that the definition is not restrictive. The terms
"classified, unclassified or exemption service" were the old categories of positions in the civil service which have been
reclassified into Career Service and Non-Career Service 11 by PD 807 providing for the organization of the Civil Service
Commission 12 and by the Administrative Code of 1987. 13
Non-career service in particular is characterized by —
(1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service;and (2) tenure
which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his
pleasure, or which is limited to the duration of a particular project for which purpose employment was made.
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their
personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the government is in accordance with a special contract to
undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be
accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific
work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and
(5) Emergency and seasonal personnel. (Emphasis ours.) 14
From the foregoing classification, it is quite evident that petitioner falls under the non-career service category (formerly
termed the unclassified or exemption service) of the Civil Service and thus is a public officer as defined by Sec. 2(b) of the
Anti-Graft & Corrupt Practices Act (R.A. No. 3019).
The fact that petitioner is not required to record his working hours by means of a bundy clock or did not take an oath of
office became unessential considerations in view of the above-mentioned provision of law clearly including petitioner
within the definition of a public officer.
Similarly, petitioner's averment that he could not be prosecuted under the Anti-Graft & Corrupt Practices Act because his
intervention "was not required by law but in the performance of a contract of services entered into by him as a private
individual contractor," 15 is erroneous. As discussed above, petitioner falls within the definition of a public officer and as
such, his duties delineated in Annex "B" of the contract of services 16 are subsumed under the phrase "wherein the public
officer in his official capacity has to intervene under the law." 17 Petitioner's allegation, to borrow a cliche, is nothing but
a mere splitting of hairs.
Among petitioner's duties as project manager is to evaluate the contractor's accomplishment reports/billings 18hence, as
correctly ruled by the Sandiganbayan he has the "privilege and authority to make a favorable recommendation and act
favorably in behalf of the government," signing acceptance papers and approving deductives and additives are some
examples. 19 All of the elements of Sec. 3(b) of the Anti-Graft & Corrupt Practices Act are, therefore, present.
Anent the second issue, we likewise find Petitioner's allegations completely bereft of merit.
Petitioner insists that the prosecution has failed to establish his guilt beyond reasonable doubt and that the charges
against him should be rejected for being improbable, unbelievable and contrary to human nature.
We disagree.
Proof beyond reasonable doubt does not mean that which produces absolute certainty. Only moral certainty is required
or "that degree of proof which produces conviction in an unprejudiced mind." 20 We have extensively reviewed the records
of this case and we find no reason to overturn the findings of the Sandiganbayan.
Petitioner enumerates the alleged improbabilities and inconsistencies in the testimonies of the prosecution witnesses.
We shall examine the testimonies referred to with meticulousness.
Petitioner asserts that it was improbable for him to have demanded P200,000.00 from Engr. Resoso, when he could have
just talked directly to the contractor himself. It is quite irrelevant from whom petitioner demanded his percentage share
of P200,000.00 whether from the contractor's project engineer, Engr. Alexander Resoso or directly from the contractor
himself Engr. Jaime Sta. Maria Sr. That petitioner made such a demand is all that is required by Sec. 3(b) of R.A. No. 3019
and this element has been sufficiently established by the testimony of Engr. Resoso, thus:
xxx xxx xxx
Q You said when you were computing your Change Order Mr. Preclaro or Dave Preclaro whom you identified approached
you, what did you talk about?
A He mentioned to me that we are deductive in our Change Order three and four so after our conversation I told this
conversation to my boss that we are deductible in the Change Order three and four and then my boss told me to ask why
it is deductive.
Q Did you ask the accused here, Dave Preclaro why it is considered deductive?
A Yes, sir.
Q What was his answer if any?
A I asked him that my boss is asking me to ask you how come it became deductive when my computation is additive and
he told me that I have done so much for your company already and then he picked up cement bag paper bag and computed
our alleged profit amounting to One Hundred Sixty Thousand Pesos and then he told me that he used to use some
percentage in projects maximum and minimum and in our case he would use a minimum percentage and multiply to 60
and . . .
JUSTICE ESCAREAL:
Q What is 460?
A P460,000.00 and he said take of the butal and get two Hundred Thousand Pesos.
JUSTICE BALAJADIA:
What is the translation now?
WITNESS:
A And he said disregard the excess and I will just get the P200,000.00. (Emphasis ours.)
PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to your boss. (Emphasis ours.)
JUSTICE BALAJADIA:
Q What is P200,000.00?
A It is Two Hundred Thousand Pesos.
PROS. CAOILI:
Q What did you answer him when he told you that?
A He told me to forget the deductive and electrical and after that I told my boss what he told me.
Q Who is your boss?
A Santa Maria Sr.
Q What was the reaction of your boss when you relayed the message to Mr. Preclaro?
A The next day he told me to ask Dave where and when to pick up the money so the next day I asked Dave "Where do you
intend to get the money, the Boss wanted to know."
Q What was the answer of Dave?
A And he told me, Wendy's Restaurant at 3:00 o'clock.
Q When?
A June 6 Wednesday.
Q When he told you that did you comply with June 6 appointment?
A I told my boss what he told me again that the meeting will take place at Wendy's Restaurant corner Edsa and Camias
Street at around 8:00 o'clock p.m. June 6, Wednesday.
Q What did your boss tell you?
A The next day he told me to ask Dave.
Q What did your boss tell you?
A My boss told me to ask Dave to postpone the meeting on June 6 to be postponed on June 8 at the same place and same
time because my boss is having financial problem.
Q Did you relay the postponement to Dave Preclaro?
A Yes sir. I told what my boss told me.
Q What was his reaction?
A Dave told me "O.K. lang with me" because we are not in a hurry. Any way we are the ones to sign the acceptance papers
and my boss instructed me that on Friday to ask Dave to bring along the result of the punch list and if possible also to
bring along the acceptance papers to be signed by Dave, Lydia Mejia and Dr. Lirag the director.
Q What happened next after meeting with Preclaro to relay the postponement if any?
A Nothing happened. The next day, Thursday the boss instructed me to go with him to the NBI to give a statement.
Q Did you go to the NBI and report to the incident to the NBI?
A Yes sir.
Q Did you give a statement before any of the agents of the of the NBI?
A Yes sir. 21
xxx xxx xxx
Likewise, petitioner's alleged refusal to see Mr. Jaime Sta. Maria Sr. when the latter tried to arrange meetings with him
regarding his demand 22 does not weaken the cause against petitioner. It does not at all prove that petitioner did not ask
for money. Conceivably petitioner did not muster enough courage to ask money directly from the contractor himself.
Getting the amount through the project engineer would be safer because if Mr. Sta. Maria, Sr. had refused to give money,
petitioner could always deny having made the demand.
Petitioner contends that the percentage demanded in the amount of P200,000.00 is too high considering that the
estimated profit of the contractor from the CMD project is only P460,000.00. In petitioner's words, this would "scare the
goose that lays the golden egg." 23 We reject this argument. The aforementioned contractor's profit is petitioner's own
computation as testified to by Engr. Resoso:
xxx xxx xxx
A I asked him that my boss is asking me to ask you how come it became deductive when my computation is additive and
he told me that I have done so much for your company already and then he picked up cement bag paper bag and computed
our alleged profit amounting to One Hundred Sixty Thousand Pesos and then he told me that he used to use some
percentage in projects maximum and minimum and in our case he would use a minimum percentage and multiply to 460
and . . . (Emphasis ours.)
JUSTICE ESCAREAL:
Q What is 460?
A P460,000.00 and it ended to P215 thousand or P20,000.00 and he said take of the butal and get the Two Hundred
Thousand Pesos. (Emphasis ours.)
JUSTICE BALAJADIA:
What is the translation now?
WITNESS:
A And he said disregard the excess and I will just get the P200,000.00.
PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to your boss. 24
xxx xxx xxx
The records, however, do not show the true and actual amount that the Sta. Maria Construction will earn as profit. There
is, therefore, no basis for petitioner's contention as the actual profit may be lower or higher than his estimation.
Besides, as related by Engr. Resoso, petitioner considers the P200,000.00 percentage proper compensation since he has
allegedly done so much for the Sta. Maria construction company. 25
Petitioner also argues that:
According to STA. MARIA, SR., they were deductive by P280,000.00 (Id., pp. 34-35).
If STA. MARIA CONSTRUCTION was deductive in the amount of P280,000.00, why would the petitioner still demand
P200,000.00 which would increase the contractor's loss to P480,000.00!
It might have been different if the changes were additive where STA. MARIA CONSTRUCTION would have earned more,
thereby providing motive for the petitioner to ask for a percentage! 26
But this is precisely what petitioner was bargaining for — P200,000.00 in exchange for forgetting about the
deductive 27 and thus prevent the Sta. Maria Construction from incurring losses.
Petitioner's contention that it was impossible for him to make any demands because the final decision regarding
accomplishments and billing lies with the DOST technical committee is unacceptable. Petitioner is part of the
abovementioned technical committee as the ITDI representative consultant. This is part of his duties under the contract
of services in connection with which he was employed by the ITDI. Even, assuming arguendo that petitioner does not make
the final decision, as supervisor/consultant, his recommendations will necessarily carry much weight. Engr. Resoso
testified thus:
PROS. CAOILI:
Q As a Project Engineer to whom do you present your billing papers accomplishment report or purchase order?
A The billing paper was being taken cared of by the, of our office. I personally do my job as supervision in the construction.
Q Do you have any counterpart to supervise the project from the government side?
A Yes, we have.
Yes, the DOST have a technical Committee Infra-Structure Committee and also the ITDI as its own representative.
Q Who composed the Technical Committee of the DOST?
A A certain Engineer Velasco, Engineer Sande Banez and Engineer Mejia.
Q How about the ITDI?
A The ITDI representative composed of Dave Preclaro.
Q Who is this Dave Preclaro?
A He is the consultant of ITDI. (Emphasis ours.)
xxx xxx xxx
ATTY. CAOILI:
Q As Project Engineer do you consult to any body regarding your job?
A First if there is any problem in the site I consult my boss.
PROS. CAOILI:
Q How about with the other consultants representing the ITDI and DOST?
A In the construction site we have meeting every Monday to discuss any problem.
Q With whom do you discuss this problem?
A The Infra-structure Committee of DOST and the Infra-structure Committee of ITDI, the architect and the contractor. We
had weekly meetings.
Q What matters if any do you consult with Mr. Claro Preclaro?
ATTY. JIMENEZ:
No basis.
JUSTICE ESCAREAL:
They met on problems on Mondays.
ATTY. JIMENEZ:
But there is no mention of Preclaro specifically.
JUSTICE ESCAREAL:
With the representative of DOST and Preclaro
ATTY. JIMENEZ:
Does that also mean that Preclaro is also among the representatives he is going to consult with?
Well any way. . .
JUSTICE ESCAREAL:
Witness may answer the question.
Read back the question.
COURT STENOGRAPHER:
Reading back the question as ordered by the Court.
WITNESS:
A Every Monday meeting we tackle with accomplishment report the billing papers. 28 (Emphasis ours.)
xxx xxx xxx
Petitioner also claims that the testimonies of the prosecution witnesses regarding the entrapment itself are conflicting,
doubtful or improbable:
(aaa) according to RESOSO, only FOUR (4) P500 bills were dusted with flourescent powder and used in the alleged
entrapment.
Contradicting RESOSO, STA. MARIA, SR. said that he gave fifty thousand (P50,000.00) pesos in P500 denomination to the
NBI. 29
There is no such inconsistency. Said witnesses were testifying on two different subjects. Engr. Sta. Maria, Sr.'s testimony
touched on the amount he gave the NBI for use in the entrapment while Engr. Resoso's declaration referred only to the
number of bills dusted with flourescent powder.
Petitioner, likewise, misappreciated the following testimony of Resoso:
PROS. CAOILI:
Q What did he do with the two envelopes upon receiving the same?
A Then he asked Jaime Sta. Maria, Jr. if there is bank teller express, if he could deposit the money but Mr. Sta. Maria said,
"I do not have, I only have credit cards." 30
Petitioner intended to deposit the money in his own account not that of Mr. Sta. Maria, Jr. He was merely inquiring from
the latter if there was an express teller nearby where he could make the deposit. Mr. Sta. Maria Jr. himself testified as
follows:
A He asked me if there was express teller. I told him I do not know then he asked me whether it is possible to deposit at
the Express Teller at that time. I told him I don't know because I have no express teller card and he asked me how am I
going to arrange, how was it arranged if I will bring it, can I bring it. Then I told him that it was placed in two envelopes
consisting of 500 Peso bills and then he said "Okay na yan." 31
The failure of the NBI to take photographs of the actual turn-over of the money to petitioner is not fatal to the People's
cause. The transaction was witnessed by several people, among whom were Engr. Resoso, Mr. Sta. Maria Jr. and the NBI
agents whose testimonies on the circumstances before, during and after the turn-over are consistent, logical and credible.
According to NBI Agent Francisco Balanban Sr., they purposely took no photographs of the actual turn-over so as not to
alert and scare off the petitioner. During cross-examination Agent Balanban Jr. stated:
xxx xxx xxx
Q Now, of course, this entrapment operation, you made certain preparation to make sure that you would be able to gather
evidence in support of the entrapment?
A Yes sir.
Q As a matter of fact you even brought photographer for the purpose?
A That is right sir.
Q And that photographer was precisely brought along to record the entrapment?
A Yes sir.
Q From the beginning to the end, that was the purpose?
A At the time of the arrest sir.
ATTY. JIMENEZ:
From the time of the handing over of the envelopes until the entrapment would have been terminated?
A No sir we plan to take the photograph only during the arrest because if we take photographs he would be alerted during
the handing of the envelopes. (Emphasis ours.)
Q So you did not intend to take photographs of the act of handing of the envelopes to the suspect?
A We intended but during that time we cannot take photographs at the time of the handling because the flash will alert
the suspect. (Emphasis ours.)
JUSTICE ESCAREAL:
Why did you not position the photographer to a far distance place with camera with telescopic lens?
A We did not Your Honor.
ATTY. JIMENEZ:
So was it your intention to take photographs only at the time that he is already being arrested?
A Yes sir. 32
xxx xxx xxx
Petitioner insists that when his hands were placed under ultra-violet light, both were found negative for flourescent
powder. This is petitioner's own conclusion which is not supported by evidence. Such self-serving statement will not
prevail over the clear and competent testimony and the report 33 submitted by the forensic expert of the NBI Ms. Demelen
R. dela Cruz, who was the one who conducted the test and found petitioner's right palmar hand positive for flourescent
powder, the same hand he used, according to witnesses Resoso and Sta. Maria Jr., to get the money from the latter.
xxx xxx xxx
Q Mrs. dela Cruz since when have you been a Forensic Chemist at NBI?
A Since 1981 sir.
Q JUSTICE ESCAREAL:
Q By the way, is the defense willing to admit that the witness is a competent as . . . .
ATTY. JIMENEZ:
Admitted Your Honor.
PROS. CAOILI:
Madam Witness did you conduct a forensic examination in the person of one Dave Preclaro y Jambalos?
A Yes sir.
Q If that person whom you examined is here in court would you be able to recognize him?
ATTY. JIMENEZ:
We admit that the accused is the one examined by the witness.
ATTY. CAOILI:
Did you prepare the result of the examination in writing?
A Yes sir.
PROS. CAOILI:
Showing to you Physic Examination No. 90-961 which for purposes of identification has already been marked as Exh. H
what relation has this have with the report that you mentioned a while ago?
A This is the same report that I prepared sir.
Q How did you conduct such flourescent examination?
A The left and right hands of the accused were placed under the ultra violet lamp sir.
Q What was the result?
A It gave a . . . under the ultra violent lamp the palmer hands of the suspect gave positive result for the presence of
flourescent powder.
Q What palmar hands?
A Right hand sir.
Q What other examination did you conduct?
A And also the clothing, consisting of the t-shirts and the pants were examined. Under the ultra violet lamp the presence
of the flourescent powder of the t-shirts and pants cannot be seen or distinguished because the fibers or the material of
the cloth under the ultra violet lamp was flouresce.
Q Please tell the Court why the t-shirts and pants under the ultra violent lamp was flouresce?
A The materials or the fibers of the clothings it could have been dyed with flourescent dyes sir. 34
xxx xxx xxx
What we find improbable and contrary to human experience is petitioner's claim that he was set up by Engr. Sta. Maria
Sr. and Engr. Resoso for no other purpose but revenge on account, for petitioner's failure to recommend the Sta. Maria
Construction to perform the extra electrical works. 35
The Sandiganbayan has aptly ruled on this matter, thus:
For another, the claim of accused that there was ill-will on the part of the construction company is hardly plausible. It is
highly improbable for the company to embark on a malicious prosecution of an innocent person for the simple reason
that such person had recommended the services of another construction firm. And it is extremely impossible for such
company to enlist the cooperation and employ the services of the government's chief investigative agency for such an
anomalous undertaking. It is more in accord with reason and logic to presuppose that there was some sort of a mischievous
demand made by the accused in exchange for certain favorable considerations, such as, favorable recommendation on
the completeness of the project, hassle-free release of funds, erasure of deductives, etc. Indeed, the rationale for the
occurrence of the meeting and the demand for money is infinite and boundless. 36
As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who was then engaged in the construction of another
DOST building, would not risk his business or livelihood just to exact revenge which is neither profitable nor logical. As we
aptly stated in Maleg v. Sandiganbayan: 37
It is hard to believe that the complainant who is a contractor would jeopardize and prejudice his business interests and
risk being blacklisted in government infrastructure projects, knowing that with the institution of the case, he may find it
no longer advisable nor profitable to continue in his construction ventures. It is hardly probable that the complainant
would weave out of the blue a serious accusation just to retaliate and take revenge on the accused.
From the foregoing, the conclusion is inescapable that on the basis of the testimonial and documentary evidence
presented during the trial, the guilt of petitioner has been established beyond reasonable doubt.
WHEREFORE, the appealed decision of the Sandiganbayan is hereby AFFIRMED.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur.

88 Phil. 494

BENGZON, J.:
This petitioner was convicted, by the Fifth Division of the Court of Appeals, of a violation of article 210 of the Revised Penal
Code. He pleads for acquittal, insisting upon purely legal points.

The facts found by that appellate court are substantially the following:

"That on February 27, 1947, the accused, although appointed as a laborer, had been placed in charge of issuing summons
and subpoenas for traffic violations in the Sala of Judge Crisanto Aragon of the Municipal Court of the City of Manila. It
appears furthermore, from the testimony of Clerk of Court Baltazar and Fiscal De la Merced, then Deputy Fiscal attending
to traffic violations, that the accused had been permitted to write motions for dismissal of prescribed traffic cases against
offenders without counsel, and to submit them to the Court for action, without passing through the regular clerk. On the
day in question, Felix Rabia, the complainant herein, appeared and inquired from the accused about a subpoena that he
received. He was informed that it was in connection with a traffic violation for which said Rabia had been detained and
given traffic summons by an American MP. The accused after a short conversation went to Fiscal De la Merced and
informed the Fiscal that the case had already prescribed. The Fiscal having found such to be the case, instructed the
accused that if the traffic violator had no lawyer, he could write the motion for dismissal and have it signed by the party
concerned. This was done by the accused and after the signing by Felix Rabia the matter was submitted to the Court,
which granted the petition for dismissal.

"According to Felix Rabia and Agent No. 19 (Laforteza) of the National Bureau of Investigation, the accused informed Rabia
that the latter was subject to a fine of P15; that Rabia inquired whether the same could be reduced because he had no
money, and that the accused informed Rabia that he could fix the case if Rabia would pay him P10; which Rabia did and
the accused pocketed. This charged was denied by the accused."
The pertinent portion of article 210 of the Revised Penal Code reads:

"Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his
official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the
mediation of another, shall suffer the penalty of prision correctional in its minimum and medium periods and a fine of not
less than the value of the gift and not more than three times such value, in addition to the penalty corresponding to the
crime agreed upon if the same shall have been committed.
If the gift was accepted by the officer In consideration of the execution of an act which does not constitute a crime, and
the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph * * *."
As correctly indicated by counsel for petitioner the four essential elements of the offense are: (1) that the accused is a
public officer within the scope of article 203 of the Revised Penal Code; (2) that the accused received by himself or thru
another, some gift or present, offer or promise; (3) that such gift, present or promise has been given in consideration of
his commission of some crime or any act not constituting a crime; (4) that the crime or act relates to the exercise of the
functions of the public officer.

There can be no question that petitioner was a public officer within the meaning of article 20.3 which includes all persons
"who, by direct provision of law, popular election or appointment by competent authority, shall take part in the
performance of public functions in the Philippine Government, or shall perform in said government or any of its branches,
public duties as an employee, agent or subordinate official or any rank or class." That definition is quite comprehensive,
embracing as it does, every public servant from the highest to the lowest. For the purposes of the Penal Code, it obliterates
the standard distinction in the law of public officers between "officer" and "employee".

Petitioner, however, contending that the Court of Appeals erred in regarding him as a public officer, expounded and
discussed several grounds arranged under the following headings:

"a. The doctrine of 'the temporary performance of public functions by a laborer' should not apply in defendant's case.

b. The overt act imputed on the accused does not constitute a circumstance by which he may be considered a public
official.

c. His appointment as laborer came from one source, while the designation and delimitation of the functions of his
appointment came from another source."
After having carefully considered the expository argumentation, we are unconvinced. The law is clear, and we perceive
no valid reason to deny validity to the view entertained by the Spanish Supreme Court that, for the purposes of punishing
bribery, the temporary performance of public functions is sufficient to constitute a person a public official. This opinion,
it must be stated, was followed and applied by the Court of Appeals because the accused, although originally assigned*
to the preparation of summons and subpoenas, had been allowed in some instances to prepare motions for dismissal of
traffic cases.

And this Tribunal has practically concurred with the Spanish court when it opined[1] that a laborer in the Bureau of Posts
temporarily detailed as filer of money orders was a public officer within the meaning of article 203 of the Revised Penal
Code. Indeed, common sense indicates that the receipt of bribe money is just as pernicious when committed by temporary
employees as when committed by permanent officials.

The second essential element has likewise been proven. The Court of Appeals said this petitioner received ten pesos from
Rabia (and pocketed the money) in consideration of his "fixing" Rabia's case, and thereafter he "fixed" it by filing a motion
for dismissal, which was approved in due course.

In connection with the last two elements of the offense, it should be stated that our pronouncements under the first
sufficiently answer petitioner's propositions elaborated in several parts of his brief, revolving around the thesis that since
he was a mere laborer by appointment he may not be convicted, because the preparation of motions for dismissal is not
surely the official function of a laborer. Enough to recall that although originally appointed as a mere laborer, this
defendant was on several occasions designated or given the work to prepare motions for dismissal. He was consequently
temporarily discharging such public functions. And as in the performance thereof he accepted, even solicited, a monetary
reward, he is certainly guilty as charged.
Wherefore, there being no issue about the penalty imposed, the decision of the Court of Appeals is affirmed in toto. With
costs.

Paras, C. J., Feria, Pablo, Tuasont Montemayor, Jugo and Bautista Angelo, JJ., concur.

[G.R. No. 145368. April 12, 2002]

SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, respondent.
DECISION
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223 constituting a Committee for the
preparation of the National Centennial Celebration in 1998. The Committee was mandated to take charge of the
nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine
Independence and the Inauguration of the Malolos Congress.[1]
Subsequently, President Fidel V. Ramos issued Executive Order No. 128, reconstituting the Committee for the preparation
of the National Centennial Celebrations in 1998. It renamed the Committee as the National Centennial
Commission. Appointed to chair the reconstituted Commission was Vice-President Salvador H. Laurel. Presidents
Diosdado M. Macapagal and Corazon C. Aquino were named Honorary Chairpersons.[2]
Characterized as an ad-hoc body, the existence of the Commission shall terminate upon the completion of all activities
related to the Centennial Celebrations.[3] Like its predecessor Committee, the Commission was tasked to take charge of
the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine
Independence and the Inauguration of the Malolos Congress.
Per Section 6 of the Executive Order, the Commission was also charged with the responsibility to prepare, for approval of
the President, a Comprehensive Plan for the Centennial Celebrations within six (6) months from the effectivity of the
Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:
Sec. 3. The Commission shall be provided with technical and administrative staff support by a Secretariat to be composed
of, among others, detailed personnel from the Presidential Management Staff, the National Commission for Culture and
the Arts, and the National Historical Institute. Said Secretariat shall be headed by a full time Executive Director who shall
be designated by the President.
Sec. 4. The Commission shall be funded with an initial budget to be drawn from the Department of Tourism and the
presidents Contingent Fund, in an amount to be recommended by the Commission, and approved by the
President. Appropriations for succeeding years shall be incorporated in the budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) was created.[4] Petitioner
was among the nine (9) Expocorp incorporators, who were also its first nine (9) directors. Petitioner was elected Expocorp
Chief Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senate denouncing alleged
anomalies in the construction and operation of the Centennial Exposition Project at the Clark Special Economic Zone. Upon
motion of Senator Franklin Drilon, Senator Cosetengs privilege speech was referred to the Committee on Accountability
of Public Officers and Investigation (The Blue Ribbon Committee) and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35, creating an ad hoc and independent
citizens committee to investigate all the facts and circumstances surrounding the Philippine centennial projects, including
its component activities. Former Senator Rene A.V. Saguisag was appointed to chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the Senate its Committee Final Report
No. 30 dated February 26, 1999. Among the Committees recommendations was the prosecution by the Ombudsman/DOJ
of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public bidding, relative to the award of
centennial contracts to AK (Asia Construction & Development Corp.); for exhibiting manifest bias in the issuance of the
NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid contract that has caused
material injury to government and for participating in the scheme to preclude audit by COA of the funds infused by the
government for the implementation of the said contracts all in violation of the anti-graft law.[5]
Later, on November 5, 1999, the Saguisag Committee issued its own report. It recommended the further investigation by
the Ombudsman, and indictment, in proper cases of, among others, NCC Chair Salvador H. Laurel for violations of Section
3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred to the Fact-finding and
Intelligence Bureau of the Office of the Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report,
recommending:
1. that a formal complaint be filed and preliminary investigation be conducted before the Evaluation and Preliminary
Investigation Bureau (EPIB), Office of the Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former
EXPOCORP President Teodoro Q. Pea and AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No.
3019, as amended in relation to PD 1594 and COA Rules and Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal complainant.[6]
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation and Preliminary Investigation Bureau,
directed petitioner to submit his counter-affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to Dismiss questioning the jurisdiction of
said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but the motion was denied in an Order
dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued a resolution finding probable cause to
indict respondents SALVADOR H. LAUREL and TEODORO Q. PEA before the Sandiganbayan for conspiring to violate Section
3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594. The resolution also directed that an information for
violation of the said law be filed against Laurel and Pea. Ombudsman Aniano A. Desierto approved the resolution with
respect to Laurel but dismissed the charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a temporary restraining order, commanding respondents to
desist from filing any information before the Sandiganbayan or any court against petitioner for alleged violation of Section
3(e) of the Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH UNDERTOOK THE FREEDOM RING PROJECT IN
CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED,
WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A PUBLIC OFFICER AS DEFINED UNDER THE
ANTI-GRAFT & CORRUPT PRACTICES ACT.[7]
In addition, petitioner in his reply[8] invokes this Courts decision in Uy vs. Sandiganbayan,[9] where it was held that the
jurisdiction of the Ombudsman was limited to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade
27 and higher. As petitioners position was purportedly not classified as Grade 27 or higher, the Sandiganbayan and,
consequently, the Ombudsman, would have no jurisdiction over him.
This last contention is easily dismissed. In the Courts decision in Uy, we held that it is the prosecutor, not the Ombudsman,
who has the authority to file the corresponding information/s against petitioner in the regional trial court. The
Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan.
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority of the State and regular provincial and city
prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of
the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within
the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 (An Act Providing for the Functional and Structural
Organization of the Office of the Ombudsman, and for other purposes) which vests upon the
Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan And this is further buttressed by Section 11
(4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to conduct preliminary
investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. Thus, repeated references to the
Sandiganbayans jurisdiction clearly serve to limit the Ombudsmans and Special Prosecutors authority to cases cognizable
by the Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the Ombudsman in the same case,
the Court set aside the foregoing pronouncement in its Resolution dated March 20, 2001. The Court explained the
rationale for this reversal:
The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any
act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by
regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace
any crime committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the
Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special
Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the
Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law
defines such primary jurisdiction as authorizing the Ombudsman to take over, at any stage, from any investigatory agency
of the government, the investigation of such cases. The grant of this authority does not necessarily imply the exclusion
from its jurisdiction of cases involving public officers and employees by other courts. The exercise by the Ombudsman of
his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to
investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that
the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance,
misfeasance and non-feasance committed by public officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special
Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to
conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the
Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the
Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and
employees of the government and to enforce their administrative, civil and criminal liability in every case where the
evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any
fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the
investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision
and control. The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayans
jurisdiction in accordance with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is one of the most important functions of the
Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a
more active and effective agent of the people in ensuring accountability in public office. A review of the development of
our Ombudsman law reveals this intent. [Emphasis in the original.]
Having disposed of this contention, we proceed to the principal grounds upon which petitioner relies. We first address the
argument that petitioner, as Chair of the NCC, was not a public officer.
The Constitution[10] describes the Ombudsman and his Deputies as protectors of the people, who shall act promptly on
complaints filed in any form or manner against public officialsor employees of the government, or any subdivision, agency
or instrumentality thereof, including government-owned or controlled corporations. Among the awesome powers,
functions, and duties vested by the Constitution[11] upon the Office of the Ombudsman is to [i]nvestigate any act or
omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770, otherwise known as the
Ombudsman Act of 1989. Sections 13 and 15(1) of said law respectively provide:
SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people shall act promptly on complaints file in
any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal
liability in every case where the evidence warrants in order to promote efficient service by the Government to the people.
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and
duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or
employee, office or agency, when such act or omission appears to be illegal unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over,
at any stage, from any investigatory agency of Government, the investigation of such cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in relation to Section 13, supra:
SEC 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance, misfeasance and non-feasance that
have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance by a public officer
or employee of the government, or of any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations.[12]
Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are. A definition of public
officers cited in jurisprudence[13] is that provided by Mechem, a recognized authority on the subject:
A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by
law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public
officer.[14]
The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by
law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position
as an office.[15]
Petitioner submits that some of these characteristics are not present in the position of NCC Chair, namely: (1) the
delegation of sovereign functions; (2) salary, since he purportedly did not receive any compensation; and (3) continuance,
the tenure of the NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign functions of government as [t]he most
important characteristic in determining whether a position is a public office or not.
The most important characteristic which distinguishes an office from an employment or contract is that the creation and
conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be
exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative,
executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are
of this nature, the individual is not a public officer.[16]
Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law did not delegate
upon the NCC functions that can be described as legislative or judicial. May the functions of the NCC then be described as
executive?
We hold that the NCC performs executive functions. The executive power is generally defined as the power to enforce
and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due
observance.[17] The executive function, therefore, concerns the implementation of the policies as set forth by law.
The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and Sports) thereof:
Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the
nations historical and cultural heritage and resources, as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the National Centennial
Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the centennial presents an important
vehicle for fostering nationhood and a strong sense of Filipino identity;
Whereas, the centennial can effectively showcase Filipino heritage and thereby strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may be insured only through long-range planning and continuous
developmental programming;
Whereas, the active participation of the private sector in all areas of special expertise and capability, particularly in
communication and information dissemination, is necessary for long-range planning and continuous developmental
programming;
Whereas, there is a need to create a body which shall initiate and undertake the primary task of harnessing the
multisectoral components from the business, cultural, and business sectors to serve as effective instruments from the
launching and overseeing of this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998, cited the need to strengthen
the said Committee to ensure a more coordinated and synchronized celebrations of the Philippine Centennial and wider
participation from the government and non-government or private organizations. It also referred to the need to rationalize
the relevance of historical links with other countries.
The NCC was precisely created to execute the foregoing policies and objectives, to carry them into effect. Thus, the
Commission was vested with the following functions:
(a) To undertake the overall study, conceptualization, formulation and implementation of programs and projects on the
utilization of culture, arts, literature and media as vehicles for history, economic endeavors, and reinvigorating the spirit
of national unity and sense of accomplishment in every Filipino in the context of the Centennial Celebrations. In this
regard, it shall include a Philippine National Exposition 98 within Metro Manila, the original eight provinces, and Clark Air
Base as its major venues;
(b) To act as principal coordinator for all the activities related to awareness and celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination of all information about the plans and events for
the Centennial Celebrations;
(d) To constitute working groups which shall undertake the implementation of the programs and projects;
(e) To prioritize the refurbishment of historical sites and structures nationwide. In this regard, the Commission shall
formulate schemes (e.g. lease-maintained-and-transfer, build-operate-transfer, and similar arrangements) to ensure the
preservation and maintenance of the historical sites and structures;
(f) To call upon any government agency or instrumentality and corporation, and to invite private individuals and
organizations to assist it in the performance of its tasks; and,
(g) Submit regular reports to the President on the plans, programs, projects, activities as well as the status of the
preparations for the Celebration.[18]
It bears noting the President, upon whom the executive power is vested,[19] created the NCC by executive order. Book III
(Office of the President), Chapter 2 (Ordinance Power), Section 2 describes the nature of executive orders:
SEC. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character in implementation
or execution of constitutional or statutory powers shall be promulgated in executive orders. [Underscoring ours.]
Furthermore, the NCC was not without a role in the countrys economic development, especially in Central
Luzon. Petitioner himself admitted as much in the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, dont you agree that the task of the centennial commission
was also to focus on the long term over all socio economic development of the zone and Central Luzon by attracting
investors in the area because of the eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I wanted to touch on by lack of material time I could not
but that is a very important point. When I was made Chairman I wanted the Expo to be in Batangas because I am
a Batangeo but President Ramos said Mr. Vice President the Central Luzon is suffering, suffering because of the eruption
of Mt. Pinatubo let us try to catalize [sic] economic recovery in that area by putting this Expo in Clark Field and so it was
done I agreed and Your Honor if I may also mention we wanted to generate employment aside from attracting business
investments and employment. And the Estrada administration decided to junk this project there 48, 40 thousand people
who lost job, they were employed in Expo.And our target was to provide 75 thousand jobs. It would have really calibrated,
accelerated the development of Central Luzon. Now, I think they are going back to that because they had the airport and
there are plan to revive the Expo site into key park which was the original plan.
There can hardly be any dispute that the promotion of industrialization and full employment is a fundamental state
policy.[20]
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla[21] that the holding by a municipality of a town fiesta is a
proprietary rather than a governmental function. Petitioner argues that the holding of a nationwide celebration which
marked the nations 100th birthday may be likened to a national fiesta which involved only the exercise of the national
governments proprietary function.[22] In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code] simply gives authority to the
municipality to [celebrate] a yearly fiesta but it does not impose upon it a duty to observe one. Holding a fiesta even if the
purpose is to commemorate a religious or historical event of the town is in essence an act for the special benefit of the
community and not for the general welfare of the public performed in pursuance of a policy of the state. The mere fact
that the celebration, as claimed, was not to secure profit or gain but merely to provide entertainment to the town
inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for the town,
nonetheless it is [a] private undertaking as distinguished from the maintenance of public schools, jails, and the like which
are for public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an undertaking or
function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. The
basic element, however beneficial to the public the undertaking may be, is that it is government in essence, otherwise,
the function becomes private or propriety in character. Easily, no governmental or public policy of the state is involved in
the celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing doctrine. Note that the Court cautioned that there can be
no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be considered and will be decisive. Thus, in footnote 15 of Torio, the
Court, citing an American case, illustrated how the surrounding circumstances plus the political, social, and cultural
backgrounds could produce a conclusion different from that in Torio:
We came across an interesting case which shows that surrounding circumstances plus the political, social, and cultural
backgrounds may have a decisive bearing on this question. The case of Pope v. City of New Haven, et al. was an action to
recover damages for personal injuries caused during a Fourth of July fireworks display resulting in the death of a bystander
alleged to have been caused by defendants negligence. The defendants demurred to the complaint invoking the defense
that the city was engaged in the performance of a public governmental duty from which it received no pecuniary benefit
and for negligence in the performance of which no statutory liability is imposed. This demurrer was sustained by the
Superior Court of New Haven Country. Plaintiff sought to amend his complaint to allege that the celebration was for the
corporate advantage of the city. This was denied. In affirming the order, the Supreme Court of Errors of Connecticut
held inter alia:
Municipal corporations are exempt from liability for the negligent performance of purely public governmental duties,
unless made liable by statute.
A municipality corporation, which under permissive authority of its charter or of statute, conducted a public Fourth of July
celebration, including a display of fireworks, and sent up a bomb intended to explode in the air, but which failed to explode
until it reached the ground, and then killed a spectator, was engaged in the performance of a governmental duty. (99 A.R.
51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this] excerpt:
July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called Independence Day, by our statutes. All
or nearly all of the other states have similar statutes. While there is no United States statute making a similar provision,
the different departments of the government recognize, and have recognized since the government was established, July
4th as a national holiday. Throughout the country it has been recognized and celebrated as such. These celebrations,
calculated to entertain and instruct the people generally and to arouse and stimulate patriotic sentiments and love of
country, frequently take the form of literary exercises consisting of patriotic speeches and the reading of the Constitution,
accompanied by a musical program including patriotic air sometimes preceded by the firing of cannon and followed by
fireworks. That such celebrations are of advantage to the general public and their promotion a proper subject of legislation
can hardly be questioned. x x x
Surely, a town fiesta cannot compare to the National Centennial Celebrations. The Centennial Celebrations was meant to
commemorate the birth of our nation after centuries of struggle against our former colonial master, to memorialize the
liberation of our people from oppression by a foreign power. 1998 marked 100 years of independence and sovereignty as
one united nation. The Celebrations was an occasion to reflect upon our history and reinvigorate our patriotism. As A.O.
223 put it, it was a vehicle for fostering nationhood and a strong sense of Filipino identity, an opportunity to showcase
Filipino heritage and thereby strengthen Filipino values. The significance of the Celebrations could not have been lost on
petitioner, who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle the love for freedom, love for
country, that is the over-all goal that has to make everybody feel proud that he is a Filipino, proud of our history, proud
of what our forefather did in their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual
but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident
and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office,
and is supposed to be accepted merely for the public good.[23] Hence, the office of petitioner as NCC Chair may be
characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary,
compensation or fees are attached.[24] But it is a public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad-hoc body make said commission less of a public
office.
The term office, it is said, embraces the idea of tenure and duration, and certainly a position which is merely temporary
and local cannot ordinarily be considered an office. But, says Chief Justice Marshall, if a duty be a continuing one, which
is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to
perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue
though the person be changed, -- it seems very difficult to distinguish such a charge or employment from an office of the
person who performs the duties from an officer.
At the same time, however, this element of continuance can not be considered as indispensable, for, if the other
elements are present it can make no difference, says Pearson, C.J., whether there be but one act or a series of acts to
be done, -- whether the office expires as soon as the one act is done, or is to be held for years or during good behavior. [25]
Our conclusion that petitioner is a public officer finds support in In Re Corliss.[26] There the Supreme Court of Rhode Island
ruled that the office of Commissioner of the United States Centennial Commission is an office of trust as to disqualify its
holder as elector of the United States President and Vice-President. (Under Article II of the United States Constitution, a
person holding an office of trust or profit under the United States is disqualified from being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial Commission holds an office of trust under the United
States, and that he is therefore disqualified for the office of elector of President and Vice-President of the United States.
The commission was created under a statute of the United States approved March 3, 1871. That statute provides for the
holding of an exhibition of American and foreign arts, products, and manufactures, under the auspices of the government
of the United States, and for the constitution of a commission, to consist of more than one delegate from each State and
from each Territory of the United States, whose functions shall continue until close of the exhibition, and whose duty it
shall be to prepare and superintend the execution of the plan for holding the exhibition. Under the statute the
commissioners are appointed by the President of the United States, on the nomination of the governor of the States and
Territories respectively. Various duties were imposed upon the commission, and under the statute provision was to be
made for it to have exclusive control of the exhibit before the President should announce, by proclamation, the date and
place of opening and holding the exhibition. By an act of Congress approved June 1st, 1872, the duties and functions of
the commission were further increased and defined. That act created a corporation, called The Centennial Board of
Finance, to cooperate with the commission and to raise and disburse the funds. It was to be organized under the direction
of the commission. The seventh section of the act provides that the grounds for exhibition shall be prepared and the
buildings erected by the corporation, in accordance with plans which shall have been adopted by the United States
Centennial Commission; and the rules and regulations of said corporation, governing rates for entrance and admission
fees, or otherwise affecting the rights, privileges, or interests of the exhibitors, or of the public, shall be fixed and
established by the United States Centennial Commission; and no grant conferring rights or privileges of any description
connected with said grounds or buildings, or relating to said exhibition or celebration, shall be made without the consent
of the United States Centennial Commission, and said commission shall have power to control, change, or revoke all such
grants, and shall appoint all judges and examiners and award all premiums. The tenth section of the act provides that it
shall be the duty of the United States Centennial Commission to supervise the closing up of the affairs of said corporation,
to audit its accounts, and submit in a report to the President of the United States the financial results of the centennial
exhibition.
It is apparent from this statement, which is but partial, that the duties and functions of the commission were various,
delicate, and important; that they could be successfully performed only by men of large experience and knowledge of
affairs; and that they were not merely subordinate and provisional, but in the highest degree authoritative, discretionary,
and final in their character. We think that persons performing such duties and exercising such functions, in pursuance of
statutory direction and authority, are not to be regarded as mere employees, agents, or committee men, but that they
are, properly speaking, officers, and that the places which they hold are offices. It appears, moreover, that they were
originally regarded as officers by Congress; for the act under which they were appointed declares, section 7, that no
compensation for services shall be paid to the commissioners or other officers, provided for in this act, from the treasury
of the United States. The only other officers provided for were the alternates appointed to serve as commissioners when
the commissioners were unable to attend.
Having arrived at the conclusion that the NCC performs executive functions and is, therefore, a public office, we need no
longer delve at length on the issue of whether Expocorp is a private or a public corporation. Even assuming that Expocorp
is a private corporation, petitioners position as Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of
the NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers and functions
as NCC Chair.[27]
Finally, it is contended that since petitioner supposedly did not receive any compensation for his services as NCC or
Expocorp Chair, he is not a public officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act)
and is, therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which reads:
SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing
law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other concessions.
A public officer, under R.A. No. 3019, is defined by Section 2 of said law as follows:
SEC. 2. Definition of terms. As used in this Act, the term
xxx
(b) Public officer includes elective and appointive officials and employees, permanent or temporary, whether in the
classified or unclassified or exemption service receiving compensation, even nominal, from the government as defined
in the preceding paragraph. [Emphasis supplied.]
It is clear from Section 2 (b), above, that the definition of a public officer is expressly limited to the application of R.A. No.
3019. Said definition does not apply for purposes of determining the Ombudsmans jurisdiction, as defined by the
Constitution and the Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the Anti-Graft and Corrupt Practices Act involves
the appreciation of evidence and interpretation of law, matters that are best resolved at trial.
To illustrate, the use of the term includes in Section 2 (b) indicates that the definition is not restrictive. [28] The Anti-Graft
and Corrupt Practices Act is just one of several laws that define public officers. Article 203 of the Revised Penal Code, for
example, provides that a public officer is:
x x x any person who, by direct provision of law, popular election or appointment by competent authority, takes part in
the performance of public functions in the Government of Philippines, or performs in said Government or in any of its
branches public duties as an employee, agent or subordinate official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,[29] on the other hand, states:
Officer as distinguished from clerk or employee, refers to a person whose duties not being of a clerical or manual nature,
involves the exercise of discretion in the performance of the functions of the government. When used with reference to
a person having authority to do a particular act or perform a particular person in the exercise of governmental power,
officer includes any government employee, agent or body having authority to do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards for Public
Officials and Employees), one may be considered a public official whether or not one receives compensation, thus:
Public Officials include elective and appointive officials and employees, permanent or temporary, whether in the career
or non-career service including military and police personnel, whether or not they receive compensation, regardless of
amount.
Which of these definitions should apply, if at all?
Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term compensation, which is not defined
by said law, has many meanings.
Under particular circumstances, compensation has been held to include allowance for personal expenses, commissions,
expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution or a balancing of
accounts, salary, and wages.[30]
How then is compensation, as the term is used in Section 2 (b) of R.A. No. 3019, to be interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not receive any salary, the
records do not reveal if he received any allowance, fee, honorarium, or some other form of compensation. Notably, under
the by-laws of Expocorp, the CEO is entitled to per diems and compensation.[31] Would such fact bear any significance?
Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the trial court from resolving
them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Courts Resolution dated September 24,
2001 is hereby LIFTED.
SO ORDERED.
Puno, and Ynares-Santiago, JJ., concur.
Davide, Jr., C.J., (Chairman), no part due to close relation to a party.

[1]
A.O. 223, Section 1. The same section provided for the Committees composition as follows:
x x x. The Committee shall be composed of six (6) representatives from the Presidential Commission for Culture and the
Arts (PCCA), and five (5) representatives from the Philippine Centennial Foundation, Inc. (PCFI). They shall be appointed
by the President upon their nomination by their respective groups.
The Committee members shall elect among themselves the Chairman and Vice-Chairman, and such other officers as they
may deem necessary.
The Committee was also granted the following duties and powers:
1. To undertake the overall study, formulation and implementation of programs and projects on the utilization of culture,
arts, and media as vehicles for value education in the context of the Centennial Celebration;
2. To act as principal coordinator for all the activities related to awareness and celebration of the centennial;
3. To constitute sub-committees and working groups which shall undertake the implementation of the program and
projects; and
4. To call upon the assistance of any government agency or instrumentality and corporation, and to invite private
individuals and organizations to assist it in the performance of its tasks. (Id., at Section 2.)
[2]
Other members of the Commission were the Secretaries of Education, Culture and Sports, National Defense, Interior
and Local Government, Tourism, Trade and Industry, Public Works and Highways, Transportation and Communications,
and Budget and Management, the Press Secretary, two (2) representatives each from the Senate and the House of
Representatives, two (2) representatives from the Judiciary, the Executive Director of the National Historical Institute,
three (3) representatives from the National Commission for Culture and Arts, three (3) representatives from the Philippine
Centennial Foundation, Inc., and other members from the government and the private sectors, as may be designated
later. (E.O. No. 128, Section 1.)
[3]
Id., at Section 5.
[4]
The purposes of the corporation were set forth in Article 2 of the Articles of Incorporation, thus:
PRIMARY PURPOSE
To set up and establish the Philippine Centennial International Exposition 1998 (EXPO 98), a project of the National
Centennial Commission envisioned and mandated under Executive Order No. 128, series of 1993, in the Clark Special
Economic Zone (CSEZ) within the Provinces of Pampanga and Tarlac, Philippines as created, defined and delineated under
Proclamation No. 163, series 1993, of the President of the Philippines and furtherance of said purpose;
1. To operate, administer, manage, implement, and develop EXPO 98 conformably to and in accordance with the Detailed
Feasibility study and Master Plan for said Exposition prepared by DOUGLAS/GALLAGHER, INC. and approved by the
President of the Philippines;
2. To exercise oversight functions and overall jurisdiction over the operations of EXPO 98 as well as manage and oversee
all plans, programs, and activities related to the implementation and operation of said Exposition;
3. To regulate the establishment, operation, and maintenance of utilities, services, and infrastructure works in all the site
components of EXPO 98 and its support facilities;
4. To oversee the preparations for the implementation of the participation of countries, groups, organizations, and entities
at EXPO 98;
5. To establish linkages with participating countries and coordinate their programs and activities relevant to the theme of
EXPO 98;
6. To provide and prescribe the guidelines for the design and fabrication of the pavilions of participating countries that
played a significant role in Philippine historical development and of other participating groups, organizations, and entities
which would be reflective of the following objectives of EXPO 98 --
a) showcase the national vision of the Philippines, highlighted by a rich history and culture, and its traditional heritage and
diverse cultural influences;
b) express eloquently the Filipinism sentiment of the Philippine Centennial;
c) strengthen cultural and historical linkages between Philippines and participating countries;
d) create an image of the Philippines as a country with rich trade and tourism potentials; and
e) project the Filipino character and strengthen the sense of national pride and patriotism among the Filipino people.
7. To conceive and devise varied promotional strategies towards creating awareness and appreciation of EXPO 98 as the
centerpiece of the national celebrations in 1998 of the centennial of the declaration of Philippine Independence and
beyond that as a permanent site for the Filipino people to honor their rich heritage;
8. To encourage and invite the active and meaningful participation of the private sector in managing and overseeing EXPO
98; and
9. To forge strategic partnerships and joint ventures with local and international investors and developers in the
development, maintenance, operation, and management of EXPO 98 on a turn-key basis.
SECONDARY PURPOSES
(1) To purchase, acquire, own, lease, sell and convey real properties such as lands, buildings, factories and warehouses
and machineries, equipment and other personal properties as may be necessary or incidental to the conduct of the
corporate business, and to pay in cash, shares of its capital stock, debentures and other evidences of indebtedness, or
other securities, as may be deemed expedient, for any business or property acquired by the corporation.
(2) To borrow or raise money necessary to meet the financial requirements of its business by the issuance of bonds,
promissory notes and other evidences of indebtedness, and to secure the repayment thereof by mortgage, pledge, deed
of trust or lien upon the properties of the corporation or to issue pursuant to law shares of its capital stock, debentures
and other evidences of indebtedness in payment for properties acquired by the corporation or for money borrowed in the
prosecution of its lawful business;
(3) To invest and deal with the money and properties of the corporation in such manner as may from time to time be
considered wise or expedient for the advancement of its interests and to sell, dispose of or transfer the business,
properties and goodwill of the corporation or any part thereof for such consideration and under such terms as it shall see
fit to accept;
(4) To aid in any manner any corporation, association, or trust estate, domestic or foreign, or any firm or individual, any
shares of stock in which or any bonds, debentures, notes, securities, evidences of indebtedness, contracts, or obligations
of which are held by or for this corporation, directly or indirectly or through other corporations or otherwise;
(5) To enter into any lawful arrangement for sharing profits, union of interest, unitization or farmout agreement, reciprocal
concession, or cooperation, with any corporation, association, partnership, syndicate, entity, person or governmental,
municipal or public authority, domestic or foreign, in the carrying on of any business or transaction deemed necessary,
convenient or incidental to carrying out any of the purposes of this corporation;
(6) To acquire or obtain from any government or authority, national, provincial, municipal or otherwise, or a corporation,
company or partnership or person, such charter, contracts, franchise, privileges, exemption, licenses and concessions as
may be conducive to any of the objects of the corporation;
(7) To establish and operate one or more branch offices of agencies and to carry on any or all of its operations and business
without any restrictions as to place or amount including the right to hold, purchase or otherwise acquire, lease, mortgage,
pledge and convey or otherwise deal in with real and personal property anywhere within the Philippines;
(8) To conduct and transact any and all lawful business, and to do or cause to be done any one or more of the acts and
things herein set forth as its purposes, within or without the Philippines, and in any and all foreign countries, and to do
everything necessary, desirable or incidental to the accomplishment of the purposes or the exercise of any one or more
of the powers herein enumerated, or which shall at any time appear conducive to or expedient for the protection or
benefit of this corporation.

G.R. No. 116418 March 7, 1995

SALVADOR C. FERNANDEZ and ANICIA M. DE LIMA, petitioners,
vs.
HON. PATRICIA A. STO. TOMAS, Chairman, and HON. RAMON B. ERENETA, Commissioner, Civil Service
Commission, respondents.

FELICIANO, J.:
In this Petition for Certiorari, Prohibition and Mandamus with Prayer for a Temporary Restraining Order, petitioners
Salvador C. Fernandez and Anicia M. de Lima assail the validity of Resolution No. 94-3710 of the Civil Service Commission
("Commission") and the authority of the Commission to issue the same.
Petitioner Fernandez was serving as Director of the Office of Personnel Inspection and Audit ("OPIA") while petitioner de
Lima was serving as Director of the Office of the Personnel Relations ("OPR"), both at the Central Office of the Civil Service
Commission in Quezon City, Metropolitan Manila. While petitioners were so serving, Resolution No. 94-3710 signed by
public respondents Patricia A.. Sto. Tomas and Ramon Ereneta, Jr., Chairman and Commissioner, respectively, of the
Commission, was issued on 7 June 1994.1 Resolution No. 94-3710 needs to be quoted in full:
RESOLUTION NO. 94-3710
WHEREAS, Section 17 of Book V of Executive Order 292 provides that ". . . as an independent constitutional body, the
Commission may effect changes in the organization as the need arises;"
WHEREAS, the Commission finds it imperative to effect changes in the organization to streamline its operations and
improve delivery of public service;
WHEREAS, the Commission finds it necessary to immediately effect changes in the organization of the Central Offices in
view of the need to implement new programs in lieu of those functions which were transferred to the Regional Offices;
WHEREFORE, foregoing premises considered, the Commission hereby RESOLVES to effect the following changes in its
organization, specifically in the Central Offices:
1. The OCSS [Office of Career Systems and Standards], OPIA [Office of Personnel Inspection and Audit] and OPR [Office of
Personnel Relations] are merged to form the Research and Development Office (RDO).
2. The Office for Human Resource Development (OHRD) is renamed Human Resource Development Office (HRDO).
3. The following functions and the personnel assigned to the unit performing said functions are hereby transferred to
HRDO:
a. Administration of the Honor and Awards program under OCSS;
b. Registration and Accreditation of Unions under OPR; and
c. Accreditation of Agencies to take final action on appointments under OPIA.
4. The Office for Central Personnel Records (OCPR) is renamed Management Information Office (MIO).
5. The Information technology functions of OPM and the personnel assigned to the unit are transferred to MIO.
6. The following functions of OPM and the personnel assigned to the unit performing said functions are hereby transferred
to the Office of the Executive Director:
a. Financial Audit and Evaluation;
b. Internal Management and Improvement;
c. Research and Statistics; and
d. Planning and Programming.
7. The library service and its personnel under OCPR are transferred to the Central Administrative Office.
8. The budget allocated for the various functions shall be transferred to the Offices where the functions are transferred.
Records, fixtures and equipment that go with the functions shall be moved to where the functions are transferred.
Annex A contains the manning list for all the offices, except the OCES.
The changes in the organization and in operations shall take place before end of July 1994.
Done in Quezon City, July 07, 1994.
(Signed)
Patricia A. Sto. Tomas
Chairman
(Signed) Did not participate
Ramon P. Ereneta, Jr., Thelma P. Gaminde
Commissioner Commissioner
Attested by:
(Signed)
Carmencita Giselle B. Dayson
2
Board Secretary V
During the general assembly of officers and employees of the Commission held in the morning of 28 July 1994, Chairman
Sto. Tomas, when apprised of objections of petitioners, expressed the determination of the Commission to implement
Resolution No. 94-3710 unless restrained by higher authority.
Petitioners then instituted this Petition. In a Resolution dated 23 August 1994, the Court required public respondents to
file a Comment on the Petition. On 21 September 1994, petitioners filed an Urgent Motion for Issuance of a Temporary
Restraining Order, alleging that petitioners had received Office Orders from the Commission assigning petitioner
Fernandez to Region V at Legaspi City and petitioner de Lima to Region III in San Fernando, Pampanga and praying that
public respondents be restrained from enforcing these Office Orders. The Court, in a Resolution dated 27 September 1994,
granted this Motion and issued the Temporary Restraining Order prayed for by petitioners.
The Commission filed its own Comment, dated 12 September 1994, on the Petition and then moved to lift the Temporary
Restraining Order. The Office of the Solicitor General filed a separate Comment dated 28 November 1994, defending the
validity of Resolution No. 94-3710 and urging dismissal of the Petition. Petitioners filed separate Replies to these
Comments. The Commission in turn filed a Rejoinder (denominated "Comment [on] the Reply").
The principal issues raised in this Petition are the following:
(1) Whether or not the Civil Service Commission had legal authority to issue Resolution No. 94-3710 to the extent it merged
the OCSS [Office of Career Systems and Standards], the OPIA [Office of Personnel Inspection and Audit] and the OPR [Office
of Personnel Relations], to form the RDO [Research and Development Office]; and
(2) Whether or not Resolution No. 94-3710 violated petitioners' constitutional right to security of tenure.
I.
The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 July 1987) sets out, in Book V, Title I, Subtitle
A, Chapter 3, the internal structure and organization of the Commission in the following terms:
Sec. 16. Offices in the Commission — The Commission shall have the following offices:
(1) The Office of the Executive Director — . . .
(2) The Merit System Protection Board — . . .
(3) The Office of Legal Affairs — . . .
(4) The Office of Planning and Management — . . .
(5) The Central Administrative Office — . . .
(6) The Office of Central Personnel Records — . . .
(7) The Office of Position Classification and
Compensation — . . .
(8) The Office of Recruitment, Examination and
Placement — . . .
(9) The Office of Career Systems and Standards shall provide leadership and assistance in the formulation and evaluation
of personnel systems and standards relative to performance appraisal, merit promotion and employee incentive benefits
and awards.
(10) The Office of Human Resource Development — . . .
(11) The Office of Personnel Inspection and Audit shall develop policies, standards, rules and regulations for the effective
conduct of inspection and audit of personnel and personnel management programs and the exercise of delegated
authority; provide technical and advisory services to Civil Service Regional Offices and government agencies in the
implementation of their personnel programs and evaluation systems.
(12) The Office of Personnel Relations shall provide leadership and assistance in the development and implementation of
policies, standards, rules and regulations governing corporate officials and employees in the areas of recruitment,
examination, placement, career development, merit and awards systems, position classification and compensation,
performance appraisal, employee welfare and benefits, discipline and other aspects of personnel management on the
basis of comparable industry practices.
(13) The Office of the Corporate Affairs — . . .
(14) The Office of Retirement Administration — . . .
(15) The Regional and Field Offices. — . . . (Emphases in the original)
Immediately after the foregoing listing of offices of the Commission and their respective functions, the 1987 Revised
Administrative Code goes on to provide as follows:
Sec. 17. Organizational Structure. — Each office of the Commission shall be headed by a Director with at least one (1)
Assistant Director, and may have such divisions as are necessary to carry out their respective functions. As an independent
constitutional body, the Commission may effect chances in the organization as the need arises.
xxx xxx xxx 3
(Emphasis supplied)
Examination of the foregoing statutory provisions reveals that the OCSS, OPIA and OPR, and as well each of the other
Offices listed in Section 16 above, consist of aggregations of Divisions, each of which Divisions is in turn a grouping of
Sections. Each Section, Division and Office comprises a group of positions within the agency called the Civil Service
Commission, each group being entrusted with a more or less definable function or functions. These functions are related
to one another, each of them being embraced by a common or general subject matter. Clearly, each Office is an internal
department or organizational unit within the Commission and that accordingly, the OCSS, OPIA and OPR, as well as all the
other Offices within the Commission constitute administrative subdivisions of the CSC. Put a little differently, these offices
relate to the internal structure of the Commission.
What did Resolution No. 94-3710 of the Commission do? Examination of Resolution No. 94-3710 shows that thereby the
Commission re-arranged some of the administrative units (i.e., Offices) within the Commission and, among other things,
merged three (3) of them (OCSS, OPIA and OPR) to form a new grouping called the "Research and Development Office
(RDO)." The same Resolution renamed some of the Offices of the Commission, e.g., the Office for Human Resource
Development (OHRD) was renamed Human Resource Development Office (HRDO); the Office for Central Personnel
Records (OCPR) was renamed Management Information Office (MIO). The Commission also re-allocated certain functions
moving some functions from one Office to another; e.g., the information technology function of OPM (Office of Planning
and Management) was transferred to the newly named Management Information Office (MIO). This re-allocation or re-
assignment of some functions carried with it the transfer of the budget earmarked for such function to the Office where
the function was transferred. Moreover, the personnel, records, fixtures and equipment that were devoted to the carrying
out of such functions were moved to the Offices to where the functions were transferred.
The objectives sought by the Commission in enacting Resolution No. 94-3710 were described in that Resolution in broad
terms as "effect[ing] changes in the organization to streamline [the Commission's] operations and improve delivery of
service." These changes in internal organization were rendered necessary by, on the one hand, the decentralization and
devolution of the Commission's functions effected by the creation of fourteen (14) Regional Offices and ninety-five (95)
Field Offices of the Commission throughout the country, to the end that the Commission and its staff may be brought
closer physically to the government employees that they are mandated to serve. In the past, its functions had been
centralized in the Head Office of the Commission in Metropolitan Manila and Civil Service employees all over the country
were compelled to come to Manila for the carrying out of personnel transactions. Upon the other hand, the dispersal of
the functions of the Commission to the Regional Offices and the Field Offices attached to various governmental agencies
throughout the country makes possible the implementation of new programs of the Commission at its Central Office in
Metropolitan Manila.
The Commission's Office Order assigning petitioner de Lima to the CSC Regional Office No. 3 was precipitated by the
incumbent Regional Director filing an application for retirement, thus generating a need to find a replacement for him.
Petitioner de Lima was being assigned to that Regional Office while the incumbent Regional Director was still there to
facilitate her take over of the duties and functions of the incumbent Director. Petitioner de Lima's prior experience as a
labor lawyer was also a factor in her assignment to Regional Office No. 3 where public sector unions have been very active.
Petitioner Fernandez's assignment to the CSC Regional Office No. 5 had, upon the other hand, been necessitated by the
fact that the then incumbent Director in Region V was under investigation and needed to be transferred immediately to
the Central Office. Petitioner Fernandez was deemed the most likely designee for Director of Regional Office No. 5
considering that the functions previously assigned to him had been substantially devolved to the Regional Offices such
that his reassignment to a Regional Office would result in the least disruption of the operations of the Central Office.4
It thus appears to the Court that the Commission was moved by quite legitimate considerations of administrative efficiency
and convenience in promulgating and implementing its Resolution No. 94-3710 and in assigning petitioner Salvador C.
Fernandez to the Regional Office of the Commission in Region V in Legaspi City and petitioner Anicia M. de Lima to the
Commission's Regional Office in Region III in San Fernando, Pampanga. It is also clear to
the Court that the changes introduced and formalized through Resolution No. 94-3710 — re-naming of existing Offices;
re-arrangement of the groupings of Divisions and Sections composing particular Offices; re-allocation of existing functions
(and related personnel; budget, etc.) among the re-arranged Offices — are precisely the kind of internal changes which
are referred to in Section 17 (Book V, Title I, Subtitle A, Chapter 3) of the 1987 Revised Administrative Code), quoted
above, as "chances in the organization" of the Commission.
Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public offices, something which may be done
only by the same legislative authority which had created those public offices in the first place.
The Court is unable, in the circumstances of this case, to accept this argument. The term "public office" is frequently used
to refer to the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or
enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of
government, to be exercised by that individual for the benefit of the public.5 We consider that Resolution No. 94-3710
has not abolished any public office as that term is used in the law of public officers.6 It is essential to note that none of the
"changes in organization" introduced by Resolution No. 94-3710 carried with it or necessarily involved the termination of
the relationship of public employment between the Commission and any of its officers and employees. We find it very
difficult to suppose that the 1987 Revised Administrative Code having mentioned fourteen (14) different "Offices" of the
Civil Service Commission, meant to freeze those Offices and to cast in concrete, as it were, the internal organization of the
commission until it might please Congress to change such internal organization regardless of the ever changing needs of
the Civil Service as a whole. To the contrary, the legislative authority had expressly authorized the Commission to carry
out "changes in the organization," as the need [for such changes] arises." 7 Assuming, for purposes of argument merely,
that legislative authority was necessary to carry out the kinds off changes contemplated in Resolution No. 94-3710 (and
the Court is not saying that such authority is necessary), such legislative authority was validly delegated to the Commission
by Section 17 earlier quoted. The legislative standards to be observed and respected in the exercise of such delegated
authority are set out not only in Section 17 itself (i.e., "as the need arises"), but also in the Declaration of Policies found in
Book V, Title I, Subtitle A, Section 1 of the 1987 Revised Administrative Code which required the Civil Service Commission
as the central personnel agency of the Government [to] establish a
career service, adopt measures to promote — efficiency — [and] responsiveness . . . in the civil service . . . and that
personnel functions shall be decentralized, delegating the corresponding authority to the departments, offices and
agencies where such functions can be effectively performed. (Emphasis supplied)
II.
We turn to the second claim of petitioners that their right to security of tenure was breached by the respondents in
promulgating Resolution No. 94-3710 and ordering petitioners' assignment to the Commission's Regional Offices in
Regions III and V. Section 2(3) of Article IX(B) of the 1987 Constitution declared that "no officer or employee of the Civil
Service shall be removed or suspended except for cause provided by law." Petitioners in effect contend that they were
unlawfully removed from their positions in the OPIA and OPR by the implementation of Resolution No. 94-3710 and that
they cannot, without their consent, be moved out to the Regional Offices of the Commission.
We note, firstly, that appointments to the staff of the Commission are not appointments to a specified public office but
rather appointments to particular positions or ranks. Thus, a person may be appointed to the position of Director III or
Director IV; or to the position of Attorney IV or Attorney V; or to the position of Records Officer I or Records Officer II; and
so forth. In the instant case, petitioners were each appointed to the position of Director IV, without specification of any
particular office or station. The same is true with respect to the other persons holding the same position or rank of Director
IV of the Commission.
Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code recognizes reassignment as a
management prerogative vested in the Commission and, for that matter, in any department or agency of government
embraced in the civil service:
Sec. 26. Personnel Actions. — . . .
xxx xxx xxx
As used in this Title, any action denoting the movement or progress of personnel in the civil service shall be known as
personnel action. Such action shall include appointment through certification, promotion, transfer, re-instatement, re-
employment, detail, reassignment, demotion, and separation. All personnel actions shall be in accordance with such rules,
standards, and regulations as may be promulgated by the Commission.
xxx xxx xxx
(7) Reassignment. An employee may be re-assigned from one organizational unit to another in the same agency, Provided,
That such re-assignment shall not involve a reduction in rank status and salary. (Emphasis supplied)
It follows that the reassignment of petitioners Fernandez and de Lima from their previous positions in OPIA and OPR,
respectively, to the Research and Development Office (RDO) in the Central Office of the Commission in Metropolitan
Manila and their subsequent assignment from the RDO to the Commission's Regional Offices in Regions V and III had been
effected with express statutory authority and did not constitute removals without lawful cause. It also follows that such
re-assignment did not involve any violation of the constitutional right of petitioners to security of tenure considering that
they retained their positions of Director IV and would continue to enjoy the same rank, status and salary at their new
assigned stations which they had enjoyed at the Head Office of the Commission in Metropolitan Manila. Petitioners had
not, in other words, acquired a vested right to serve at the Commission's Head Office.
Secondly, the above conclusion is compelled not only by the statutory provisions relevant in the instant case, but also by
a long line of cases decided by this Court in respect of different agencies or offices of government.
In one of the more recent of these cases, Department of Education Culture and Sports, etc., et al. v. Court of Appeals, et
al.,8 this Court held that a person who had been appointed as "Secondary School Principal II" in the Division of City Schools,
District II, Quezon City, National Capital Region, and who had been stationed as High School Principal in the Carlos Albert
High School in Quezon for a number of years, could lawfully be reassigned or transferred to the Manuel Roxas High School,
also in Quezon City, without demotion in rank or diminution of salry. This Court held:
The aforequoted provision of Republic Act No. 4670 particularly Section 6 thereof which provides that except for cause
and in the exigencies of the service no teacher shall be transferred without his consent from one station to another, finds
no application in the case at bar as this is predicated upon the theory that the teacher concerned is appointed — not
merely assigned — to a particular station. Thus:
The rule pursued by plaintiff only goes so far as
the appointed indicates a specification. Otherwise, the constitutionally ordained security of tenure cannot shield her. In
appointments of this nature, this Court has consistently rejected the officer's demand to remain — even as public service
dictates that a transfer be made — in a particular station. Judicial attitude toward transfers of this nature is expressed in
the following statement in Ibañez, et al. vs. Commission on Elections, et al. (G.R. No.
L-26558, April 27, 1967; 19 SCRA 1002 [1967]);
That security of tenure is an essential and constitutionally guaranteed feature of our Civil Service System, is not open to
debate. The mantle of its protection extends not only against removals without cause but also against unconsented
transfer which, as repeatedly enunciatEd, are tantamount to removals which are within the ambit of the fundamental
guarantee. However, the availability of that security of tenure necessarily depends, in the first instance, upon the nature
of the appointment (Hojilla vs. Marino, 121 Phil. 280 [1965].) Such that the rule which proscribes transfers without consent
as anathema to the security of tenure is predicated upon the theory that the officer involved is appointed — not
merely assigned — to a particular station(Miclat v. Ganaden, et al., 108 Phil. 439 [1960]; Jaro v. Hon. Valencia, et al., 118
Phil. 728 [1963]). [Brillantes v. Guevarra, 27 SCRA 138 (1969)]
The appointment of Navarro as principal does not refer to any particular station or school. As such, she could be assigned
to any station and she is not entitled to stay permanently at any specific school. (Bongbong v. Parado, 57 SCRA 623) When
she was assigned to the Carlos Albert High School, it could not have been with the intention to let her stay in said school
permanently. Otherwise, her appointment would have so stated. Consequently, she may be assigned to any station or
school in Quezon City as the exigencies of public service require even without consent. As this Court ruled in Brillantes
v. Guevarra, 27 SCRA 138,
143 —
Plaintiff's confident stride falters. She took too loose a view of the applicable jurisprudence. Her refuge behind the mantle
of security of tenure guaranteed by the Constitution is not impenetrable. She proceeds upon the assumption that she
occupies her station in Sinalang Elementary School by appointment. But her first appointment as Principal merely reads
thus: "You are hereby appointed a Principal (Elementary School) in the Bureau of Public Schools, Department of
Education", without mentioning her station. She cannot therefore claim security of tenure as Principal of Sinalang
Elementary School or any particular station. She may be assigned to any station as exigency of public service requires, even
without her consent. She thus has no right of choice.9 (Emphasis supplied; citation omitted)
In the very recent case of Fernando, et al. v. Hon. Sto. Tomas, etc., et
10
a1., the Court addressed appointments of petitioners as "Mediators-Arbiters in the National Capital Region" in
dismissing a challenge on certiorari to resolutions of the CSC and orders of the Secretary of Labor. The Court said:
Petitioners were appointed as Mediator Arbiters in the National Capital Region. They were not, however, appointed to a
specific station or particular unit of the Department of Labor in the National Capital Region (DOLE-NCR).
Consequently, they can always be reassigned from one organizational unit to another of the same agency where, in the
opinion of respondent Secretary, their services may be used more effectively. As such they can neither claim a vested right
to the station to which they were assigned nor to security of tenure thereat. As correctly observed by the Solicitor General,
petitioners' reassignment is not a transfer for they were not removed from their position as med-arbiters. They were not
given new appointments to new positions. It indubitably follows, therefore, that Memorandum Order No. 4 ordering their
reassignment in the interest of the service is legally in order.11 (Emphases supplied)
In Quisumbing v. Gumban, 12 the Court, dealing with an appointment in the Bureau of Public Schools of the Department
of Education, Culture and Sports, ruled as follows:
After a careful scrutiny of the records, it is to be underscored that the appointment of private respondent Yap is simply
that of a District Supervisor of the Bureau of Public Schools which does not indicate a specific station (Rollo, p. 13). A
such, she could be assigned to any station and she is no entitled to stay permanently at any specific station (Bongbong v.
Parado, 57 SCRA 623 [1974]; Department of Education, Culture and Sports v. Court of Appeals [G.R. 81032, March 22,
1990] citing Brillantes v. Guevarra [27 SCRA 138 [1969]). 13
Again, in Ibañez v. Commission on Elections, 14 the Court had before it petitioners' appointments as "Election Registrars in
the Commission of Elections," without any intimation to what city, municipality or municipal district they had been
appointed as such. 15 The Court held that since petitioners "were not appointed to, and consequently not entitled to any
security of tenure or permanence in, any specific station," "on general principles, they [could] be transferred as the
exigencies of the service required," and that they had no right to complain against any change in assignment. The Court
further held that assignment to a particular station after issuance of the appointment was not necessary to complete such
appointment:
. . . . We cannot subscribe to the theory that an assignment to a particular station, in the light of the terms of the
appointments in question, was necessary to complete the said appointments. The approval thereof by the Commissioner
of Civil Service gave those appointments the stamp of finality.With the view that the respondent Commission then took of
its power in the premises and the demand of the mission it set out to accomplish with the appointments it extended, said
appointments were definitely meant to be complete as then issued. The subsequent assignment of the appointees
thereunder that the said respondent Commission held in reserve to be exercised as the needs of each locality justified did
not in any way detract from the perfection attained by the appointments beforehand. And the respective appointees were
entitled only to such security of tenure as the appointment papers concerned actually conferred — not in that of any place
to which they may have been subsequently assigned. . . . As things stand, in default of any particular station stated in their
respective appointments, no security of tenure can be asserted by the petitioners on the basis of the mere assignments
which were given to them. A contrary rule will erase altogether the demarcation line we have repeatedly drawn
between appointment and assignment as two distinct concepts in the law of public officers. 16 (Emphases supplied)
The petitioner, in Miclat v. Ganaden, 17 had been appointed as a "Welfare Office Incharge, Division of Urban, Rural and
Community Administration, Social Welfare Administration." She was assigned as Social Welfare Incharge of the Mountain
Province, by an office order of the Administrator, Social Welfare Administration. After a little more than a year; petitioner
was assigned elsewhere and respondent Ganaden transferred to petitioner's first station in Baguio City. The Court ruled
that petitioner was not entitled to remain in her first station, In Jaro v. Hon. Valencia, et al., 18petitioner Dr. Jaro had been
appointed "Physician in the Municipal Maternity and Charity Clinics, Bureau of Hospitals." He was first assigned to the
Municipal Maternity and Charity Clinics in Batulati, Davao, and later to the corresponding clinic in Saug, Davao and then
to Catil, Davao. He was later assigned to the Municipality of Padada, also of Davao Province. He resisted his last assignment
and brought mandamus against the Secretary of Health to compel the latter to return him to his station in Catil, Davao as
Municipal Health Officer thereof. The Court, applying Miclat v. Ganaden dismissed this Petition holding that his
appointment not being to any specific station but as a physician in the Municipal Maternity and Charity Clinics, Bureau of
Hospitals, he could be transferred or assigned to any station where, in the opinion of the Secretary of Health, his services
may be utilized more effectively. 19
Also noteworthy is Sta. Maria v. Lopez 20 which involved the appointment of petitioner Sta. Maria as "Dean, College of
Education, University of the Philippines." Dean Sta. Maria was transferred by the President of the University of the
Philippines to the Office of the President, U.P., without demotion in rank or salary, thereby acceding to the demands of
student activists who were boycotting their classes in the U.P. College of Education. Dean Sta. Maria assailed his transfer
as an illegal and unconstitutional removal from office. In upholding Dean Sta. Maria's claim, the Court, speaking through
Mr. Justice Sanchez, laid down the applicable doctrine in the following terms:
4. Concededly, transfers there are which do not amount to removal. Some such transfer can be effected without the need
for charges being preferred, without trial or hering, and even without the consent of the employee.
The clue to such transfers may be found in the "nature of the appointment." Where the appointment does not indicate a
specific station, an employee may be transferred or reassigned provided the transfer affects no substantial change in title,
rank and salary. Thus one who is appointed "principal in the Bureau of Public Schools" and is designated to head a pilot
school may be transferred to the post of principal of another school.
And the 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 prescribe 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. . . .
5. The next point of inquiry is whether or not Administrative Order 77 would stand the test of validity vis-a-vis the
principles just enunciated.
xxx xxx xxx
To be stressed at this point, however, is that the appointment of Sta. Maria is that of "Dean, College of Education,
University of the Philippines." He is not merely a dean "in the university." His appointment is to a specific position; and,
more importantly, to a specific station. 21 (Citations omitted; emphases supplied)
For all the foregoing we conclude that the reassignment of petitioners Fernandez and de Lima from their stations in the
OPIA and OPR, respectively, to the Research Development Office (RDO) and from the RDO to the Commissions Regional
Offices in Regions V and III, respectively, without their consent, did not constitute a violation of their constitutional right
to security of tenure.
WHEREFORE, the Petition for Certiorari, Prohibition and Mandamus with Prayer for Writ of Preliminary Injunction or
Temporary Restraining Order is hereby DISMISSED. The Temporary Restraining Order issued by this Court on 27 September
1994 is hereby LIFTED. Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo Quiason, Puno, Vitug, Kapunan, Mendoza and
Francisco, JJ., concur.
Footnotes
1 Commissioner Thelma P. Gaminde did not participate in the adoption of this Resolution.
2 Rollo, pp. 27-29.
3 Book V, Tittle I, Subtitle A, Chapter 3, 1987 Revised Administrative Code.
4 Please see Motion to Lift Temporary Restraining Order filed by public respondents, Rollo, pp. 75-77.
5 Appari vs. Court of Appeals, 127 SCRA 231 (1984); Oliveros v. Villaluz, 57 SCRA 163 (1974); Fernandez vs. Ledesma, 117
Phil. 630 (1963); Alba vs. Evangelista, 100 Phil. 683 (1957).
6 The dual reference of the term "office" or "public office" is brought out in the definition of the term found in Section
2(9), Introductory Provisions of the Revised Administrative Code of 1987:
Office refers, within the framework of governmental organization, to any major functional unit of a department or bureau
including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are
defined by law or regulation. (Emphasis supplied)
7 The Civil Service Commission is not the only agency of government that has been expressly vested with this authority to
effect changes in internal organization. Comparable authority has been lodged in, e.g., the Commission on Elections and
the Office of the President. In respect of Comelec, Section 13, Chapter 3, Subtitle C, Title I, Book V, 1987 Revised
Administrative Code reads as follows:
The Commission may make changes in the composition, distribution, and assignment of field offices, as well its personnel,
whenever the exigencies of the service and the interest of free, orderly, honest, peaceful, and credible election so
require: Provided, That such changes shall be effective and enforceable only for the duration of the election period
concerned and shall not constitute a demotion, either in rank or salary, nor result in a change of status; and Provided
further that there shall be no changes in the composition, distribution, or assignment within thirty days before the
election, except for cause, and after due notice and hearing, and that in no case shall a regional or assistant regional
director be assigned to a region, provincial election supervisor to a province, or municipality, where he and/or his spouse
are related to any candidate within the fourth civil degree or consanguinity or affinity as the case may be. (Section 13,
Chapter 3, Subtitle C, Title 1, Book V, Revised Administrative Code of 1987; Emphasis supplied)
With respect to the Office of the President, Section 31, Chapter 10, Title III, Book III, Revised Administrative Code of 1987,
vested the President with the following authority:
The President subject to the policy in the Executive Office and in order to achieve simplicity, economy, and efficiency, shall
have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he
may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper, including the immediate offices, the
Presidential Special Assistant Adviser System and the Common Staff Support System, by abolishing, consolidating, or
merging units thereof, or transferring functions from one unit to another;

47 Phil. 543

MALCOLM, J.:
The question to be decided on this appeal is whether that portion of Act No. 3107 which provides, that justices of the
peace and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years,
should be given retroactive or prospective effect.
Vicente Segovia was appointed justice of the peace of Dumanjug, Cebu, on January 21, 1907. He continuously occupied
this position until having passed sixty-five milestones, he was ordered by the Secretary of Justice on July 1, 1924, to vacate
the office. Since that date, Pedro Noel, the auxiliary justice of the peace has acted as justice of the peace for the
municipality of Dumanjug.
Mr. Segovia being desirous of avoiding a public scandal and of opposing physical resistance to the occupancy of the office
of justice of the peace by the auxiliary justice of the peace, instituted friendly quo warranto proceedings in the Court of
First Instance of Cebu to inquire into the right of Pedro Noel to occupy the office of justice of the peace, to oust the latter
therefrom, and to procure reinstatement as justice of the peace of Dumanjug. To this complaint, Pedro Noel interposed a
demurrer on the ground that it did not allege facts sufficient to constitute a cause of action, because Act No. 3107 was
constitutional and because Mr. Segovia being sixty-five years old had automatically ceased to be justice of the peace. On
the issue thus framed and on stipulated facts, judgment was rendered by Honorable Adolph Wislizenus, Judge of First
Instance, overruling the demurrer, and in favor of petitioner and against respondent.
Proceeding by way of elimination so as to resolve the case into its simplest factors, it will first be noted that the petitioner
abandons the untenable position, assumed by him in one portion of his complaint, to the effect that section 1 of Act No.
3107 is unconstitutional in that it impairs the contractual right of the petitioner to an office. It is a fundamental principle
that a public office cannot be regarded as the property of the incumbent, and that a public office is not a contract.
It will next be noted that, while the respondent as appellant assigns three errors in this court, the first two relating to
preliminary matters are ultimately renounced by him in order that there may be an authoritative decision on the main
issue. The third error specified and argued with ability by the provincial fiscal of Cebu, is that the trial judge erred in
declaring that the limitation regarding the age of justices of the peace provided by section 1 of Act No. 3107 is not
applicable to justices of the peace and auxiliary justices of the peace appointed and acting before said law went into effect.
Coming now to the law, we find on investigation the original provision pertinent to the appointment and term of office of
justices of the peace, in section 67 of Act No. 136, wherein it was provided that justices of the peace shall hold office
during the pleasure of the Commission. Act No. 1450, in force when Vicente Segovia was originally appointed justice of
the peace, amended section 67 of the Judiciary Law by making the term of office of justices and auxiliary justices of the
peace two years from the first Monday in January nearest the date of appointment. Shortly after Segovia's appointment,
however, the law was again amended by Act No. 1627 by providing that "all justices of the peace and auxiliary justices of
the peace shall hold office during good behavior and those now in office shall so continue." Later amended by Acts Nos.
2041 and 2617, the law was ultimately codified in sections 203 and 206 of the Administrative Code.
Codal section 203 in its first paragraph provides that "one justice of the peace and one auxiliary justice of the peace shall
be appointed by the Governor-General for the City of Manila, the City of Baguio, and for each municipality, township, and
municipal district in the Philippine Islands, and if the public interests shall so require, for any other minor political division
or unorganized territory in said Islands." It was this section which section 1 of Act No. 3107 amended by adding at the end
thereof the following proviso: "Provided, That justices and auxiliary justices of the peace shall be appointed to serve until
they have reached the age of sixty-five years." But section 206 of the Administrative Code entitled "Tenure of office," and
reading "a justice of the peace having the requisite legal qualifications shall hold office during good behavior unless his
office be lawfully abolished or merged in the jurisdiction of some other justice," was left unchanged by Act No. 3107.
A sound canon of statutory construction is that a statute operates prospectively only and never retroactively, unless the
legislative intent to the contrary is made manifest either by the express terms of the statute or by necessary implication.
Following the lead of the United States Supreme Court and putting the rule more strongly, a statute ought not to receive
a construction making it act retroactively, unless the words used are so clear, strong, and imperative that no other meaning
can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. No court will hold a
statute to be retroactive when the legislature has not said so. As our Civil Code has it in article 3, "Law shall not have a
retroactive effect unless therein otherwise provided." (Farrel vs. Pingree [1888], 5 Utah, 443; 16 Pac, 843; Greer vs. City
of Asheville [1894], 114 N. C, 495; United States Fidelity & Guaranty Co. vs. Struthers Wells Co. [1907], 209 U. S., 306;
Montilla vs. Agustinian Corporation [1913], 24 Phil., 220; In re will of Riosa [1918], 39 Phil., 23.)
The same rule is followed by the courts with reference to public offices. A well-known New York decision held that "though
there is no vested right in an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right
to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated." (People
ex rel. Ryan vs. Green [1874], 58 N. Y., 295.) In another case, a new constitutional provision as to the advanced age which
should prevent the incumbents of certain judicial offices from retaining them was held prospective; it did not apply to
persons in office at the time of its taking effect. (People vs. Gardner, 59 Barb., 198; II Lewis' Sutherland Statutory
Construction, Chap. XVII, particularly pages 1161, 1162; Mechem on Public Officers, sec. 389.)
The case at bar is not the same as the case of Chanco vs. Imperial ([1916], 34 Phil., 329). In that case, the question was as
to the validity of section 7 of Act No. 2347. The law under consideration not only provided that Judges of First Instance
shall serve until they have reached the age of sixty-five years, but it further provided "that the present judges of Courts of
First Instance * * * vacate their positions on the taking effect of this Act: and the Governor-General, with the advice and
consent of the Philippine Commission, shall make new appointments of judges of Courts of First Instance * * *." There,
the intention of the Legislature to vacate the office was clearly expressed. Here, it is not expressed at all.
The language of Act No. 3107 amendatory of section 203 of the Administrative Code, gives no indication of retroactive
effect. The law signifies no purpose of operating upon existing rights. A proviso was merely tacked on to section 203 of
the Administrative Code, while leaving intact section 206 of the same Code which permits justices of the peace to hold
office during good behavior. In the absence of provisions expressly making the law applicable to justices of the peace then
in office, and in the absence of provisions impliedly indicative of such legislative intent, the courts would not be justified
in giving the law an interpretation which would legislate faithful public servants out of office.
Answering the question with which we began our decision, we hold that the proviso added to section 203 of the
Administrative Code by section 1 of Act No. 3107, providing that justices and auxiliary justices of the peace shall be
appointed to serve until they have reached the age of sixty-five years, should be given prospective effect only, and so is
not applicable to justices of the peace and auxiliary justices of the peace appointed before Act No. 3107 went into force.
Consequently, it results that the decision of the trial court is correct in its findings of fact and law and in its disposition of
the case.
Judgment affirmed, without costs. It is so ordered.
Villamor, Ostrand, Johns, and Romualdez, JJ., concur.
Johnson, J., concurs in the result.

G.R. No. 81954 August 8, 1989

CESAR Z. DARIO, petitioner,
vs.
HON. SALVADOR M. MISON, HON. VICENTE JAYME and HON. CATALINO MACARAIG, JR., in their respective capacities
as Commissioner of Customs, Secretary of Finance, and Executive Secretary, respondents.
G.R. No. 81967 August 8, 1989
VICENTE A. FERIA JR., petitioner,
vs.
HON. SALVADOR M. MISON, HON. VICENTE JAYME, and HON. CATALINO MACARAIG, JR., in their respective capacities
as Commissioner of Customs, Secretary of Finance, and Executive Secretary, respondents.
G.R. No. 82023 August 8, 1989
ADOLFO CASARENO, PACIFICO LAGLEVA, JULIAN C. ESPIRITU, DENNIS A. AZARRAGA, RENATO DE JESUS, NICASIO C.
GAMBOA, CORAZON RALLOS NIEVES, FELICITACION R. GELUZ, LEODEGARIO H. FLORESCA, SUBAER PACASUM, ZENAIDA
LANARIA, JOSE B. ORTIZ, GLICERIO R. DOLAR, CORNELIO NAPA, PABLO B. SANTOS, FERMIN RODRIGUEZ, DALISAY
BAUTISTA, LEONARDO JOSE, ALBERTO LONTOK, PORFIRIO TABINO, JOSE BARREDO, ROBERTO ARNALDO, ESTER TAN,
PEDRO BAKAL, ROSARIO DAVID, RODOLFO AFUANG, LORENZO CATRE, LEONCIA CATRE, ROBERTO ABADA, petitioners,
vs.
COMMISSIONER SALVADOR M. MISON, COMMISSIONER, BUREAU OF CUSTOMS, respondent.
G.R. No. 83737 August 8, 1989
BENEDICTO L. AMASA and WILLIAM S. DIONISIO, petitioners,
vs.
PATRICIA A. STO. TOMAS, in her capacity as Chairman of the Civil Service Commission and SALVADOR MISON, in his
capacity as Commissioner of the Bureau of Customs, respondents.
G.R. No. 85310 August 8, 1989
SALVADOR M. MISON, in his capacity as Commissioner of Customs, petitioner,
vs.
CIVIL SERVICE COMMISSION, ABACA, SISINIO T., ABAD, ROGELIO C., ABADIANO, JOSE P., ABCEDE, NEMECIO C., ABIOG,
ELY F., ABLAZA, AURORA M., AGBAYANI, NELSON I., AGRES ANICETO, AGUILAR, FLOR, AGUILUCHO MA. TERESA R.,
AGUSTIN, BONIFACIO T., ALANO, ALEX P., ALBA, MAXIMO F. JR., ALBANO, ROBERT B., ALCANTARA, JOSE G., ALMARIO,
RODOLFO F., ALVEZ, ROMUALDO R., AMISTAD RUDY M., AMOS, FRANCIS F., ANDRES, RODRIGO V., ANGELES, RICARDO
S., ANOLIN, MILAGROS H., AQUINO, PASCASIO E., ARABE, MELINDA M., ARCANGEL, AGUSTIN S., JR., ARPON, ULPLIANO
U., JR., ARREZA, ARTEMIO M., JR., ARROJO, ANTONIO P., ARVISU, ALEXANDER S., ASCAÑ;O, ANTONIO T., ASLAHON,
JULAHON P., ASUNCION, VICTOR R., ATANGAN, LORNA S., ATIENZA, ALEXANDER R., BACAL, URSULINO C., BAÑ;AGA,
MARLOWE, Z., BANTA, ALBERTO T., BARREDO, JOSE B., BARROS, VICTOR C., BARTOLOME, FELIPE A., BAYSAC,
REYNALDO S., BELENO, ANTONIO B., BERNARDO, ROMEO D., BERNAS, MARCIANO S., BOHOL, AUXILIADOR G., BRAVO,
VICTOR M., BULEG, BALILIS R., CALNEA, MERCEDES M., CALVO, HONESTO G., CAMACHO, CARLOS V., CAMPOS,
RODOLFO C., CAPULONG, RODRIGO G., CARINGAL, GRACIA Z., CARLOS, LORENZO B., CARRANTO, FIDEL U.,
CARUNGCONG, ALFREDO M., CASTRO, PATRICIA J., CATELO, ROGELIO B., CATURLA, MANUEL B., CENIZAL, JOSEFINA F.,
CINCO, LUISITO, CONDE0, JOSE C., JR., CORCUERA, FIDEL S., CORNETA, VICENTE S., CORONADO, RICARDO S., CRUZ,
EDUARDO S., CRUZ, EDILBERTO A., CRUZ, EFIGENIA B., CRUZADO, MARCIAL C., CUSTODIO, RODOLFO M., DABON,
NORMA M., DALINDIN, EDNA MAE D., DANDAL, EDEN F., DATUHARON, SATA A., DAZO, GODOFREDO L., DE CASTRO,
LEOPAPA, DE GUZMAN, ANTONIO A., DE GUZMAN, RENATO E., DE LA CRUZ, AMADO A., JR., DE LA CRUZ, FRANCISCO
C., DE LA PEÑ;A, LEONARDO, DEL CAMPO, ORLANDO, DEL RIO, MAMERTO P., JR., DEMESA, WILHELMINA T., DIMAKUTA,
SALIC L., DIZON, FELICITAS A., DOCTOR, HEIDY M., DOLAR, GLICERIO R., DOMINGO, NICANOR J., DOMINGO, PERFECTO
V., JR., DUAY, JUANA G., DYSANGCO, RENATO F., EDILLOR, ALFREDO P., ELEVAZO, LEONARDO A., ESCUYOS, MANUEL
M., JR., ESMERIA, ANTONIO E., ESPALDON, MA. LOURDES H., ESPINA, FRANCO A., ESTURCO, RODOLFO C., EVANGELINO,
FERMIN I., FELIX, ERNESTO G., FERNANDEZ, ANDREW M., FERRAREN, ANTONIO C., FERRERA, WENCESLAO A.,
FRANCISCO, PELAGIO S., JR., FUENTES, RUDY L., GAGALANG, RENATO V., GALANG, EDGARDO R., GAMBOA, ANTONIO
C., GAN, ALBERTO R., GARCIA, GILBERT M., GARCIA, EDNA V., GARCIA, JUAN L., GAVIOLA, LILIAN V., GEMPARO,
SEGUNDINA G., GOBENCIONG, FLORDELIZ B., GRATE, FREDERICK R., GREGORIO, LAURO P., GUARTICO, AMMON H.,
GUIANG, MYRNA N., GUINTO, DELFIN C., HERNANDEZ, LUCAS A., HONRALES, LORETO N., HUERTO, LEOPOLDO H.,
HULAR , LANNYROSS E., IBAÑ;EZ, ESTER C., ILAGAN, HONORATO C., INFANTE, REYNALDO C., ISAIS, RAY C., ISMAEL,
HADJI AKRAM B., JANOLO, VIRGILIO M., JAVIER, AMADOR L., JAVIER, ROBERTO S., JAVIER, WILLIAM R., JOVEN, MEMIA
A., JULIAN, REYNALDO V., JUMAMOY, ABUNDIO A., JUMAQUIAO, DOMINGO F., KAINDOY, PASCUAL B., JR., KOH, NANIE
G., LABILLES, ERNESTO S., LABRADOR, WILFREDO M., LAGA, BIENVENIDO M., LAGLEVA, PACIFICO Z., LAGMAN,
EVANGELINE G., LAMPONG, WILFREDO G., LANDICHO, RESTITUTO A., LAPITAN, CAMILO M., LAURENTE, REYNALDO A.,
LICARTE, EVARISTO R., LIPIO, VICTOR O., LITTAUA, FRANKLIN Z., LOPEZ, MELENCIO L., LUMBA, OLIVIA., MACAISA,
BENITO T., MACAISA, ERLINDA C., MAGAT, ELPIDIO, MAGLAYA, FERNANDO P., MALABANAN, ALFREDO C., MALIBIRAN,
ROSITA D., MALIJAN, LAZARO V., MALLI, JAVIER M., MANAHAN, RAMON S., MANUEL, ELPIDIO R., MARAVILLA, GIL B.,
MARCELO, GIL C., MARIÑ;AS, RODOLFO V., MAROKET, JESUS C., MARTIN, NEMENCIO A., MARTINEZ, ROMEO M.,
MARTINEZ, ROSELINA M., MATIBAG, ANGELINA G., MATUGAS, ERNESTO T., MATUGAS, FRANCISCO T., MAYUGA,
PORTIA E., MEDINA, NESTOR M., MEDINA, ROLANDO S., MENDAVIA, AVELINO I., MENDOZA, POTENCIANO G., MIL, RAY
M., MIRAVALLES, ANASTACIA L., MONFORTE, EUGENIO, JR., G., MONTANO, ERNESTO F., MONTERO, JUAN M. III.,
MORALDE, ESMERALDO B., JR., MORALES, CONCHITA D.L., MORALES, NESTOR P., MORALES, SHIRLEY S., MUNAR,
JUANITA L., MUÑ;OZ, VICENTE R., MURILLO, MANUEL M., NACION, PEDRO R., NAGAL, HENRY N., NAPA, CORNELIO B.,
NAVARRO, HENRY L., NEJAL, FREDRICK E., NICOLAS, REYNALDO S., NIEVES, RUFINO A., OLAIVAR, SEBASTIAN T.,
OLEGARIO, LEO Q., ORTEGA, ARLENE R., ORTEGA, JESUS R., OSORIO, ABNER S., PAPIO, FLORENTINO T. II, PASCUA,
ARNULFO A., PASTOR, ROSARIO, PELAYO, ROSARIO L., PEÑ;A, AIDA C., PEREZ, ESPERIDION B., PEREZ, JESUS BAYANI M.,
PRE, ISIDRO A., PRUDENCIADO, EULOGIA S., PUNZALAN, LAMBERTO N., PURA, ARNOLD T., QUINONES, EDGARDO I.,
QUINTOS, AMADEO C., JR., QUIRAY, NICOLAS C., RAMIREZ, ROBERTO P., RAÑ;ADA, RODRIGO C., RARAS, ANTONIO A.,
RAVAL, VIOLETA V., RAZAL, BETTY R., REGALA, PONCE F., REYES, LIBERATO R., REYES, MANUEL E., REYES, NORMA Z.,
REYES, TELESFORO F., RIVERA, ROSITA L., ROCES, ROBERTO V., ROQUE, TERESITA S., ROSANES, MARILOU M., ROSETE,
ADAN I., RUANTO, REY, CRISTO C., JR., SABLADA, PASCASIO G., SALAZAR, SILVERIA S., SALAZAR, VICTORIA A.,
SALIMBACOD, PERLITA C., SALMINGO, LOURDES M., SANTIAGO, EMELITA B., SATINA, PORFIRIO C., SEKITO, COSME B.,
JR., SIMON, RAMON P., SINGSON, MELECIO C., SORIANO, ANGELO L., SORIANO, MAGDALENA R., SUMULONG, ISIDRO
L., JR., SUNICO, ABELARDO T., TABIJE, EMMA B., TAN, RUDY, GOROSPE, TAN, ESTER S., TAN, JULITA S., TECSON, BEATRIZ
B., TOLENTINO, BENIGNO A., TURINGAN, ENRICO T., JR., UMPA, ALI A., VALIC, LUCIO E., VASQUEZ, NICANOR B.,
VELARDE, EDGARDO C., VERA, AVELINO A., VERAME, OSCAR E., VIADO, LILIAN T., VIERNES, NAPOLEON K., VILLALON,
DENNIS A., VILLAR, LUZ L., VILLALUZ, EMELITO V., ZATA, ANGEL A., JR., ACHARON, CRISTETO, ALBA, RENATO B., AMON,
JULITA C., AUSTRIA, ERNESTO C., CALO, RAYMUNDO M., CENTENO, BENJAMIN R., DE CASTRO, LEOPAPA C ., DONATO,
ESTELITA P., DONATO, FELIPE S., FLORES, PEDRITO S., GALAROSA, RENATO, MALAWI, MAUYAG, MONTENEGRO,
FRANCISCO M., OMEGA, PETRONILO T., SANTOS, GUILLERMO F., TEMPLO, CELSO, VALDERAMA, JAIME B., and VALDEZ,
NORA M., respondents.
G.R. No. 85335 August 8, 1989
FRANKLIN Z. LITTAUA, ADAN I. ROSETE, FRANCISCO T. MATUGAS, MA. J. ANGELINA G. MATIBAG, LEODEGARDIO H.
FLORESCA, LEONARDO A. DELA PEÑ;A, ABELARDO T. SUNICO, MELENCIO L. LOPEZ, NEMENCIO A. MARTIN, RUDY M.
AMISTAD, ERNESTO T. MATUGAS, SILVERIA S. SALAZAR, LILLIAN V. GAVIOLA, MILAGROS ANOLIN, JOSE B. ORTIZ,
ARTEMIO ARREZA, JR., GILVERTO M. GARCIA, ANTONIO A. RARAS, FLORDELINA B. GOBENCIONG, ANICETO AGRES,
EDGAR Y. QUINONES, MANUEL B. CATURLA, ELY F. ABIOG, RODRIGO C. RANADA, LAURO GREGORIO, ALBERTO I. GAN,
EDGARDO GALANG, RAY C. ISAIS, NICANOR B. VASQUEZ, MANUEL ESCUYOS, JR., ANTONIO B. BELENO, ELPIO R.
MANUEL, AUXILIADOR C. BOHOL, LEONARDO ELEVAZO, VICENTE S. CORNETA, petitioners,
vs.
COM. SALVADOR M. MISON/BUREAU OF CUSTOMS and the CIVIL SERVICE COMMISSION, respondents.
G.R. No. 86241 August 8, 1989
SALVADOR M. MISON, in his capacity as Commissioner of Customs, petitioner,
vs.
CIVIL SERVICE COMMISSION, SENEN S. DIMAGUILA, ROMEO P. ARABE BERNARDO S. QUINTONG, GREGORIO P. REYES,
and ROMULO C. BADILLO respondents

SARMIENTO, J.:

The Court writes finis to this contreversy that has raged bitterly for the several months. It does so out of ligitimate
presentement of more suits reaching it as a consequence of the government reorganization and the instability it has
wrought on the performance and efficiency of the bureaucracy. The Court is apprehensive that unless the final word is
given and the ground rules are settled, the issue will fester, and likely foment on the constitutional crisis for the nation,
itself biset with grave and serious problems.
The facts are not in dispute.
On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING A NATIONAL POLICY TO
IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL
CONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION."
Among other things, Proclamation No. 3 provided:
SECTION 1. ...
The President shall give priority to measures to achieve the mandate of the people to:
(a) Completely reorganize the government, eradicate unjust and oppressive structures, and all iniquitous vestiges of the
previous regime; 1
...
Pursuant thereto, it was also provided:
SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy, efficiency,
and the eradication of graft and corruption.
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if
such is made within a period of one year from February 25, 1986.
SECTION 3. Any public officer or employee separated from the service as a result of the organization effected under this
Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder.
SECTION 4. The records, equipment, buildings, facilities and other properties of all government offices shall be carefully
preserved. In case any office or body is abolished or reorganized pursuant to this Proclamation, its FUNDS and properties
shall be transferred to the office or body to which its powers, functions and responsibilities substantially pertain. 2
Actually, the reorganization process started as early as February 25, 1986, when the President, in her first act in office,
called upon "all appointive public officials to submit their courtesy resignation(s) beginning with the members of the
Supreme Court."3 Later on, she abolished the Batasang Pambansa4 and the positions of Prime Minister and Cabinet 5 under
the 1973 Constitution.
Since then, the President has issued a number of executive orders and directives reorganizing various other government
offices, a number of which, with respect to elected local officials, has been challenged in this Court, 6and two of which,
with respect to appointed functionaries, have likewise been questioned herein. 7
On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THE
IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Executive Order No. 17 recognized the
"unnecessary anxiety and demoralization among the deserving officials and employees" the ongoing government
reorganization had generated, and prescribed as "grounds for the separation/replacement of personnel," the following:
SECTION 3. The following shall be the grounds for separation replacement of personnel:
1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;
2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Mnistry
Head concerned;
3) Gross incompetence or inefficiency in the discharge of functions;
4) Misuse of public office for partisan political purposes;
5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement
is in the interest of the service.8
On January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING THE MINISTRY OF
FINANCE." 9 Among other offices, Executive Order No. 127 provided for the reorganization of the Bureau of Customs 10 and
prescribed a new staffing pattern therefor.
Three days later, on February 2, 1987, 11 the Filipino people adopted the new Constitution.
On January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a Memorandum, in the nature of
"Guidelines on the Implementation of Reorganization Executive Orders," 12 prescribing the procedure in personnel
placement. It also provided:
1. By February 28, 1988, the employees covered by Executive Order 127 and the grace period extended to the Bureau of
Customs by the President of the Philippines on reorganization shall be:
a) informed of their re-appointment, or
b) offered another position in the same department or agency or
c) informed of their termination. 13
On the same date, Commissioner Mison constituted a Reorganization Appeals Board charged with adjudicating appeals
from removals under the above Memorandum. 14 On January 26, 1988, Commissioner Mison addressed several notices to
various Customs officials, in the tenor as follows:
Sir:
Please be informed that the Bureau is now in the process of implementing the Reorganization Program under Executive
Order No. 127.
Pursuant to Section 59 of the same Executive Order, all officers and employees of the Department of Finance, or the
Bureau of Customs in particular, shall continue to perform their respective duties and responsibilities in a hold-over
capacity, and that those incumbents whose positions are not carried in the new reorganization pattern, or who are not
re- appointed, shall be deemed separated from the service.
In this connection, we regret to inform you that your services are hereby terminated as of February 28, 1988. Subject to
the normal clearances, you may receive the retirement benefits to which you may be entitled under existing laws, rules
and regulations.
In the meantime, your name will be included in the consolidated list compiled by the Civil Service Commission so that you
may be given priority for future employment with the Government as the need arises.
Sincerely yours,
(Sgd) SALVADOR M. MISON
15
Commissioner
As far as the records will yield, the following were recipients of these notices:
1. CESAR DARIO
2. VICENTE FERIA, JR.
3. ADOLFO CASARENO
4. PACIFICO LAGLEVA
5. JULIAN C. ESPIRITU
6. DENNIS A. AZARRAGA
7. RENATO DE JESUS
8. NICASIO C. GAMBOA
9. CORAZON RALLOS NIEVES
10. FELICITACION R. GELUZ
11. LEODEGARIO H. FLORESCA
12. SUBAER PACASUM
13. ZENAIDA LANARIA
14. JOSE B. ORTIZ
15. GLICERIO R. DOLAR
16. CORNELIO NAPA
17. PABLO B. SANTOS
18. FERMIN RODRIGUEZ
19. DALISAY BAUTISTA
20. LEONARDO JOSE
21. ALBERTO LONTOK
22. PORFIRIO TABINO
23. JOSE BARREDO
24. ROBERTO ARNALDO
25. ESTER TAN
26. PEDRO BAKAL
27. ROSARIO DAVID
28. RODOLFO AFUANG
29. LORENZO CATRE
30. LEONCIA CATRE
31. ROBERTO ABADA
32. ABACA, SISINIO T.
33. ABAD, ROGELIO C.
34. ABADIANO, JOSE P
35. ABCEDE, NEMECIO C.
36. ABIOG, ELY F.
37. ABLAZA, AURORA M.
38. AGBAYANI, NELSON I.
39. AGRES, ANICETO
40. AGUILAR, FLOR
41. AGUILUCHO, MA. TERESA R.
42. AGUSTIN, BONIFACIO T.
43. ALANO, ALEX P.
44. ALBA, MAXIMO F. JR.
45. ALBANO, ROBERT B.
46. ALCANTARA, JOSE G.
47. ALMARIO, RODOLFO F.
48. ALVEZ, ROMUALDO R.
49. AMISTAD, RUDY M.
50. AMOS, FRANCIS F.
51. ANDRES, RODRIGO V.
52. ANGELES, RICARDO S.
53. ANOLIN, MILAGROS H.
54. AQUINO, PASCASIO E. L.
55. ARABE, MELINDA M.
56. ARCANGEL, AGUSTIN S, JR.
57. ARPON, ULPIANO U., JR.
58. ARREZA, ARTEMIO M, JR.
59. ARROJO, ANTONIO P.
60. ARVISU, ALEXANDER S.
61. ASCAÑ;O, ANTONIO T.
62. ASLAHON, JULAHON P.
63. ASUNCION, VICTOR R.
64. ATANGAN, LORNA S.
65. ANTIENZA, ALEXANDER R.
66. BACAL URSULINO C.
67. BAÑ;AGA, MARLOWE Z.
68. BANTA, ALBERTO T.
69. BARROS, VICTOR C.
70. BARTOLOME, FELIPE A.
71. BAYSAC, REYNALDO S.
72. BELENO, ANTONIO B.
73. BERNARDO, ROMEO D.
74. BERNAS, MARCIANO S.
75. BOHOL, AUXILIADOR G.
76. BRAVO, VICTOR M.
77. BULEG, BALILIS R.
78. CALNEA, MERCEDES M.
79. CALVO, HONESTO G.
80. CAMACHO, CARLOS V.
81. CAMPOS, RODOLFO C.
82. CAPULONG, RODRIGO G.
83. CARINGAL, GRACIA Z.
84. CARLOS, LORENZO B.
85. CARRANTO, FIDEL U.
86. CARUNGCONG, ALFREDO M.
87. CASTRO, PATRICIA J.
88. CATELO, ROGELIO B.
89. CATURLA, MANUEL B.
90. CENIZAL, JOSEFINA F.
91. CINCO, LUISITO
92. CONDE, JOSE C., JR.
93. CORCUERA, FIDEL S.
94. CORNETA, VICENTE S.
95. CORONADO, RICARDO S.
96. CRUZ, EDUARDO S.
97. CRUZ, EDILBERTO A,
98. CRUZ, EFIGENIA B.
99. CRUZADO,NORMA M.
100. CUSTODIO, RODOLFO M.
101. DABON, NORMA M.
102. DALINDIN, EDNA MAE D.
103. DANDAL, EDEN F.
104. DATUHARON, SATA A.
105. DAZO, GODOFREDO L.
106. DE CASTRO, LEOPAPA
107. DE GUZMAN, ANTONIO A.
108. DE GUZMAN, RENATO E.
109. DE LA CRUZ, AMADO A., JR.
110. DE LA CRUZ, FRANCISCO C.
111. DE LA PEÑ;A, LEONARDO
112. DEL CAMPO, ORLANDO
113. DEL RIO, MAMERTO P., JR.
114. DEMESA, WILHELMINA T.
115. DIMAKUTA, SALIC L.
116. DIZON, FELICITAS A.
117. DOCTOR, HEIDY M.
118. DOMINGO, NICANOR J.
119. DOMINGO, PERFECTO V., JR.
120. DUAY, JUANA G.
121. DYSANGCO, RENATO F.
122. EDILLOR, ALFREDO P.
123. ELEVAZO, LEONARDO A
124. ESCUYOS, MANUEL M., JR.
125. ESMERIA, ANTONIO E.
126. ESPALDON, MA. LOURDES H.
127. ESPINA, FRANCO A.
128. ESTURCO, RODOLFO C.
129. EVANGELINO, FERMIN I.
130. FELIX, ERNESTO G.
131. FERNANDEZ, ANDREW M.
132. FERRAREN, ANTONIO C.
133. FERRERA, WENCESLAO A.
134. FRANCISCO, PELAGIO S, JR.
135. FUENTES, RUDY L.
136. GAGALANG, RENATO V.
137. GALANG, EDGARDO R.
138. GAMBOA, ANTONIO C.
139. GAN, ALBERTO P
140. GARCIA, GILBERT M.
141. GARCIA, EDNA V.
142. GARCIA, JUAN L.
143. GAVIOIA, LILIAN V.
144. GEMPARO, SEGUNDINA G.
145. GOBENCIONG, FLORDELIZ B.
146. GRATE, FREDERICK R.
147. GREGORIO, LAURO P.
148. GUARTICO, AMMON H.
149. GUIANG, MYRNA N.
150. GUINTO, DELFIN C.
151. HERNANDEZ, LUCAS A.
152. HONRALES, LORETO N.
153. HUERTO, LEOPOLDO H.
154. HULAR, LANNYROSS E.
155. IBAÑ;EZ, ESTER C.
156. ILAGAN, HONORATO C.
157. INFANTE, REYNALDO C.
158. ISAIS, RAY C.
159. ISMAEL, HADJI AKRAM B.
160. JANOLO, VIRGILIO M.
161. JAVIER, AMADOR L.
162. JAVIER, ROBERTO S.
163. JAVIER, WILLIAM R.
164. JOVEN, MEMIA A.
165. JULIAN, REYNALDO V.
166. JUMAMOY, ABUNDIO A.
167. JUMAQUIAO, DOMINGO F.
168. KAINDOY, PASCUAL B., JR.
169. KOH, NANIE G.
170. LABILLES, ERNESTO S.
171. LABRADOR, WILFREDO M.
172. LAGA, BIENVENIDO M.
173. LAGMAN, EVANGELINE G.
174. LAMPONG, WILFREDO G.
175. LANDICHO, RESTITUTO A.
176. LAPITAN, CAMILO M.
177. LAURENTE, REYNALDO A.
178. LICARTE, EVARISTO R.
179. LIPIO, VICTOR O.
180. LITTAUA, FRANKLIN Z.
181. LOPEZ, MELENCIO L.
182. LUMBA, OLIVIA R.
183. MACAISA, BENITO T.
184. MACAISA, ERLINDA C.
185. MAGAT, ELPIDIO
186. MAGLAYA, FERNANDO P.
187. MALABANAN, ALFREDO C.
188. MALIBIRAN, ROSITA D.
189. MALIJAN, LAZARO V.
190. MALLI, JAVIER M.
191. MANAHAN, RAMON S.
192. MANUEL, ELPIDIO R.
193. MARAVILLA, GIL B.
194. MARCELO, GIL C.
195. MARIÑ;AS, RODOLFO V.
196. MAROKET ,JESUS C.
197. MARTIN, NEMENCIO A.
198. MARTINEZ, ROMEO M.
199. MARTINEZ, ROSELINA M.
200. MATIBAG, ANGELINA G.
201. MATUGAS, ERNESTO T.
202. MATUGAS, FRANCISCO T.
203. MAYUGA, PORTIA E.
204. MEDINA, NESTOR M.
205. MEDINA, ROLANDO S.
206. MENDAVIA, AVELINO
207. MENDOZA, POTENCIANO G.
208. MIL, RAY M.
209. MIRAVALLES, ANASTACIA L.
210. MONFORTE, EUGENIO, JR. G.
211. MONTANO, ERNESTO F.
212. MONTERO, JUAN M. III
213. MORALDE, ESMERALDO B., JR.
214. MORALES, CONCHITA D. L
215. MORALES, NESTOR P.
216. MORALES, SHIRLEY S.
217. MUNAR, JUANITA L.
218. MUÑ;OZ, VICENTE R.
219. MURILLO, MANUEL M.
220. NACION, PEDRO R.
221. NAGAL, HENRY N.
222. NAVARRO, HENRY L.
223. NEJAL FREDRICK E.
224. NICOLAS, REYNALDO S.
225. NIEVES, RUFINO A.
226. OLAIVAR, SEBASTIAN T.
227. OLEGARIO, LEO Q.
228. ORTEGA, ARLENE R.
229. ORTEGA, JESUS R.
230. OSORIO, ABNER S.
231. PAPIO FLORENTINO T. II
232. PASCUA, ARNULFO A.
233. PASTOR, ROSARIO
234. PELAYO, ROSARIO L.
235. PEÑ;A, AIDA C.
236. PEREZ, ESPERIDION B.
237. PEREZ, JESUS BAYANI M.
238. PRE, ISIDRO A.
239. PRUDENCIADO, EULOGIA S.
240. PUNZALAN, LAMBERTO N.
241. PURA, ARNOLD T.
242. QUINONES, EDGARDO I.
243. QUINTOS, AMADEO C., JR.
244. QUIRAY, NICOLAS C.
245. RAMIREZ, ROBERTO P.
246. RANADA, RODRIGO C.
247. RARAS, ANTONIO A.
248. RAVAL, VIOLETA V.
249. RAZAL, BETTY R.
250. REGALA, PONCE F.
251. REYES, LIBERATO R.
252. REYES, MANUEL E.
253. REYES, NORMA Z.
254. REYES, TELESPORO F.
255. RIVERA, ROSITA L.
256. ROCES, ROBERTO V.
257. ROQUE, TERESITA S.
258. ROSANES, MARILOU M.
259. ROSETE, ADAN I.
260. RUANTO, REY CRISTO C., JR.
261. SABLADA, PASCASIO G.
262. SALAZAR, SILVERIA S.
263. SALAZAR, VICTORIA A.
264. SALIMBACOD, PERLITA C.
265. SALMINGO, LOURDES M.
266. SANTIAGO, EMELITA B.
267. SATINA, PORFIRIO C.
268. SEKITO, COSME B JR.
269. SIMON, RAMON P.
270. SINGSON, MELENCIO C.
271. SORIANO, ANGELO L.
272. SORIANO, MAGDALENA R.
273. SUNICO, ABELARDO T .
274. TABIJE, EMMA B.
275. TAN, RUDY GOROSPE
276. TAN, ESTER S.
277. TAN, JULITA S.
278. TECSON, BEATRIZ B.
279. TOLENTINO, BENIGNO A.
280. TURINGAN, ENRICO T JR.
281. UMPA, ALI A.
282. VALIC, LUCIO E.
283. VASQUEZ, NICANOR B.
284. VELARDE, EDGARDO C.
285. VERA, AVELINO A.
286. VERAME, OSCAR E.
287. VIADO, LILIAN T.
288. VIERNES, NAPOLEON K
289. VILLALON, DENNIS A.
290. VILLAR, LUZ L.
291. VILLALUZ, EMELITO V.
292. VILLAR, LUZ L.
293. ZATA, ANGELA JR.
294. ACHARON, CRISTETO
295. ALBA, RENATO B.
296. AMON, JULITA C.
297. AUSTRIA, ERNESTO C.
298. CALO, RAYMUNDO M.
299. CENTENO, BENJAMIN R.
300. DONATO, ESTELITA P.
 301. DONATO, FELIPE S
302. FLORES, PEDRITO S.
303. GALAROSA, RENATO
304. MALAWI, MAUYAG
305. MONTENEGRO, FRANSISCO M.
306. OMEGA, PETRONILO T.
307. SANTOS, GUILLERMO P.
308. TEMPLO, CELSO
309. VALDERAMA, JAIME B.
310. VALDEZ, NORA M.
Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the petitioner in G.R. No. 81967; Messrs. Adolfo
Caserano Pacifico Lagleva Julian C. Espiritu, Dennis A. Azarraga Renato de Jesus, Nicasio C. Gamboa, Mesdames Corazon
Rallos Nieves and Felicitacion R. Geluz Messrs. Leodegario H. Floresca, Subaer Pacasum Ms. Zenaida Lanaria Mr. Jose B.
Ortiz, Ms. Gliceria R. Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin Rodriguez, Ms. Daligay Bautista, Messrs. Leonardo
Jose, Alberto Lontok, Porfirio Tabino Jose Barredo, Roberto Arnaldo, Ms. Ester Tan, Messrs. Pedro Bakal, Rosario David,
Rodolfo Afuang, Lorenzo Catre,, Ms. Leoncia Catre, and Roberto Abaca, are the petitioners in G.R. No. 82023; the last
279 16 individuals mentioned are the private respondents in G.R. No. 85310.
As far as the records will likewise reveal, 17 a total of 394 officials and employees of the Bureau of Customs were given
individual notices of separation. A number supposedly sought reinstatement with the Reorganization Appeals Board while
others went to the Civil Service Commission. The first thirty-one mentioned above came directly to this Court.
On June 30, 1988, the Civil Service Commission promulgated its ruling ordering the reinstatement of the 279 employees,
the 279 private respondents in G.R. No. 85310, the dispositive portion of which reads as follows:
WHEREFORE, it is hereby ordered that:
1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the Bureau of Customs without
loss of seniority rights;
2. Appellants be paid their back salaries reckoned from the dates of their illegal termination based on the rates under the
approved new staffing pattern but not lower than their former salaries.
This action of the Commission should not, however, be interpreted as an exoneration of the appellants from any
accusation of wrongdoing and, therefore, their reappointments are without prejudice to:
1. Proceeding with investigation of appellants with pending administrative cases, and where investigations have been
finished, to promptly, render the appropriate decisions;
2. The filing of appropriate administrative complaints against appellants with derogatory reports or information if evidence
so warrants.
SO ORDERED. 18
On July 15, 1988, Commissioner Mison, represented by the Solicitor General, filed a motion for reconsideration Acting on
the motion, the Civil Service Commission, on September 20, 1988, denied reconsideration. 19
On October 20, 1988, Commissioner Mison instituted certiorari proceedings with this Court, docketed, as above-stated,
as G.R. No. 85310 of this Court.
On November 16,1988, the Civil Service Commission further disposed the appeal (from the resolution of the
Reorganization Appeals Board) of five more employees, holding as follows:
WHEREFORE, it is hereby ordered that:
1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the Bureau of Customs without
loss of seniority rights; and
2. Appellants be paid their back salaries to be reckoned from the date of their illegal termination based on the rates under
the approved new staffing pattern but not lower than their former salaries.
This action of the Commission should not, however, be interpreted as an exoneration of the herein appellants from any
accusation of any wrongdoing and therefore, their reappointments are without prejudice to:
1. Proceeding with investigation of appellants with pending administrative cases, if any, and where investigations have
been finished, to promptly, render the appropriate decisions; and
2. The filing of appropriate administrative complaints against appellant with derogatory reports or information, if any, and
if evidence so warrants.
SO ORDERED. 20
On January 6, 1989, Commissioner Mison challenged the Civil Service Commission's Resolution in this Court; his petitioner
has been docketed herein as G.R. No. 86241. The employees ordered to be reinstated are Senen Dimaguila, Romeo Arabe,
Bemardo Quintong,Gregorio Reyes, and Romulo Badillo. 21
On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE OFFICERS
AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION," 22was signed into law. Under Section
7, thereof:
Sec. 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation of
the provisions of this Act, shall be ordered reinstated or reappointed as the case may be without loss of seniority and shall
be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, including
casuals and temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid
the appropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from the
date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may
be: Provided, That application for clearance has been filed and no action thereon has been made by the corresponding
department or agency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount
equivalent to one (1) month salary for every year of service. Such separation pay and retirement benefits shall have priority
of payment out of the savings of the department or agency concerned. 23
On June 23, 1988, Benedicto Amasa and William Dionisio, customs examiners appointed by Commissioner Mison pursuant
to the ostensible reorganization subject of this controversy, petitioned the Court to contest the validity of the statute. The
petition is docketed as G.R. No. 83737.
On October 21, 1988, thirty-five more Customs officials whom the Civil Service Commission had ordered reinstated by its
June 30,1988 Resolution filed their own petition to compel the Commissioner of Customs to comply with the said
Resolution. The petition is docketed as G.R. No. 85335.
On November 29, 1988, we resolved to consolidate all seven petitions.
On the same date, we resolved to set the matter for hearing on January 12, 1989. At the said hearing, the parties,
represented by their counsels (a) retired Justice Ruperto Martin; (b) retired Justice Lino Patajo. (c) former Dean Froilan
Bacungan (d) Atty. Lester Escobar (e) Atty. Faustino Tugade and (f) Atty. Alexander Padilla, presented their arguments.
Solicitor General Francisco Chavez argued on behalf of the Commissioner of Customs (except in G.R. 85335, in which he
represented the Bureau of Customs and the Civil Service Commission).lâwphî1.ñèt Former Senator Ambrosio Padilla also
appeared and argued as amicus curiae Thereafter, we resolved to require the parties to submit their respective
memoranda which they did in due time.
There is no question that the administration may validly carry out a government reorganization — insofar as these cases
are concerned, the reorganization of the Bureau of Customs — by mandate not only of the Provisional Constitution, supra,
but also of the various Executive Orders decreed by the Chief Executive in her capacity as sole lawmaking authority under
the 1986-1987 revolutionary government. It should also be noted that under the present Constitution, there is a
recognition, albeit implied, that a government reorganization may be legitimately undertaken, subject to certain
conditions. 24
The Court understands that the parties are agreed on the validity of a reorganization per se the only question being, as
shall be later seen: What is the nature and extent of this government reorganization?
The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of
certain parties to sue, 25 and other technical objections, for two reasons, "[b]ecause of the demands of public interest,
including the need for stability in the public service,"26 and because of the serious implications of these cases on the
administration of the Philippine civil service and the rights of public servants.
The urgings in G.R. Nos. 85335 and 85310, that the Civil Service Commission's Resolution dated June 30, 1988 had attained
a character of finality for failure of Commissioner Mison to apply for judicial review or ask for reconsideration seasonalbly
under Presidential Decree No. 807, 27 or under Republic Act No. 6656, 28 or under the Constitution, 29 are likewise rejected.
The records show that the Bureau of Customs had until July 15, 1988 to ask for reconsideration or come to this Court
pursuant to Section 39 of Presidential Decree No. 807. The records likewise show that the Solicitor General filed a motion
for reconsideration on July 15, 1988.30 The Civil Service Commission issued its Resolution denying reconsideration on
September 20, 1988; a copy of this Resolution was received by the Bureau on September 23, 1988.31 Hence the Bureau
had until October 23, 1988 to elevate the matter on certiorari to this Court.32 Since the Bureau's petition was filed on
October 20, 1988, it was filed on time.
We reject, finally, contentions that the Bureau's petition (in G.R. 85310) raises no jurisdictional questions, and is therefore
bereft of any basis as a petition for certiorari under Rule 65 of the Rules of Court. 33 We find that the questions raised in
Commissioner Mison's petition (in G.R. 85310) are, indeed, proper for certiorari, if by "jurisdictional questions" we mean
questions having to do with "an indifferent disregard of the law, arbitrariness and caprice, or omission to weigh pertinent
considerations, a decision arrived at without rational deliberation, 34 as distinguished from questions that require "digging
into the merits and unearthing errors of judgment 35 which is the office, on the other hand, of review under Rule 45 of the
said Rules. What cannot be denied is the fact that the act of the Civil Service Commission of reinstating hundreds of
Customs employees Commissioner Mison had separated, has implications not only on the entire reorganization process
decreed no less than by the Provisional Constitution, but on the Philippine bureaucracy in general; these implications are
of such a magnitude that it cannot be said that — assuming that the Civil Service Commission erred — the Commission
committed a plain "error of judgment" that Aratuc says cannot be corrected by the extraordinary remedy of certiorari or
any special civil action. We reaffirm the teaching of Aratuc — as regards recourse to this Court with respect to rulings of
the Civil Service Commission — which is that judgments of the Commission may be brought to the Supreme Court
through certiorari alone, under Rule 65 of the Rules of Court.
In Aratuc we declared:
It is once evident from these constitutional and statutory modifications that there is a definite tendency to enhance and
invigorate the role of the Commission on Elections as the independent constitutional body charged with the safeguarding
of free, peaceful and honest elections. The framers of the new Constitution must be presumed to have definite knowledge
of what it means to make the decisions, orders and rulings of the Commission "subject to review by the Supreme Court'.
And since instead of maintaining that provision intact, it ordained that the Commission's actuations be instead 'brought
to the Supreme Court on certiorari", We cannot insist that there was no intent to change the nature of the remedy,
considering that the limited scope of certiorari, compared to a review, is well known in remedial law.36
We observe no fundamental difference between the Commission on Elections and the Civil Service Commission (or the
Commission on Audit for that matter) in terms of the constitutional intent to leave the constitutional bodies alone in the
enforcement of laws relative to elections, with respect to the former, and the civil service, with respect to the latter (or
the audit of government accounts, with respect to the Commission on Audit). As the poll body is the "sole judge" 37 of all
election cases, so is the Civil Service Commission the single arbiter of all controversies pertaining to the civil service.
It should also be noted that under the new Constitution, as under the 1973 Charter, "any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari," 38 which, as Aratuc tells us, "technically connotes
something less than saying that the same 'shall be subject to review by the Supreme Court,' " 39 which in turn suggests an
appeal by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service
Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount to lack or
excess of jurisdiction, complaints that justify certiorari under Rule 65.
While Republic Act No. 6656 states that judgments of the Commission are "final and executory"40 and hence,
unappealable, under Rule 65, certiorari precisely lies in the absence of an appeal. 41
Accordingly, we accept Commissioner Mison petition (G.R. No. 85310) which clearly charges the Civil Service Commission
with grave abuse of discretion, a proper subject of certiorari, although it may not have so stated in explicit terms.
As to charges that the said petition has been filed out of time, we reiterate that it has been filed seasonably. It is to be
stressed that the Solicitor General had thirty days from September 23, 1988 (the date the Resolution, dated September
20,1988, of the Civil Service Commission, denying reconsideration, was received) to commence the
instant certiorari proceedings. As we stated, under the Constitution, an aggrieved party has thirty days within which to
challenge "any decision, order, or ruling" 42 of the Commission. To say that the period should be counted from the
Solicitor's receipt of the main Resolution, dated June 30, 1988, is to say that he should not have asked for reconsideration
But to say that is to deny him the right to contest (by a motion for reconsideration) any ruling, other than the main decision,
when, precisely, the Constitution gives him such a right. That is also to place him at a "no-win" situation because if he did
not move for a reconsideration, he would have been faulted for demanding certioraritoo early, under the general rule that
a motion for reconsideration should preface a resort to a special civil action. 43Hence, we must reckon the thirty-day period
from receipt of the order of denial.
We come to the merits of these cases.
G.R. Nos. 81954, 81967, 82023, and 85335:
The Case for the Employees
The petitioner in G.R. No. 81954, Cesar Dario was one of the Deputy Commissioners of the Bureau of Customs until his
relief on orders of Commissioner Mison on January 26, 1988. In essence, he questions the legality of his dismiss, which he
alleges was upon the authority of Section 59 of Executive Order No. 127, supra, hereinbelow reproduced as follows:
SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers and employees of the Ministry
shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding
salaries and benefits unless in the meantime they are separated from government service pursuant to Executive Order
No. 17 (1986) or Article III of the Freedom Constitution.
The new position structure and staffing pattern of the Ministry shall be approved and prescribed by the Minister within
one hundred twenty (120) days from the approval of this Executive Order and the authorized positions created hereunder
shall be filled with regular appointments by him or by the President, as the case may be. Those incumbents whose
positions are not included therein or who are not reappointed shall be deemed separated from the service. Those
separated from the service shall receive the retirement benefits to which they may be entitled under existing laws, rules
and regulations. Otherwise, they shall be paid the equivalent of one month basic salary for every year of service, or the
equivalent nearest fraction thereof favorable to them on the basis of highest salary received but in no case shall such
payment exceed the equivalent of 12 months salary.
No court or administrative body shall issue any writ of preliminary injunction or restraining order to enjoin the
separation/replacement of any officer or employee effected under this Executive Order.44
a provision he claims the Commissioner could not have legally invoked. He avers that he could not have been legally
deemed to be an "[incumbent] whose [position] [is] not included therein or who [is] not reappointed"45 to justify his
separation from the service. He contends that neither the Executive Order (under the second paragraph of the section)
nor the staffing pattern proposed by the Secretary of Finance 46 abolished the office of Deputy Commissioner of Customs,
but, rather, increased it to three. 47 Nor can it be said, so he further maintains, that he had not been
"reappointed" 48 (under the second paragraph of the section) because "[[r]eappointment therein presupposes that the
position to which it refers is a new one in lieu of that which has been abolished or although an existing one, has absorbed
that which has been abolished." 49 He claims, finally, that under the Provisional Constitution, the power to dismiss public
officials without cause ended on February 25, 1987,50 and that thereafter, public officials enjoyed security of tenure under
the provisions of the 1987 Constitution.51
Like Dario Vicente Feria, the petitioner in G.R. No. 81967, was a Deputy Commissioner at the Bureau until his separation
directed by Commissioner Mison. And like Dario he claims that under the 1987 Constitution, he has acquired security of
tenure and that he cannot be said to be covered by Section 59 of Executive Order No. 127, having been appointed on April
22, 1986 — during the effectivity of the Provisional Constitution. He adds that under Executive Order No. 39, "ENLARGING
THE POWERS AND FUNCTIONS OF THE COMMISSIONER OF CUSTOMS,"52 the Commissioner of Customs has the power
"[t]o appoint all Bureau personnel, except those appointed by the President," 53 and that his position, which is that of a
Presidential appointee, is beyond the control of Commissioner Mison for purposes of reorganization.
The petitioners in G.R. No. 82023, collectors and examiners in venous ports of the Philippines, say, on the other hand, that
the purpose of reorganization is to end corruption at the Bureau of Customs and that since there is no finding that they
are guilty of corruption, they cannot be validly dismissed from the service.
The Case for Commissioner Mison
In his comments, the Commissioner relies on this Court's resolution in Jose v. Arroyo54 in which the following statement
appears in the last paragraph thereof:
The contention of petitioner that Executive Order No. 127 is violative of the provision of the 1987 Constitution
guaranteeing career civil service employees security of tenure overlooks the provisions of Section 16, Article XVIII
(Transitory Provisions) which explicitly authorize the removal of career civil service employees "not for cause but as a
result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the
ratification of this Constitution." By virtue of said provision, the reorganization of the Bureau of Customs under Executive
Order No. 127 may continue even after the ratification of the Constitution, and career civil service employees may be
separated from the service without cause as a result of such reorganization.55
For this reason, Mison posits, claims of violation of security of tenure are allegedly no defense. He further states that the
deadline prescribed by the Provisional Constitution (February 25, 1987) has been superseded by the 1987 Constitution,
specifically, the transitory provisions thereof, 56 which allows a reorganization thereafter (after February 25, 1987) as this
very Court has so declared in Jose v. Arroyo. Mison submits that contrary to the employees' argument, Section 59 of
Executive Order No. 127 is applicable (in particular, to Dario and Feria in the sense that retention in the Bureau, under the
Executive Order, depends on either retention of the position in the new staffing pattern or reappointment of the
incumbent, and since the dismissed employees had not been reappointed, they had been considered legally separated.
Moreover, Mison proffers that under Section 59 incumbents are considered on holdover status, "which means that all
those positions were considered vacant." 57 The Solicitor General denies the applicability of Palma-Fernandez v. De la
Paz 58 because that case supposedly involved a mere transfer and not a separation. He rejects, finally, the force and effect
of Executive Order Nos. 17 and 39 for the reason that Executive Order No. 17, which was meant to implement the
Provisional Constitution, 59 had ceased to have force and effect upon the ratification of the 1987 Constitution, and that,
under Executive Order No. 39, the dismissals contemplated were "for cause" while the separations now under question
were "not for cause" and were a result of government reorganize organization decreed by Executive Order No. 127. Anent
Republic Act No. 6656, he expresses doubts on the constitutionality of the grant of retroactivity therein (as regards the
reinforcement of security of tenure) since the new Constitution clearly allows reorganization after its effectivity.
G.R. Nos. 85310 and 86241
The Position of Commissioner Mison
Commissioner's twin petitions are direct challenges to three rulings of the Civil Service Commission: (1) the Resolution,
dated June 30, 1988, reinstating the 265 customs employees above-stated; (2) the Resolution, dated September 20, 1988,
denying reconsideration; and (3) the Resolution, dated November 16, 1988, reinstating five employees. The
Commissioner's arguments are as follows:
1. The ongoing government reorganization is in the nature of a "progressive" 60 reorganization "impelled by the need to
overhaul the entire government bureaucracy" 61 following the people power revolution of 1986;
2. There was faithful compliance by the Bureau of the various guidelines issued by the President, in particular, as to
deliberation, and selection of personnel for appointment under the new staffing pattern;
3. The separated employees have been, under Section 59 of Executive Order No. 127, on mere holdover standing, "which
means that all positions are declared vacant;" 62
4. Jose v. Arroyo has declared the validity of Executive Order No. 127 under the transitory provisions of the 1987
Constitution;
5. Republic Act No. 6656 is of doubtful constitutionality.
The Ruling of the Civil Service Commission
The position of the Civil Service Commission is as follows:
1. Reorganizations occur where there has been a reduction in personnel or redundancy of functions; there is no showing
that the reorganization in question has been carried out for either purpose — on the contrary, the dismissals now disputed
were carried out by mere service of notices;
2. The current Customs reorganization has not been made according to Malacañ;ang guidelines; information on file with
the Commission shows that Commissioner Mison has been appointing unqualified personnel;
3. Jose v. Arroyo, in validating Executive Order No. 127, did not countenance illegal removals;
4. Republic Act No. 6656 protects security of tenure in the course of reorganizations.
The Court's ruling
Reorganization, Fundamental Principles of. —
I.
The core provision of law involved is Section 16 Article XVIII, of the 1987 Constitution. We quote:
Sec. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution
shag be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of
general application in force at the time of their separation. In lieul thereof, at the option of the employees, they may be
considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including
government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose
resignation, tendered in line with the existing policy, had been accepted. 63
The Court considers the above provision critical for two reasons: (1) It is the only provision — in so far as it mentions
removals not for cause — that would arguably support the challenged dismissals by mere notice, and (2) It is the single
existing law on reorganization after the ratification of the 1987 Charter, except Republic Act No. 6656, which came much
later, on June 10, 1988. [Nota been Executive Orders No. 116 (covering the Ministry of Agriculture & Food), 117 (Ministry
of Education, Culture & Sports), 119 (Health), 120 (Tourism), 123 (Social Welfare & Development), 124 (Public Works &
Highways), 125 transportation & Communications), 126 (Labor & Employment), 127 (Finance), 128 (Science &
Technology), 129 (Agrarian Reform), 131 (Natural Resources), 132 (Foreign Affairs), and 133 (Trade & Industry) were all
promulgated on January 30,1987, prior to the adoption of the Constitution on February 2, 1987].64
It is also to be observed that unlike the grants of power to effect reorganizations under the past Constitutions, the above
provision comes as a mere recognition of the right of the Government to reorganize its offices, bureaus, and
instrumentalities. Under Section 4, Article XVI, of the 1935 Constitution:
Section 4. All officers and employees in the existing Government of the Philippine Islands shall continue in office until the
Congress shall provide otherwise, but all officers whose appointments are by this Constitution vested in the President
shall vacate their respective office(s) upon the appointment and qualification of their successors, if such appointment is
made within a period of one year from the date of the inauguration of the Commonwealth of the Philippines. 65
Under Section 9, Article XVII, of the 1973 Charter:
Section 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office
until otherwise provided by law or decreed by the incumbent President of the Philippines, but all officials whose
appointments are by this Constitution vested in the Prime Minister shall vacate their respective offices upon the
appointment and qualification of their successors. 66
The Freedom Constitution is, as earlier seen, couched in similar language:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if
such is made within a period of one year from February 25, 1986.67
Other than references to "reorganization following the ratification of this Constitution," there is no provision for
"automatic" vacancies under the 1987 Constitution.
Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to
hasten the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure.
At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the
Constitution) as a result of reorganization carried out by reason of economy or to remove redundancy of functions. In the
latter case, the Government is obliged to prove good faith.68 In case of removals undertaken to comply with clear and
explicit constitutional mandates, the Government is not hard put to prove anything, plainly and simply because the
Constitution allows it.
Evidently, the question is whether or not Section 16 of Article XVIII of the 1987 Constitution is a grant of a license upon
the Government to remove career public officials it could have validly done under an "automatic" vacancy-authority and
to remove them without rhyme or reason.
As we have seen, since 1935, transition periods have been characterized by provisions for "automatic" vacancies. We take
the silence of the 1987 Constitution on this matter as a restraint upon the Government to dismiss public servants at a
moment's notice.
What is, indeed, apparent is the fact that if the present Charter envisioned an "automatic" vacancy, it should have said so
in clearer terms, as its 1935, 1973, and 1986 counterparts had so stated.
The constitutional "lapse" means either one of two things: (1) The Constitution meant to continue the reorganization
under the prior Charter (of the Revolutionary Government), in the sense that the latter provides for "automatic" vacancies,
or (2) It meant to put a stop to those 'automatic" vacancies. By itself, however, it is ambiguous, referring as it does to two
stages of reorganization — the first, to its conferment or authorization under Proclamation No. 3 (Freedom Charter) and
the second, to its implementation on its effectivity date (February 2, 1987).lâwphî1.ñèt But as we asserted, if the intent
of Section 16 of Article XVIII of the 1987 Constitution were to extend the effects of reorganize tion under the Freedom
Constitution, it should have said so in clear terms. It is illogical why it should talk of two phases of reorganization when it
could have simply acknowledged the continuing effect of the first reorganization.
Second, plainly the concern of Section 16 is to ensure compensation for victims" of constitutional revamps — whether
under the Freedom or existing Constitution — and only secondarily and impliedly, to allow reorganization. We turn to the
records of the Constitutional Commission:
INQUIRY OF MR. PADILLA
On the query of Mr. Padilla whether there is a need for a specific reference to Proclamation No. 3 and not merely state
"result of the reorganization following the ratification of this Constitution', Mr. Suarez, on behalf of the Committee, replied
that it is necessary, inasmuch as there are two stages of reorganization covered by the Section.
Mr. Padilla pointed out that since the proposal of the Commission on Government Reorganization have not been
implemented yet, it would be better to use the phrase "reorganization before or after the ratification of the Constitution'
to simplify the Section. Mr. Suarez instead suggested the phrase "as a result of the reorganization effected before or after
the ratification of the Constitution' on the understanding that the provision would apply to employees terminated because
of the reorganization pursuant to Proclamation No. 3 and even those affected by the reorganization during the Marcos
regime. Additionally, Mr. Suarez pointed out that it is also for this reason that the Committee specified the two
Constitutions the Freedom Constitution — and the 1986 [1987] Constitution. 69
Simply, the provision benefits career civil service employees separated from the service. And the separation contemplated
must be due to or the result of (1) the reorganization pursuant to Proclamation No. 3 dated March 25, 1986, (2) the
reorganization from February 2, 1987, and (3) the resignations of career officers tendered in line with the existing policy
and which resignations have been accepted. The phrase "not for cause" is clearly and primarily exclusionary, to exclude
those career civil service employees separated "for cause." In other words, in order to be entitled to the benefits granted
under Section 16 of Article XVIII of the Constitution of 1987, two requisites, one negative and the other positive, must
concur, to wit:
1. the separation must not be for cause, and
2. the separation must be due to any of the three situations mentioned above.
By its terms, the authority to remove public officials under the Provisional Constitution ended on February 25, 1987,
advanced by jurisprudence to February 2, 1987. 70 It Can only mean, then, that whatever reorganization is taking place is
upon the authority of the present Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it can
not be legitimately stated that we are merely continuing what the revolutionary Constitution of the Revolutionary
Government had started. We are through with reorganization under the Freedom Constitution — the first stage. We are
on the second stage — that inferred from the provisions of Section 16 of Article XVIII of the permanent basic document.
This is confirmed not only by the deliberations of the Constitutional Commission, supra, but is apparent from the Charter's
own words. It also warrants our holding in Esguerra and Palma-Fernandez, in which we categorically declared that after
February 2, 1987, incumbent officials and employees have acquired security of tenure, which is not a deterrent against
separation by reorganization under the quondam fundamental law.
Finally, there is the concern of the State to ensure that this reorganization is no "purge" like the execrated reorganizations
under martial rule. And, of course, we also have the democratic character of the Charter itself.
Commissioner Mison would have had a point, insofar as he contends that the reorganization is open-ended
("progressive"), had it been a reorganization under the revolutionary authority, specifically of the Provisional Constitution.
For then, the power to remove government employees would have been truly wide ranging and limitless, not only because
Proclamation No. 3 permitted it, but because of the nature of revolutionary authority itself, its totalitarian tendencies,
and the monopoly of power in the men and women who wield it.
What must be understood, however, is that notwithstanding her immense revolutionary powers, the President was,
nevertheless, magnanimous in her rule. This is apparent from Executive Order No. 17, which established safeguards
against the strong arm and ruthless propensity that accompanies reorganizations — notwithstanding the fact that
removals arising therefrom were "not for cause," and in spite of the fact that such removals would have been valid and
unquestionable. Despite that, the Chief Executive saw, as we said, the "unnecessary anxiety and demoralization" in the
government rank and file that reorganization was causing, and prescribed guidelines for personnel action. Specifically, she
said on May 28, 1986:
WHEREAS, in order to obviate unnecessary anxiety and demoralization among the deserving officials and employees,
particularly in the career civil service, it is necessary to prescribe the rules and regulations for implementing the said
constitutional provision to protect career civil servants whose qualifications and performance meet the standards of
service demanded by the New Government, and to ensure that only those found corrupt, inefficient and undeserving are
separated from the government service; 71
Noteworthy is the injunction embodied in the Executive Order that dismissals should be made on the basis of findings of
inefficiency, graft, and unfitness to render public service.*
The President's Memorandum of October 14, 1987 should furthermore be considered. We quote, in part:
Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further
layoffs this year of personnel as a result of the government reorganization. 72
Assuming, then, that this reorganization allows removals "not for cause" in a manner that would have been permissible
in a revolutionary setting as Commissioner Mison so purports, it would seem that the Commissioner would have been
powerless, in any event, to order dismissals at the Customs Bureau left and right. Hence, even if we accepted his
"progressive" reorganization theory, he would still have to come to terms with the Chief Executive's subsequent directives
moderating the revolutionary authority's plenary power to separate government officials and employees.
Reorganization under the 1987 Constitution, Nature, Extent, and Limitations of; Jose v. Arroyo, clarified. —
The controversy seems to be that we have, ourselves, supposedly extended the effects of government reorganization
under the Provisional Constitution to the regime of the 1987 Constitution. Jose v. Arroyo73 is said to be the authority for
this argument. Evidently, if Arroyo indeed so ruled, Arroyo would be inconsistent with the earlier pronouncement
of Esguerra and the later holding of Palma-Fernandez. The question, however, is: Did Arroyo, in fact, extend the effects of
reorganization under the revolutionary Charter to the era of the new Constitution?
There are a few points about Arroyo that have to be explained. First, the opinion expressed therein that "[b]y virtue of
said provision the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the
ratification of this constitution and career civil service employees may be separated from the service without cause as a
result of such reorganization" 74 is in the nature of an obiter dictum. We dismissed Jose's petition 75 primarily because it
was "clearly premature, speculative, and purely anticipatory, based merely on newspaper reports which do not show any
direct or threatened injury," 76 it appearing that the reorganization of the Bureau of Customs had not been, then, set in
motion. Jose therefore had no cause for complaint, which was enough basis to dismiss the petition. The remark anent
separation "without cause" was therefore not necessary for the disposition of the case. In Morales v. Parades,77 it was
held that an obiter dictum "lacks the force of an adjudication and should not ordinarily be regarded as such."78
Secondly, Arroyo is an unsigned resolution while Palma Fernandez is a full-blown decision, although both are en
banc cases. While a resolution of the Court is no less forceful than a decision, the latter has a special weight.
Thirdly, Palma-Fernandez v. De la Paz comes as a later doctrine. (Jose v. Arroyo was promulgated on August 11, 1987
while Palma-Fernandez was decided on August 31, 1987.) It is well-established that a later judgment supersedes a prior
one in case of an inconsistency.
As we have suggested, the transitory provisions of the 1987 Constitution allude to two stages of the reorganization, the
first stage being the reorganization under Proclamation No. 3 — which had already been consummated — the second
stage being that adverted to in the transitory provisions themselves — which is underway. Hence, when we spoke,
in Arroyo, of reorganization after the effectivity of the new Constitution, we referred to the second stage of the
reorganization. Accordingly, we cannot be said to have carried over reorganization under the Freedom Constitution to its
1987 counterpart.
Finally, Arroyo is not necessarily incompatible with Palma-Fernandez (or Esguerra).
As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as stern as reorganization under
the prior Charter. Whereas the latter, sans the President's subsequently imposed constraints, envisioned a purgation, the
same cannot be said of the reorganization inferred under the new Constitution because, precisely, the new Constitution
seeks to usher in a democratic regime. But even if we concede ex gratia argumenti that Section 16 is an exception to due
process and no-removal-"except for cause provided by law" principles enshrined in the very same 1987
Constitution, 79 which may possibly justify removals "not for cause," there is no contradiction in terms here because, while
the former Constitution left the axe to fall where it might, the present organic act requires that removals "not for cause"
must be as a result of reorganization. As we observed, the Constitution does not provide for "automatic" vacancies. It
must also pass the test of good faith — a test not obviously required under the revolutionary government formerly
prevailing, but a test well-established in democratic societies and in this government under a democratic Charter.
When, therefore, Arroyo permitted a reorganization under Executive Order No. 127 after the ratification of the 1987
Constitution, Arroyo permitted a reorganization provided that it is done in good faith. Otherwise, security of tenure would
be an insuperable implement. 80
Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. 81 As a general
rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more
efficient. In that event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases
to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is
nothing else but a separation or removal, is done for political reasons or purposely to defeat sty of tenure, or otherwise
not in good faith, no valid "abolition' takes place and whatever "abolition' is done, is void ab initio. There is an invalid
"abolition" as where there is merely a change of nomenclature of positions, 82 or where claims of economy are belied by
the existence of ample funds. 83
It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are not, as a consequence,
imposing a "cause" for restructuring. Retrenchment in the course of a reorganization in good faith is still removal "not for
cause," if by "cause" we refer to "grounds" or conditions that call for disciplinary action.**
Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case.
However, under Republic Act No. 6656, we are told:
SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and
hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or
rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the
service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following
circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise
to a claim for reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in the
number of positions in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished
and another performing substantially the same functions is created; (c) Where incumbents are replaced by those less
qualified in terms of status of appointment, performance and merit; (d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified offices perform substantially the same functions as the original
offices; (e) Where the removal violates the order of separation provided in Section 3 hereof. 84
It is in light hereof that we take up questions about Commissioner Mison's good faith, or lack of it.
Reorganization of the Bureau of Customs,
Lack of Good Faith in. —
The Court finds that after February 2, 1987 no perceptible restructuring of the Customs hierarchy — except for the change
of personnel — has occurred, which would have justified (an things being equal) the contested dismisses. The contention
that the staffing pattern at the Bureau (which would have furnished a justification for a personnel movement) is the same
s pattern prescribed by Section 34 of Executive Order No. 127 already prevailing when Commissioner Mison took over the
Customs helm, has not been successfully contradicted 85 There is no showing that legitimate structural changes have been
made — or a reorganization actually undertaken, for that matter — at the Bureau since Commissioner Mison assumed
office, which would have validly prompted him to hire and fire employees. There can therefore be no actual reorganization
to speak of, in the sense, say, of reduction of personnel, consolidation of offices, or abolition thereof by reason of economy
or redundancy of functions, but a revamp of personnel pure and simple.
The records indeed show that Commissioner Mison separated about 394 Customs personnel but replaced them with 522
as of August 18, 1988. 86 This betrays a clear intent to "pack" the Bureau of Customs. He did so, furthermore, in defiance
of the President's directive to halt further layoffs as a consequence of reorganization. 87Finally, he was aware that layoffs
should observe the procedure laid down by Executive Order No. 17.
We are not, of course, striking down Executive Order No. 127 for repugnancy to the Constitution. While the act is valid,
still and all, the means with which it was implemented is not. 88
Executive Order No. 127, Specific Case of. —
With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59 thereof, "[t]hose incumbents
whose positions are not included therein or who are not reappointed shall be deemed separated from the service." He
submits that because the 394 removed personnel have not been "reappointed," they are considered terminated. To begin
with, the Commissioner's appointing power is subject to the provisions of Executive Order No. 39. Under Executive Order
No. 39, the Commissioner of Customs may "appoint all Bureau personnel, except those appointed by the President." 89
Accordingly, with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner Mison could not have
validly terminated them, they being Presidential appointees.
Secondly, and as we have asserted, Section 59 has been rendered inoperative according to our holding in Palma-
Fernandez.
That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere holdover status cannot mean
that the positions held by them had become vacant. In Palma-Fernandez, we said in no uncertain terms:
The argument that, on the basis of this provision, petitioner's term of office ended on 30 January 1987 and that she
continued in the performance of her duties merely in a hold over capacity and could be transferred to another position
without violating any of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived
to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced
to February 2, 1987 when the 1987 Constitution became effective (De Leon. et al., vs. Hon. Benjamin B. Esquerra, et. al.,
G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern. 90
It should be seen, finally, that we are not barring Commissioner Mison from carrying out a reorganization under the
transitory provisions of the 1987 Constitution. But such a reorganization should be subject to the criterion of good faith.
Resume. —
In resume, we restate as follows:
1. The President could have validly removed government employees, elected or appointed, without cause but only before
the effectivity of the 1987 Constitution on February 2, 1987 (De Leon v. Esguerra, supra; Palma-Fernandez vs. De la
Paz, supra); in this connection, Section 59 (on non-reappointment of incumbents) of Executive Order No. 127 cannot be a
basis for termination;
2. In such a case, dismissed employees shall be paid separation and retirement benefits or upon their option be given
reemployment opportunities (CONST. [1987], art. XVIII, sec. 16; Rep. Act No. 6656, sec. 9);
3. From February 2, 1987, the State does not lose the right to reorganize the Government resulting in the separation of
career civil service employees [CONST. (1987), supra] provided, that such a reorganization is made in good faith. (Rep. Act
No. 6656, supra.)
G.R. No. 83737
This disposition also resolves G.R. No. 83737. As we have indicated, G.R. No. 83737 is a challenge to the validity of Republic
Act No. 6656. In brief, it is argued that the Act, insofar as it strengthens security of tenure 91 and as far as it provides for a
retroactive effect, 92 runs counter to the transitory provisions of the new Constitution on removals not for cause.
It can be seen that the Act, insofar as it provides for reinstatament of employees separated without "a valid cause and
after due notice and hearing" 93 is not contrary to the transitory provisions of the new Constitution. The Court reiterates
that although the Charter's transitory provisions mention separations "not for cause," separations thereunder must
nevertheless be on account of a valid reorganization and which do not come about automatically. Otherwise, security of
tenure may be invoked. Moreover, it can be seen that the statute itself recognizes removals without cause. However, it
also acknowledges the possibility of the leadership using the artifice of reorganization to frustrate security of tenure. For
this reason, it has installed safeguards. There is nothing unconstitutional about the Act.
We recognize the injury Commissioner Mison's replacements would sustain. We also commisserate with them. But our
concern is the greater wrong inflicted on the dismissed employees on account of their regal separation from the civil
service.
WHEREFORE, THE RESOLUTIONS OF THE CIVIL SERVICE COMMISSION, DATED JUNE 30, 1988, SEPTEMBER 20, 1988,
NOVEMBER 16, 1988, INVOLVED IN G.R. NOS. 85310, 85335, AND 86241, AND MAY 8, 1989, INVOLVED IN G.R. NO. 85310,
ARE AFFIRMED.
THE PETITIONS IN G.R. NOS. 81954, 81967, 82023, AND 85335 ARE GRANTED. THE PETITIONS IN G.R. NOS. 83737, 85310
AND 86241 ARE DISMISSED.
THE COMMISSIONER OF CUSTOMS IS ORDERED TO REINSTATE THE EMPLOYEES SEPARATED AS A RESULT OF HIS NOTICES
DATED JANUARY 26, 1988.
THE EMPLOYEES WHOM COMMISSIONER MISON MAY HAVE APPOINTED AS REPLACEMENTS ARE ORDERED TO VACATE
THEIR POSTS SUBJECT TO THE PAYMENT OF WHATEVER BENEFITS THAT MAY BE PROVIDED BY LAW.
NO COSTS.
IT IS SO ORDERED.
Gutierrez, Jr., Paras, Gancayco, Bidin, Cortes, Griñ;o-Aquino and Medialdea, JJ., concur.
Padilla, J., took no part.

Separate Opinions
CRUZ, J., concurring:
I concur with the majority view so ably presented by Mr. Justice Abraham F. Sarmiento. While additional comments may
seem superfluous in view of the exhaustiveness of his ponencia, I nevertheless offer the following brief observations for
whatever they may be worth.
Emphasizing Article XVII, Section 16 of the Constitution, the dissenting opinion considers the ongoing government
reorganization valid because it is merely a continuation of the reorganization begun during the transition period. The
reason for this conclusion is the phrase "and the reorganization following the ratification of the Constitution," that is to
say, after February 2, 1987, appearing in the said provision. The consequence (and I hope I have not misread it) is that the
present reorganization may still be undertaken with the same "absoluteness" that was allowed the revolutionary
reorganization although the Freedom Constitution is no longer in force.
Reorganization of the government may be required by the legislature even independently of specific constitutional
authorization, as in the case, for example, of R.A. No. 51 and B.P. No. 129. Being revolutionary in nature, the reorganization
decreed by Article III of the Freedom Constitution was unlimited as to its method except only as it was later restricted by
President Aquino herself through various issuances, particularly E.O. No. 17. But this reorganization, for all its permitted
summariness, was not indefinite. Under Section 3 of the said Article III, it was allowed only up to February 29,1987 (which
we advanced to February 2, 1987, when the new Constitution became effective).
The clear implication is that any government reorganization that may be undertaken thereafter must be authorized by the
legislature only and may not be allowed the special liberties and protection enjoyed by the revolutionary reorganization.
Otherwise, there would have been no necessity at all for the time limitation expressly prescribed by the Freedom
Constitution.
I cannot accept the view that Section 16 is an authorization for the open-ended reorganization of the government
"following the ratification of the Constitution." I read the provision as merely conferring benefits — deservedly or not —
on persons separated from the government as a result of the reorganization of the government, whether undertaken
during the transition period or as a result of a law passed thereafter. What the grants is privileges to the retirees, not
power to the provision government. It is axiomatic that grants of power are not lightly inferred, especially if these impinge
on individual rights, and I do not see why we should depart from this rule.
To hold that the present reorganization is a continuation of the one begun during the transition period is to recognize the
theory of the public respondent that all officers and employees not separated earlier remain in a hold-over capacity only
and so may be replaced at any time even without cause. That is a dangerous proposition that threatens the security and
stability of every civil servant in the executive department. What is worse is that this situation may continue indefinitely as
the claimed "progressive" reorganization has no limitation as to time.
Removal imports the forcible separation of the incumbent before the expiration of his term and can be done only for
cause as provided by law. Contrary to common belief, a reorganization does not result in removal but in a different mode
of terminating official relations known as abolition of the office (and the security of tenure attached thereto.) The
erstwhile holder of the abolished office cannot claim he has been removed without cause in violation of his constitutional
security of tenure. The reason is that the right itself has disappeared with the abolished office as an accessory following
the principal. (Ocampo v. Sec. of Justice, 51 O.G. 147; De la Llana v. Alba, 112 SCRA 294; Manalang v. Quitoriano, 94 Phil.
903.)
This notwithstanding, the power to reorganize is not unlimited. It is essential that it be based on a valid purpose, such as
the promotion of efficiency and economy in the government through a pruning of offices or the streamlining of their
functions. (Cervantes v. Auditor-General, 91 Phil. 359.) Normally, a reorganization cannot be validly undertaken as a means
of purging the undesirables for this would be a removal in disguise undertaken en masse to circumvent the constitutional
requirement of legal cause. (Eradication of graft and corruption was one of the expressed purposes of the revolutionary
organization, but this was authorized by the Freedom Constitution itself.) In short, a reorganization, to be valid, must be
done in good faith. (Urgelio v. Osmena, 9 SCRA 317; Cuneta v. Court of Appeals, 1 SCRA 663; Carino v. ACCFA, 18 SCRA
183.)
A mere recitation — no matter how lengthy — of the directives, guidelines, memoranda, etc. issued by the government
and the action purportedly taken thereunder does not by itself prove good faith. We know only too well that these
instructions, for all their noble and sterile purposes, are rarely followed in their actual implementation. The reality in this
case, as the majority opinion has pointed out and as clearly established in the hearing we held, is that the supposed
reorganization was undertaken with an eye not to achieving the avowed objectives but to accommodating new appointees
at the expense of the dislodged petitioners. That was also the finding of the Civil Service Commission, to which we must
accord a becoming respect as the constitutional office charged with the protection of the civil service from the evils of the
spoils system.
The present administration deserves full support in its desire to improve the civil service, but this objective must be
pursued in a manner consistent with the Constitution. This praiseworthy purpose cannot be accomplished by an
indiscriminate reorganization that will sweep in its wake the innocent along with the redundant and inept, for the benefit
of the current favorites.
MELENCIO-HERRERA, J., dissenting:
The historical underpinnings of Government efforts at reorganization hark back to the people power phenomenon of 22-
24 February 1986, and Proclamation No. 1 of President Corazon C. Aquino, issued on 25 February 1986, stating in no
uncertain terms that "the people expect a reorganization of government." In its wake followed Executive Order No. 5,
issued on 12 March 1986, "Creating a Presidential Commission on Government Reorganization," with the following
relevant provisions:
WHEREAS, there is need to effect the necessary and proper changes in the organizational and functional structures of the
national and local governments, its agencies and instrumentalities, including government-owned and controlled
corporations and their subsidiaries, in order to promote economy, efficiency and effectiveness in the delivery of public
services
xxx xxx xxx
Section 2. The functional jurisdiction of the PCGR shall encompass, as necessary, the reorganization of the national and
local governments, its agencies and instrumentalities including government-owned or controlled corporations and their
subsidiaries.
xxx xxx xxx (Emphasis supplied)
Succeeding it was Proclamation No. 3, dated 25 March 1986, also known as the Freedom Constitution, declaring, in part,
in its Preamble as follows:
WHEREAS, the direct mandate of the people as manifested by their extraordinary action demands the complete
reorganization of the government, ... (Emphasis supplied)
and pertinently providing:
ARTICLE II
Section I
xxx xxx xxx
The President shall give priority to measures to achieve the mandate of the people to:
(a) Completely reorganize the government and eradicate unjust and oppressive structures, and all iniquitous vestiges of
the previous regime;" (Emphasis supplied)
xxx xxx xxx
ARTICLE III — GOVERNMENT REORGANIZATION
Section 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their
successors, if such is made within a period of one year from February 25, 1986.
Section 3. Any public office or employee separated from the service as a result of the reorganization effected under this
Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder.
(Emphasis ours)
On 28 May 1986, Executive Order No. 17 was issued "Prescribing Rules and Regulations for the Implementation of Section
2, Article III of the Freedom Constitution' providing, inter alia, as follows:
Section 1. In the course of implementing Article III, Section 2 of the Freedom Constitution, the Head of each Ministry shall
see to it that the separation or replacement of officers and employees is made only for justifiable reasons, to prevent
indiscriminate dismissal, of personnel in the career civil service whose qualifications and performance meet the standards
of public service of the New Government.
xxx xxx xxx
The Ministry concerned shall adopt its own rules and procedures for the review and assessment of its own personnel,
including the identification of sensitive positions which require more rigid assessment of the incumbents, and shall
complete such review/assessment as expeditiously as possible but not later than February 24, 1987 to prevent undue
demoralization in the public service.
Section 2. The Ministry Head concerned, on the basis of such review and assessment shall determine who shall be
separated from the service. Thereafter, he shall issue to the official or employee concerned a notice of separation which
shall indicate therein the reason/s or ground /s for such separation and the fact that the separated official or employee
has the right to file a petition for reconsideration pursuant to this Order. Separation from the service shall be effective
upon receipt of such notice, either personally by the official or employee concerned or on his behalf by a person of
sufficient discretion.
Section 3. The following shall be the grounds for separation/ replacement of personnel:
1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;
2. Existence of a probable cause for violation of the Anti-Graft and Corrupt Practice Act as determined by the Ministry
Head concerned;
3. Gross incompetence or inefficiency in the discharge of functions;
4. Misuse of Public office for partisan political purposes;
5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement
is in the interest of the service.
Section 11. This Executive Order shall not apply to elective officials or those designated to replace them, presidential
appointees, casual and contractual employees, or officials and employees removed pursuant to disciplinary proceedings
under the Civil Service Law and rules, and to those laid off as a result of the reorganization undertaken pursuant to
Executive Order No. 5. (Emphasis supplied)
On 6 August 1986, Executive Order No. 39 was issued by the President "Enlarging the Powers and Functions of the
Commissioner of Customs", as follows:
xxx xxx xxx
SECTION 1. In addition to the powers and functions of the Commissioner of Customs, he is hereby authorized, subject to
the Civil Service Law and its implementing rules and regulations:
a) To appoint all Bureau personnel, except those appointed by the President;
b) To discipline, suspend, dismiss or otherwise penalize erring Bureau officers and employees;
c) To act on all matters pertaining to promotion, transfer, detail, reassignment, reinstatement, reemployment and other
personnel action, involving officers and employees of the Bureau of Customs.
xxx xxx xxx
On 30 January 1987, Executive Order No. 127 was issued "Reorganizing the Ministry of Finance." Similar Orders,
approximately thirteen (13) in all, 1 were issued in respect of the other executive departments. The relevant provisions
relative to the Bureau of Customs read:
RECALLING that the reorganization of the government is mandated expressly in Article II, Section l(a) and Article III of the
Freedom Constitution;
HAVING IN MIND that pursuant to Executive Order No. 5 (1986), it is directed that the necessary and proper changes in
the organizational and functional structures of the government, its agencies and instrumentalities, be effected in order to
promote efficiency and effectiveness in the delivery of public services;
BELIEVING that it is necessary to reorganize the Ministry of Finance to make it more capable and responsive,
organizationally and functionally, in its primary mandate of judiciously generating and efficiently managing the financial
resources of the Government, its subdivisions and instrumentalities in order to attain the socio-economic objectives of
the national development programs.
xxx xxx xxx
SEC. 2. Reorganization. — The Ministry of Finance, hereinafter referred to as Ministry, is hereby reorganized, structurally
and functionally, in accordance with the provisions of this Executive Order.
SEC. 33. Bureau of Customs.
... Executive Order No. 39 dated 6 August 1986 which grants autonomy to the Commissioner of Customs in matters of
appointment and discipline of Customs personnel shall remain in effect.
SEC. 55. Abolition of Units Integral to Ministry. — All units not included in the structural organization as herein provided
and all positions thereof are hereby deemed abolished. ... Their personnel shall be entitled to the benefits provided in the
second paragraph of Section 59 hereof.
SEC. 59. New Structure and Pattern. — Upon approval of this Executive Order, the officers and employees of the Ministry
shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding
salaries and benefits unless in the meantime they are separated from government service pursuant to executive Order No.
17 (1986) or article III of the Freedom Constitution.
The new position structure and staffing pattern of the ministry shall be approved and prescribed by the Minister within
one hundred twenty (120) days from the approval of this Executive Order and the authorized positions created hereunder
shall be filled with regular appointments by him or by the President, as the case may be. Those incumbents whose positions
are not included therein or who are not reappointed shall be deemed separated from the service. Those separated from
the service shall receive the retirement benefits to which they may be entitled under the existing laws, rules and
regulations. Otherwise, they shall be paid the equivalent of one month basic salary for every year of service or the
equivalent nearest fraction thereof favorable to them on the basis of highest salary received, but in no case shall such
payment exceed the equivalent of 12 months salary.
No court or administrative body shall issue any writ or preliminary junction or restraining order to enjoin the
separation/replacement of any officer or employee affected under this Executive Order.
Section 67 — All laws, ordinances, rules, regulations and other issuances or parts thereof, which are inconsistent with this
Executive Order, are hereby repealed or modified accordingly.
xxx xxx xxx (Emphasis ours)
On 2 February 1987, the present Constitution took effect (De Leon, et al., vs. Esguerra, G.R. No. 78059, August 31, 1987153
SCRA 602). Reorganization in the Government service pursuant to Proclamation No. 3, supra, was provided for in its
Section 16, Article XVIII entitled Transitory Provisions, reading:
Section 16. Career civil service employees separated from the service not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution
shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of
general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be
considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including
government owned or controlled corporations and their subsidiaries. Ms provision also applies to career officers whose
resignation, tendered in line with the existing policy, has been accepted.
On 24 May 1987 the then Commissioner of Customs, Alexander A. Padilla, transmitted to the Department of Finance for
approval the proposed "position structure and staffing pattern" of the Bureau of Customs. Said Department gave its
imprimatur. Thereafter, the staffing pattern was transmitted to and approved by the Department of Budget and
Management on 7 September 1987 for implementation. Under the old staffing pattern, there were 7,302 positions while
under the new staffing pattern, there are 6,530 positions CSC Resolution in CSC Case No. 1, dated 20 September 1988, pp.
3-4).
On 22 September 1987, Salvador M. Mison assumed office as Commissioner of Customs.
On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the Implementation of Reorganization Executive
Orders" was issued reading, insofar as revelant to these cases, as follows:
It is my concern that ongoing process of government reorganization be conducted in a manner that is expeditious, as well
as sensitive to the dislocating consequences arising from specific personnel decisions.
The entire process of reorganization, and in particular the process of separation from service, must be carried out in the
most humane manner possible.
For this purpose, the following guidelines shall be strictly followed:
1. By October 21, 1987, all employees covered by the Executive Orders for each agency on reorganization shall be:
a. informed of their reappointment or
b. offered another position in the same department/ agency or
c. informed of their termination.
2. In the event of an offer for a lower position, there will be no reduction in the salary.
xxx xxx xxx
4. Each department/agency shall constitute a Reorganization Appeals Board at the central office, on or before October 21,
1987, to review or reconsider appeals or complaints relative to reorganization. All cases submitted to the Boards shall be
resolved subject to the following guidelines:
a. publication or posting of the appeal procedure promulgated by the Department Secretary;
b. adherence to due process;
c. disposition within 30 days from submission of the case;
d written notification of the action taken and the grounds thereof.
Action by the Appeals Review Board does not preclude appeal to the Civil Service Commission.
5. Placement in the new staffing pattern of incumbent personnel shall be completed prior to the hiring of new personnel,
if any.
xxx xxx xxx (Emphasis ours)
On 25 November 1987 Commissioner Mison wrote the President requesting a grace period until the end of February 1988
within which to completely undertake the reorganization of the Bureau of Customs pursuant to Executive Order No. 127
dated 30 January 1987. Said request was granted in a letter-reply by Executive Secretary Catalino Macaraig, Jr., dated 22
December 1987.
On 6 January 1988, within the extended period requested, Bureau of Customs Memorandum "Re: Guidelines on the
Implementation of Reorganization Executive Orders" was issued in the same tenor as the Malacanang Memorandum of 2
October 1987, providing inter alia:
To effectively implement the reorganization at the Bureau of Customs, particularly in the selection and placement of
personnel, and insure that the best qualified and most competent personnel in the career service are retained, the
following guidelines are hereby prescribed for the guidance of all concerned
1. By February 28, 1988 all employees covered by Executive Order No. 127 and the grace period extended to the Bureau
of Customs by the President of the Philippines on reorganization shall be:
a. informed of their reappointment, or
b. offered another position in the same department or agency or
c. informed of their termination.
2. In the event of termination, the employee shall:
a. be included in a consolidated list compiled by the Civil Service Commission. All departments who are recruiting shall
give preference to the employees in the list; and
b. continue to receive salary and benefits until February 28, 1988, and
c. be guaranteed the release of separation benefits within 45 days from termination and in no case later than June 15,
1988.
xxx xxx xxx (Emphasis supplied)
It is to be noted that paragraph 1 above and its sub-sections reproduced verbatim the Malacanang Guidelines of 2 October
1987 in that the employees concerned were merely to be informed of their termination.
On 28 January 1988 Commissioner Mison addressed identical letters of termination to Bureau of Customs officers and
employees effective on 28 February 1988.
As of 18 August 1988, Commissioner Mison appointed five hundred twenty-two (522) officials and employees of the
Bureau of Customs (CSC Resolution in CSC Case No. 1, dated 20 September 1988, p. 6). In fact, in a letter dated 27 January
1988, Commissioner Mison recommended Jose M. Balde for appointment to President Aquino as one of three (3) Deputy
Commissioners under Executive Order No. 127.
In the interim, during the pendency of these Petitions, Republic Act No. 6656, entitled "An Act to Protect the Security of
Tenure of Civil Service Officers and Employees in the Implementation of Government Reorganization" was passed by
Congress on 9 June 1988. The President signed it into law on 10 June 1988 and the statute took effect on 29 June 1988.
On 20 June 1988 Motions were filed, in these cases pending before this Court, invoking the provisions of Republic Act No.
6656. The relevant provisions thereof read:
SECTION 1. It is hereby declared the policy of the State to protect the security of tenure of civil service officers and
employees in the reorganization of the various agencies of the National government ....
SECTION 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and
hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or
rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the
service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following
circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise
to a claim for reinstatement or reappointment by an aggrieved party:
(a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency
concerned;
(b) Where an office is abolished and another performing substantially the same functions is created;
(c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit;
(d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform
substantially the same functions as the original offices;
(e) Where the removal violates the order of separation provided in Section 3 hereof.
xxx xxx xxx
SECTION 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation
of the provisions of this Act, shall be ordered reinstated or reappointed as the case may be without loss of seniority and
shall be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees,
including casuals and temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto,
be paid the appropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from
the date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as the case
may be: Provided, That application for clearance has been filed and no action thereon has been made by the corresponding
department or agency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount
equivalent to one (1) month salary for every year of service. Such separation pay and retirement benefits shall have priority
of payment out of the savings of the department or agency concerned.
xxx xxx xxx
SECTION 11. The executive branch of the government shall implement reorganization schemes within a specified period
of time authorized by law.
In the case of the 1987 reorganization of the executive branch, all departments and agencies which are authorized by
executive orders promulgated by the President to reorganize shall have ninety (90) days from the approval of this Act
within which to implement their respective reorganization plans in accordance with the provisions of this Act.
xxx xxx xxx
SECTION 13. All laws, rules and regulations or parts thereof, inconsistent with the provisions of this Act are hereby
repealed or modified accordingly. The rights and benefits under this Act shall be retroactive as of June 30, 1987.
xxx xxx xxx (Emphasis ours)
Given the foregoing statutory backdrop, the issues can now be addressed.
Scope of Section 16, Art. XVIII, 1987 Constitution
Crucial to the present controversy is the construction to be given to the abovementioned Constitutional provision
(SECTION 16, for brevity), which speaks of.
Career civil service employees separated from the service not for cause
but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986
and the reorganization following the ratification of this Constitution ... (paragraphing supplied).
To our minds, SECTION 16 clearly recognizes (1) the reorganization authorized by Proclamation No. 3; (2) that such
separation is NOT FOR CAUSE but as a result of the reorganization pursuant to said Proclamation; and (3) that the
reorganization pursuant to Proclamation No. 3 may be continued even after the ratification of the 1987 Constitution
during the transition period.
Separation NOT FOR CAUSE
The canon for the removal or suspension of a civil service officer or employee is that it must be FOR CAUSE. That means a
guarantee of both procedural and substantive due process. Basically, procedural due process would require that
suspension or dismissal come only after notice and hearing. Substantive due process would require that suspension or
dismissal be 'for cause'." Bernas The Constitution of the Republic of the Philippines: A Commentary, Vol. II, First Edition,
1988, p. 334)
The guarantee of removal FOR CAUSE is enshrined in Article IX-B, Section 2(3) of the 1987 Constitution, which states that
'No officer or employee of the civil service shall be removed or suspended except FOR CAUSE provided by law."
There can be no question then as to the meaning of the phrase FOR CAUSE. It simply means the observance of both
procedural and substantive due process in cases of removal of officers or employees of the civil service. When SECTION
16 speaks, therefore, of separation from the service NOT FOR CAUSE, it can only mean the diametrical opposite. The
constitutional intent to exempt the separation of civil service employees pursuant to Proclamation No. 3 from the
operation of Article IX-B, Section 2(3), becomes readily apparent. A distinction is explicitly made between removal FOR
CAUSE, which as aforestated, requires due process, and dismissal NOT FOR CAUSE, which implies that the latter is not
bound by the "fetters' of due process.
It is obviously for that reason that Section 16 grants separation pay and retirement benefits to those separated NOT FOR
CAUSE but as a result of the reorganization precisely to soften the impact of the non-observance of due process. "What is
envisioned in Section 16 is not a remedy for arbitrary removal of civil servants enjoying security of tenure but some form
of relief for members of the career civil service who may have been or may be legally but involuntarily 'reorganized out'
of the service or may have voluntarily resigned pursuant to the reorganization policy" (ibid., p. 615).
Reorganization Pursuant to Proclamation No. 3 to Continue Transitorily Even After Ratification
By its very context, SECTION 16 envisages the continuance of the reorganization pursuant to Proclamation No. 3 even
after ratification of the Constitution and during the transition period. The two [2] stages contemplated, namely, (1) the
stage before and (2) after ratification, refer to the same nature of separation "NOT FOR CAUSE but as a result of
Proclamation No. 3." No valid reason has been advanced for a different treatment after ratification as the majority opines
i.e., that separation NOT FOR CAUSE is allowed before ratification but that, thereafter, separation can only be FOR CAUSE.
A fundamental principle of Constitutional construction is to assure the realization of the purpose of the framers of the
organic law and of the people who adopted it.
That the reorganization commenced pursuant to Proclamation No. 3 was envisioned to continue even after the ratification
of the 1987 Constitution, at least transitorily, is evident from the intent of its authors discoverable from their deliberations
held on 3 October 1986 and evincing their awareness that such reorganization had not as yet been fully implemented.
Thus:
Mr. PADILLA. Mr. Presiding Officer, on lines 2 to 5 is the clause 'pursuant to the provisions of Article III of Proclamation
No. 3, issued on March 25, 1986, and the reorganization.' Are those words necessary? Can we not just say 'result of the
reorganization following the ratification of this Constitution'? In other words, must we make specific reference to
Proclamation No. 3?
Mr. SUAREZ. Yes. I think the committee feels that is necessary, because in truth there has been a reorganization by virtue
of Proclamation No. 3. In other words, there are two stages of reorganization covered by this section.
Mr. PADILIA. I understand there is a reorganization committee headed by a minister?
Mr. SUAREZ. Philippine Commission on Government Reorganization.
Mr. PADILLA. But whether that has already been implemented or not, I do not believe in it. There has been a plan, but I
do not think it has been implemented. If we want to include any previous reorganization after or before the ratification,
why do we not just say reorganization before or after the ratification' to simplify the provision and eliminate two-and-a-
half sentences that may not be necessary? And as a result of the reorganization, if the committee feels there has been
reorganization before ratification and there be reorganization after, we just say 'before or after the ratification of this
Constitution.
Mr. SUAREZ. Something like this as a result of the reorganization effected before or after the ratification of the
Constitution on the understanding, with the statement into the records, that this would be applicable to those reorganized
out pursuant to the Freedom Constitution also.
Mr. PADILLA. That is understood if there has been a reorganization before the ratification or a reorganization after the
ratification." (RECORDS of the Constitutional Commission, Vol. 5, p. 416) (Emphasis provided)
It should also be recalled that the deadline for the reorganization under Proclamation No. 3 was "one year from February
25, 1986" (Article III, Section 2), or up to February 24, 1987. Executive Order No. 17 itself provided that the
review/assessment of personnel be completed "not later than February 24, 1987." But, confronted with the reality of the
ratification of the Constitution before that deadline without reorganization having been completed, there was need for a
provision allowing for its continuance even after ratification and until completed. It was also to beat that deadline that EO
127 and similar issuances, providing for the reorganization of departments of government, were all dated 30 January 1987
or prior to the plebiscite held on 2 February 1987. The intent to continue and complete the reorganizations started is self-
evident in SECTION 16.
In Jose vs. Arroyo, et al. (G.R. No. 78435, August 11, 1987), which was a Petition for certiorari and Prohibition to enjoin the
implementation of Executive Order No. 127, we recognized that the reorganization pursuant to Proclamation No. 3 as
mandated by SECTION 16, was to continue even after ratification when we stated:
The contention of petitioner that EO No. 127 is violative of the provision of the 1987 Constitution guaranteeing career civil
service employees security of tenure overlooks the provision of Section 16, Art. XVIII (Transitory Provisions) which
explicitly authorizes the removal of career civil service employees not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of the
Constitution. By virtue of said provision, the reorganization of the Bureau of Customs under Executive Order No. 127 may
continue even after the ratification of this Constitution and career civil service employees may be separated from the
service without cause as a result of such reorganization. (Emphasis ours)
With due respect to the majority, we disagree with its conclusion that the foregoing pronouncement is mere "obiter
dictum."
An obiter dictum or dictum has been defined as a remark or opinion uttered, by the way. It is a statement of the court
concerning a question which was not directly before it (In re Hess 23 A. 2d. 298, 301, 20 N.J. Misc. 12).lâwphî1.ñèt It is
language unnecessary to a decision, (a) ruling on an issue not raised, or (an) opinion of a judge which does not embody
the resolution or determination of the court, and is made without argument or full consideration of the point (Lawson v.
US, 176 F2d 49, 51, 85 U.S. App. D.C. 167). It is an expression of opinion by the court or judge on a collateral question not
directly involved, (Crescent Ring Co. v. Travelers Indemnity Co. 132 A. 106, 107, 102 N.J. Law 85) or not necessary for the
decision Du Bell v. Union Central Life Ins. Co., 29, So. 2d 709, 712; 211 La. 167).
In the case at bar, however, directly involved and squarely before the Court was the issue of whether EO 127 violates
Section 2(3) of Article IX-B of the 1987 Constitution against removal of civil service employees except for cause." Petitioner
batted for the affirmative of the proposition, while respondents contended that "removal of civil service employees
without cause is allowed not only under the Provisional Constitution but also under the 1987 Constitution if the same is
made pursuant to a reorganization after the ratification of the Constitution."
It may be that the Court dismissed that Petition for being premature, speculative and purely anticipatory" inasmuch as
petitioner therein had "not received any communication terminating or threatening to terminate his services." But that
was only one consideration. The Court still proceeded to decide all the issues adversatively contested by the parties,
namely "1) that the expiration date of February 25, 1 987 fixed by Section 2 of Proclamation No. 3 on which said Executive
order is based had already lapsed; 2) that the Executive Order has not been published in the Official Gazette as required
by Article 2 of the Civil Code and Section 1 1 of the Revised Administrative Code; and 3) that its enforcement violates
Section 2(3) of Article IX B of the 1987 Constitution against removal of civil service employees except for cause."
The ruling of the Court, therefore, on the Constitutional issues presented, particularly, the lapse of the period mandated
by Proclamation No. 3, and the validity of EO 127, cannot be said to be mere "obiter." They were ultimate issues directly
before the Court, expressly decided in the course of the consideration of the case, so that any resolution thereon must be
considered as authoritative precedent, and not a mere dictum (See Valli v. US, 94 F2d 687 certiorari granted 58 S. Ct. 760,
303 U.S. 82 L. Ed. 1092; See also Weedin v. Tayokichi Yamada 4 F. (2d) 455). Such resolution would not lose its value as a
precedent just because the disposition of the case was also made on some other ground.
.....And this rule applies as to all pertinent questions although only incidentally involved, which are presented and decided
in the regular course of the consideration of the case, and lead up to the final conclusion (Northern Pac. Ry Co. v. Baker,
D.C. Wash., 3 F. Suppl. 1; See also Wisconsin Power and Light Co. v. City of Beloit 254 NW 119; Chase v. American Cartage
Co. 186 N.W. 598; City of Detroit, et al. v. Public Utilities Comm. 286 N.W. 368). Accordingly, a point expressly decided
does not lose its value as a precedent because the disposition of the case is made on some other ground. (Wagner v. Com
Products Refining Co. D.C. N.J. 28 F 2d 617) Where a case presents two or more points, any one of which is sufficient to
determine the ultimate issue, but the court actually decides all such points, the case is an authoritative precedent as to
every point decided, and none of such points can be regarded as having merely the status of a dictum (See U.S. Title
Insurance and Trust Co., Cal., 44 S. Ct. 621, 265 U.S. 472, 68 L. Ed. 1110; Van Dyke v. Parker 83 F. (2d) 35) and one point
should not be denied authority merely because another point was more dwelt on and more fully argued and considered.
(Richmond Screw Anchor Co. v. U.S. 48 S. Ct. 194, 275 U.S. 331, 72 L. Ed. 303)"
It is true that in Palma-Fernandez vs. de la Paz (G.R. No. 78946, April 15, 1986, 160 SCRA 751), we had stated:
The argument that, on the basis of this provision (Section 26 of Executive Order No. 119, or the 'Reorganization Act of the
Ministry of Health'), petitioner's term of office ended on 30 January 1987 and that she continued in the performance of
her duties merely in a hold-over capacity and could be transferred to another position without violating any of her legal
rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and
would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the
1987 Constitution became effective (De Leon, et al., vs. Hon. Esguerra, et al., G.R. No. 78059, 31 August 1987, 153 SCRA
602). After the d date the provisions of the latter on security of tenure govern.
The factual situation in the two cases, however, radically differ. In the cited case, Dra. Palma-Fernandez, the petitioner,
had already been extended a permanent appointment as Assistant Director for Professional Services of the East Avenue
Medical Center but was still being transferred by the Medical Center Chief to the Research Office against her consent.
Separation from the service as a result of reorganization was not involved. The question then arose as to whether the
latter official had the authority to transfer or whether the power to appoint and remove subordinate officers and
employees was lodged in the Secretary of Health. Related to that issue was the vital one of whether or not her transfer,
effected on 29 May 1987, was tantamount to a removal without cause. Significant, too, is the fact that the transfer was
basically made "in the interest of the service" pursuant to Section 24(c) of PD No. 807, or the Civil Service Decree, and not
because she was being reorganized out by virtue of EO 119 or the "Reorganization Act of the Ministry of Health," although
the said Act was invoked after the fact. And so it was that SECTION 16 was never mentioned, much less invoked in the
Palma-Fernandez case.
Finally, on this point, it is inaccurate for the majority to state that there were no reorganization orders after ratification.
There were, namely, EO 181 (Reorganization Act of the Civil Service Commission), June 1, 1987; EO 193 (Reorganization
Act of the Office of Energy Affairs), June 10, 1987; EO 230 (Reorganization Act of NEDA), July 22, 1987; EO 262
(Reorganization Act of the Department of Local Government), July 25, 1987; EO 297 (Reorganization Act of the Office of
the Press Secretary), July 25, 1987.
The Element of Good Faith
The majority concedes that reorganization can be undertaken provided it be in good faith but concludes that
Commissioner Mison was not in good faith.
The aforesaid conclusion is contradicted by the records.
Executive Order No. 127, dated 30 January 1987, specifically authorized the reorganization of the Bureau of Customs
"structurally and functionally" and provided for the abolition of all units and positions thereof not included in the structural
organization S election 55).
As stated heretofore, it was the former Commissioner of Customs, Alexander A. Padilla who, on 24 May 1987, transmitted
to the Department of Finance for approval the proposed "position structure and staffing pattern" of the Bureau of
Customs. This was approved by the Department of Finance. Thereafter, it was transmitted to and approved by the
Department of Budget and Management on 7 September 1987 for implementation. Under the old staffing pattern, there
were 7,302 positions while under the new staffing pattern, there are 6,530 positions.
On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the Implementation of Reorganization Executive
Orders" provided:
By October 21, 1987, all employees covered by the Executive orders for each agency on reorganization shall be:
a. informed of their reappointment, or
b. offered another position in the same department or agency, or
c. informed of their termination. (emphasis supplied)
On 25 November 1987 Commissioner Mison asked for and was granted by the President an extension up to February 1988
within which to completely undertake the reorganization of the Bureau of Customs.
On 6 January 1988, he issued Bureau of Customs Memorandum "Re Guidelines on the Implementation of Reorganization
Executive Orders" reiterating the above- quoted portion of the Malacanang Memorandum of 2 October 1987. Pursuant
thereto, on 28 January 1988, Commissioner Mison addressed uniform letters of termination to the employees listed on
pages 15, 16 and 17 of the majority opinion, effective on 28 February 1988, within the extended period granted.
The records further show that upon Commissioner Mison's official inquiry, Secretary of Justice Sedfrey A. Ordoñ;ez,
rendered the following Opinion:
. . . It is believed that customs employees who are reorganized out in the course of the implementation of E.O. No. 127
(reorganizing the Department of Finance) need not be informed of the nature and cause of their separation from the
service. It is enough that they be 'informed of their termination' pursuant to section 1(c) of the Memorandum dated
October 2, 1987 of President Aquino, which reads:
1. By October 21, 1987, all employees covered by the Executive orders for each agency on reorganization shall be:
xxx xxx xxx
c) Informed of their terminations.
The constitutional mandate that 'no officer or employee of the civil service shall be renewed or suspended except for cause
as provided by law' (Sec. 2(4) (sic), Article IX-B of the 1987 Constitution) does not apply to employees who are separated
from office as a result of the reorganization of that Bureau as directed in Executive Order No. 127.
xxx xxx xxx
Regarding your (third) query, the issue as to the constitutionality of Executive Order No. 127 is set at rest, after the
Supreme Court resolved to dismiss the petition for certiorari questioning its enforceability, for lack of merit (see Jose vs.
Arroyo, et al., supra). (Opinion No. 41, s. 1988, March 3, 1988) (Emphasis supplied)
The former Chairman of the Civil Service Commission, Celerina G. Gotladera likewise periodically consulted by
Commissioner Mison, also expressed the opinion that "it is not a prerequisite prior to the separation of an employee
pursuant to reorganization that he be administratively charged." (Annex 16, p. 411, Rollo, G.R. No. 85310)
Moreover, the records show that the final selection and placement of personnel was done by a Placement Committee,
one of whose members is the Head of the Civil Service Commission Field Office, namely, Mrs. Purificacion Cuerdo The
appointment of employees made by Commissioner Mison was based on the list approved by said Placement Committee.
But the majority further faults Mison for defying the President's directive to halt further layoffs as a consequence of
reorganization, citing OP Memo of 14 October 1987, reading:
Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further
layoffs this year of personnel as a result of the government reorganization. (p. 45, Decision)
The foregoing, however, must be deemed superseded by later developments, namely, the grant to Commissioner Mison
by the President on 22 December 1987 of a grace period until the end of February 1988 within which to completely
undertake the reorganization of the Bureau of Customs, which was, in fact, accomplished by 28 February 1988.
To further show lack of good faith, the majority states that Commissioner Mison failed to observe the procedure laid down
by EO 17, supra, directing inter alia that a notice of separation be issued to an employee to be terminated indicating
therein the reason/s or ground/s for such separation. That requirement, however, does not appear in Section 59 of EO
127, which provides on the contrary "that those incumbents whose positions are not included in the new position
structure and staffing pattern of the Ministry or who are not reappointed shall be deemed separated from the service."
The right granted by EO 17 to an employee to be informed of the ground for his separation must be deemed to have been
revoked by the repealing clause of EO 127 (Section 67) providing that "all laws, ordinances or parts thereof, which are
inconsistent with this Executive Order, are hereby repealed and modified accordingly."
Moreover, Section 11 of EO 17 explicitly excepts from its coverage a reorganization pursuant to EO 5. Thus
The Executive Order shall not apply to elective officials or those designated to replace them, presidential appointees,
casual and contractual employees, or officials and employees removed pursuant to desciplinary proceedings under the
Civil Service law and rules, and to those laid off as a result of reorganization undertaken pursuant to Executive Order No.
5. (Emphasis ours)
That EO 127 was issued pursuant to or in implementation of EO 5, is shown by its introductory portion reading:
Recalling that the reorganization of the government is mandated expressly by Article II, Section 1 (a) and Article III of the
Freedom Constitution;
Having in mind that pursuant to Executive order No. 5 (1986), it is directed that the necessary and proper changes in the
organizational and functional structures of the government, its agencies and instrumentalities, be effected in order to
promote efficiency and effectiveness in the delivery of public service; (Italics supplied)
Constitutionality of Republic Act No. 6656
The majority also relies on Republic Act No. 6656 entitled an "Act to Protect the Security of Tenure of Civil Service Officers
and Employees in the Implementation of Government Reorganization," particularly Section 2 thereof, to test the good
faith of Commissioner Mison.
We are of the view, however, that in providing for retroactivity in its Section 13, RA 6656 clashes frontally with SECTION
16.
1) SECTION 16 clearly recognizes that career service employees separated from the service by reason of the "complete
reorganization of the government" pursuant to Proclamation No. 3 may be separated NOT FOR CAUSE. And yet, RA 6656
requires the exact opposite — separation FOR CAUSE. It would not be remiss to quote the provision again:
SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and
hearing. A valid cause for removal exist when, pursuant to a bona fide reorganization, a position has been abolished or
rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the
service, or other lawful causes allowed by the Civil Service law. The existence of any or some of the following circumstances
may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for
reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions
in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished and another
performing substantially the same functions is created; (c) Where incumbents are replaced by those less qualified in terms
of status of appointment, performance and merit; (d) Where there is a reclassification of offices in the department or
agency concerned and the reclassified offices perform substantially the same functions as the original offices; (e) Where
the removal violates the order of separation provided in Section 3 hereof. (Republic Act No. 6156)
The standards laid down are the "traditional" criteria for removal of employees from the career service, e.g. valid cause,
due notice and hearing, abolition of, or redundancy of offices. Proclamation No. 3, on the other hand, effectuates the
"progressive" type of reorganization dictated by the exigencies of the historical and political upheaval at the time. The
"traditional" type is limited in scope. It is concerned with the individual approach where the particular employee involved
is charged administratively and where the requisites of notice and hearing have to be observed. The "progressive" kind of
reorganization, on the other hand, is the collective way. It is wider in scope, and is the reorganization contemplated under
SECTION 16.
2) By providing for reinstatement in its Section 9, RA 6656 adds a benefit not included in SECTION 16. The benefits granted
by the latter provision to employees separated NOT FOR CAUSE but as a consequence of reorganization are "separation
pay, retirement, and other benefits accruing to them under the laws of general application in force at the time of their
separation." The benefit of reinstatement is not included. RA 6656, however, allows reinstatement. That it cannot do
because under SECTION 16, it is not one of the laws "in force at the time of their separation."
The Constitution is the paramount law to which all laws must conform. It is from the Constitution that all statutes must
derive their bearings. The legislative authority of the State must yield to the expression of the sovereign will. No statutory
enactment can disregard the Charter from which it draws its own existence (Phil. Long Distance Telephone Co. v. Collector
of Internal Revenue, 90 Phil. 674 [1952]). But, that is exactly what RA 6656 does in providing for retroactivity — it
disregards and contravenes a Constitutional imperative. To save it, it should be applied and construed prospectively and
not retroactively notwithstanding its explicit provision. Then, and only then, would it make good law.
Effects of Reorganization
To be sure, the reorganization could effect the tenure of members of the career service as defined in Section 5, Article IV
of Presidential Decree No. 807, and may even result in the separation from the office of some meritorious employees. But
even then, the greater good of the greatest number and the right of the citizenry to a good government, and as they
themselves have mandated through the vehicle of Proclamation No. 3, provide the justification for the said injury to the
individual. In terms of values, the interest of an employee to security of tenure must yield to the interest of the entire
populace and to an efficient and honest government.
But a reorganized employee is not without rights. His right lies in his past services, the entitlement to which must be
provided for by law. EO 127 provides for the same in its Section 59, and so does SECTION 16 when the latter specified that
career civil service employees separated from the service not for cause:
shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of
general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be
considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including
government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose
resignation, tendered in line with the existing policy, has been accepted.
This is a reward for the employee's past service to the Government. But this is all There is no vested property right to be
reemployed in a reorganized office.
The right to an office or to employment with government or any of its agencies is not a vested property right, and removal
therefrom will not support the question of due process" Yantsin v. Aberdeen, 54 Wash 2d 787, 345 P 2d 178). A civil service
employee does not have a constitutionally protected right to his position, which position is in the nature of a public office,
political in character and held by way of grant or privilege extended by government; generally he has been held to have
no property right or vested interest to which due process guaranties extend (See Taylor v. Beckham 178 U.S. 548, 44 L Ed.
1187; Angilly v. US CA2 NY 199 F 2d 642; People ex. rel. Baker v. Wilson, 39 III App 2d 443, 189 NE 2d 1; Kelliheller v. NY
State Civil Service Com 21 Misc 2d 1034, 194 NYS 2d 89).
To ensure, however, that no meritorious employee has been separated from the service, there would be no harm, in fact,
it could do a lot of good, if the Commissioner of Customs reviews the evaluation and placements he has so far made and
sees to it that those terminated are included in a consolidated list to be given preference by departments who are
recruiting (Section 2[a], BOC Memorandum, January 6,1988).lâwphî1.ñèt
Conclusion
Premises considered, and subject to the observation hereinabove made, it is our considered view that the separation from
the service "NOT FOR CAUSE but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986"
of the affected officers and employees of the Bureau of Customs should be UPHELD, and the Resolutions of the Civil
Service Commission, dated 30 June 1988, 20 September 1988, and 16 November 1988 should be SET ASIDE for having
been issued in grave abuse of discretion.
Republic Act No. 6656, in so far as it provides for retroactivity, should be declared UNCONSTITUTIONAL for being
repugnant to the letter and spirit of Section 16, Article XVIII of the 1987 Constitution.

Fernan, C.J., Narvasa, Feliciano, Regalado, JJ., concur.

Separate Opinions
CRUZ, J., concurring:
I concur with the majority view so ably presented by Mr. Justice Abraham F. Sarmiento. While additional comments may
seem superfluous in view of the exhaustiveness of his ponencia, I nevertheless offer the following brief observations for
whatever they may be worth.
Emphasizing Article XVII, Section 16 of the Constitution, the dissenting opinion considers the ongoing government
reorganization valid because it is merely a continuation of the reorganization begun during the transition period. The
reason for this conclusion is the phrase "and the reorganization following the ratification of the Constitution," that is to
say, after February 2, 1987, appearing in the said provision. The consequence (and I hope I have not misread it) is that the
present reorganization may still be undertaken with the same "absoluteness" that was allowed the revolutionary
reorganization although the Freedom Constitution is no longer in force.
Reorganization of the government may be required by the legislature even independently of specific constitutional
authorization, as in the case, for example, of R.A. No. 51 and B.P. No. 129. Being revolutionary in nature, the reorganization
decreed by Article III of the Freedom Constitution was unlimited as to its method except only as it was later restricted by
President Aquino herself through various issuances, particularly E.O. No. 17. But this reorganization, for all its permitted
summariness, was not indefinite. Under Section 3 of the said Article III, it was allowed only up to February 29,1987 (which
we advanced to February 2, 1987, when the new Constitution became effective).
The clear implication is that any government reorganization that may be undertaken thereafter must be authorized by the
legislature only and may not be allowed the special liberties and protection enjoyed by the revolutionary reorganization.
Otherwise, there would have been no necessity at all for the time limitation expressly prescribed by the Freedom
Constitution.
I cannot accept the view that Section 16 is an authorization for the open-ended reorganization of the government
"following the ratification of the Constitution." I read the provision as merely conferring benefits — deservedly or not —
on persons separated from the government as a result of the reorganization of the government, whether undertaken
during the transition period or as a result of a law passed thereafter. What the grants is privileges to the retirees, not
power to the provision government. It is axiomatic that grants of power are not lightly inferred, especially if these impinge
on individual rights, and I do not see why we should depart from this rule.
To hold that the present reorganization is a continuation of the one begun during the transition period is to recognize the
theory of the public respondent that all officers and employees not separated earlier remain in a hold-over capacity only
and so may be replaced at any time even without cause. That is a dangerous proposition that threatens the security and
stability of every civil servant in the executive department. What is worse is that this situation may continue indefinitely as
the claimed "progressive" reorganization has no limitation as to time.
Removal imports the forcible separation of the incumbent before the expiration of his term and can be done only for
cause as provided by law. Contrary to common belief, a reorganization does not result in removal but in a different mode
of terminating official relations known as abolition of the office (and the security of tenure attached thereto.) The
erstwhile holder of the abolished office cannot claim he has been removed without cause in violation of his constitutional
security of tenure. The reason is that the right itself has disappeared with the abolished office as an accessory following
the principal. (Ocampo v. Sec. of Justice, 51 O.G. 147; De la Llana v. Alba, 112 SCRA 294; Manalang v. Quitoriano, 94 Phil.
903.)
This notwithstanding, the power to reorganize is not unlimited. It is essential that it be based on a valid purpose, such as
the promotion of efficiency and economy in the government through a pruning of offices or the streamlining of their
functions. (Cervantes v. Auditor-General, 91 Phil. 359.) Normally, a reorganization cannot be validly undertaken as a means
of purging the undesirables for this would be a removal in disguise undertaken en masse to circumvent the constitutional
requirement of legal cause. (Eradication of graft and corruption was one of the expressed purposes of the revolutionary
organization, but this was authorized by the Freedom Constitution itself.) In short, a reorganization, to be valid, must be
done in good faith. (Urgelio v. Osmena, 9 SCRA 317; Cuneta v. Court of Appeals, 1 SCRA 663; Carino v. ACCFA, 18 SCRA
183.)
A mere recitation — no matter how lengthy — of the directives, guidelines, memoranda, etc. issued by the government
and the action purportedly taken thereunder does not by itself prove good faith. We know only too well that these
instructions, for all their noble and sterile purposes, are rarely followed in their actual implementation. The reality in this
case, as the majority opinion has pointed out and as clearly established in the hearing we held, is that the supposed
reorganization was undertaken with an eye not to achieving the avowed objectives but to accommodating new appointees
at the expense of the dislodged petitioners. That was also the finding of the Civil Service Commission, to which we must
accord a becoming respect as the constitutional office charged with the protection of the civil service from the evils of the
spoils system.
The present administration deserves full support in its desire to improve the civil service, but this objective must be
pursued in a manner consistent with the Constitution. This praiseworthy purpose cannot be accomplished by an
indiscriminate reorganization that will sweep in its wake the innocent along with the redundant and inept, for the benefit
of the current favorites.

MELENCIO-HERRERA, J., dissenting:

The historical underpinnings of Government efforts at reorganization hark back to the people power phenomenon of 22-
24 February 1986, and Proclamation No. 1 of President Corazon C. Aquino, issued on 25 February 1986, stating in no
uncertain terms that "the people expect a reorganization of government." In its wake followed Executive Order No. 5,
issued on 12 March 1986, "Creating a Presidential Commission on Government Reorganization," with the following
relevant provisions:
WHEREAS, there is need to effect the necessary and proper changes in the organizational and functional structures of the
national and local governments, its agencies and instrumentalities, including government-owned and controlled
corporations and their subsidiaries, in order to promote economy, efficiency and effectiveness in the delivery of public
services
xxx xxx xxx
Section 2. The functional jurisdiction of the PCGR shall encompass, as necessary, the reorganization of the national and
local governments, its agencies and instrumentalities including government-owned or controlled corporations and their
subsidiaries.
xxx xxx xxx (Emphasis supplied)
Succeeding it was Proclamation No. 3, dated 25 March 1986, also known as the Freedom Constitution, declaring, in part,
in its Preamble as follows:
WHEREAS, the direct mandate of the people as manifested by their extraordinary action demands the complete
reorganization of the government, ... (Emphasis supplied)
and pertinently providing:
ARTICLE II
Section I
xxx xxx xxx
The President shall give priority to measures to achieve the mandate of the people to:
(a) Completely reorganize the government and eradicate unjust and oppressive structures, and all iniquitous vestiges of
the previous regime;" (Emphasis supplied)
xxx xxx xxx
ARTICLE III — GOVERNMENT REORGANIZATION
Section 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their
successors, if such is made within a period of one year from February 25, 1986.
Section 3. Any public office or employee separated from the service as a result of the reorganization effected under this
Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder.
(Emphasis ours)
On 28 May 1986, Executive Order No. 17 was issued "Prescribing Rules and Regulations for the Implementation of Section
2, Article III of the Freedom Constitution' providing, inter alia, as follows:
Section 1. In the course of implementing Article III, Section 2 of the Freedom Constitution, the Head of each Ministry shall
see to it that the separation or replacement of officers and employees is made only for justifiable reasons, to prevent
indiscriminate dismissal, of personnel in the career civil service whose qualifications and performance meet the standards
of public service of the New Government.
xxx xxx xxx
The Ministry concerned shall adopt its own rules and procedures for the review and assessment of its own personnel,
including the identification of sensitive positions which require more rigid assessment of the incumbents, and shall
complete such review/assessment as expeditiously as possible but not later than February 24, 1987 to prevent undue
demoralization in the public service.
Section 2. The Ministry Head concerned, on the basis of such review and assessment shall determine who shall be
separated from the service. Thereafter, he shall issue to the official or employee concerned a notice of separation which
shall indicate therein the reason/s or ground /s for such separation and the fact that the separated official or employee
has the right to file a petition for reconsideration pursuant to this Order. Separation from the service shall be effective
upon receipt of such notice, either personally by the official or employee concerned or on his behalf by a person of
sufficient discretion.
Section 3. The following shall be the grounds for separation/ replacement of personnel:
1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;
2. Existence of a probable cause for violation of the Anti-Graft and Corrupt Practice Act as determined by the Ministry
Head concerned;
3. Gross incompetence or inefficiency in the discharge of functions;
4. Misuse of Public office for partisan political purposes;
5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement
is in the interest of the service.
Section 11. This Executive Order shall not apply to elective officials or those designated to replace them, presidential
appointees, casual and contractual employees, or officials and employees removed pursuant to disciplinary proceedings
under the Civil Service Law and rules, and to those laid off as a result of the reorganization undertaken pursuant to
Executive Order No. 5. (Emphasis supplied)
On 6 August 1986, Executive Order No. 39 was issued by the President "Enlarging the Powers and Functions of the
Commissioner of Customs", as follows:
xxx xxx xxx
SECTION 1. In addition to the powers and functions of the Commissioner of Customs, he is hereby authorized, subject to
the Civil Service Law and its implementing rules and regulations:
a) To appoint all Bureau personnel, except those appointed by the President;
b) To discipline, suspend, dismiss or otherwise penalize erring Bureau officers and employees;
c) To act on all matters pertaining to promotion, transfer, detail, reassignment, reinstatement, reemployment and other
personnel action, involving officers and employees of the Bureau of Customs.
xxx xxx xxx
On 30 January 1987, Executive Order No. 127 was issued "Reorganizing the Ministry of Finance." Similar Orders,
approximately thirteen (13) in all, 1 were issued in respect of the other executive departments. The relevant provisions
relative to the Bureau of Customs read:
RECALLING that the reorganization of the government is mandated expressly in Article II, Section l(a) and Article III of the
Freedom Constitution;
HAVING IN MIND that pursuant to Executive Order No. 5 (1986), it is directed that the necessary and proper changes in
the organizational and functional structures of the government, its agencies and instrumentalities, be effected in order to
promote efficiency and effectiveness in the delivery of public services;
BELIEVING that it is necessary to reorganize the Ministry of Finance to make it more capable and responsive,
organizationally and functionally, in its primary mandate of judiciously generating and efficiently managing the financial
resources of the Government, its subdivisions and instrumentalities in order to attain the socio-economic objectives of
the national development programs.
xxx xxx xxx
SEC. 2. Reorganization. — The Ministry of Finance, hereinafter referred to as Ministry, is hereby reorganized, structurally
and functionally, in accordance with the provisions of this Executive Order.
SEC. 33. Bureau of Customs.
... Executive Order No. 39 dated 6 August 1986 which grants autonomy to the Commissioner of Customs in matters of
appointment and discipline of Customs personnel shall remain in effect.
SEC. 55. Abolition of Units Integral to Ministry. — All units not included in the structural organization as herein provided
and all positions thereof are hereby deemed abolished. ... Their personnel shall be entitled to the benefits provided in the
second paragraph of Section 59 hereof.
SEC. 59. New Structure and Pattern. — Upon approval of this Executive Order, the officers and employees of the Ministry
shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding
salaries and benefits unless in the meantime they are separated from government service pursuant to executive Order No.
17 (1986) or article III of the Freedom Constitution.
The new position structure and staffing pattern of the ministry shall be approved and prescribed by the Minister within
one hundred twenty (120) days from the approval of this Executive Order and the authorized positions created hereunder
shall be filled with regular appointments by him or by the President, as the case may be. Those incumbents whose positions
are not included therein or who are not reappointed shall be deemed separated from the service. Those separated from
the service shall receive the retirement benefits to which they may be entitled under the existing laws, rules and
regulations. Otherwise, they shall be paid the equivalent of one month basic salary for every year of service or the
equivalent nearest fraction thereof favorable to them on the basis of highest salary received, but in no case shall such
payment exceed the equivalent of 12 months salary.
No court or administrative body shall issue any writ or preliminary junction or restraining order to enjoin the
separation/replacement of any officer or employee affected under this Executive Order.
Section 67 — All laws, ordinances, rules, regulations and other issuances or parts thereof, which are inconsistent with this
Executive Order, are hereby repealed or modified accordingly.
xxx xxx xxx (Emphasis ours)
On 2 February 1987, the present Constitution took effect (De Leon, et al., vs. Esguerra, G.R. No. 78059, August 31, 1987153
SCRA 602). Reorganization in the Government service pursuant to Proclamation No. 3, supra, was provided for in its
Section 16, Article XVIII entitled Transitory Provisions, reading:
Section 16. Career civil service employees separated from the service not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution
shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of
general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be
considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including
government owned or controlled corporations and their subsidiaries. Ms provision also applies to career officers whose
resignation, tendered in line with the existing policy, has been accepted.
On 24 May 1987 the then Commissioner of Customs, Alexander A. Padilla, transmitted to the Department of Finance for
approval the proposed "position structure and staffing pattern" of the Bureau of Customs. Said Department gave its
imprimatur. Thereafter, the staffing pattern was transmitted to and approved by the Department of Budget and
Management on 7 September 1987 for implementation. Under the old staffing pattern, there were 7,302 positions while
under the new staffing pattern, there are 6,530 positions CSC Resolution in CSC Case No. 1, dated 20 September 1988, pp.
3-4).
On 22 September 1987, Salvador M. Mison assumed office as Commissioner of Customs.
On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the Implementation of Reorganization Executive
Orders" was issued reading, insofar as revelant to these cases, as follows:
It is my concern that ongoing process of government reorganization be conducted in a manner that is expeditious, as well
as sensitive to the dislocating consequences arising from specific personnel decisions.
The entire process of reorganization, and in particular the process of separation from service, must be carried out in the
most humane manner possible.
For this purpose, the following guidelines shall be strictly followed:
1. By October 21, 1987, all employees covered by the Executive Orders for each agency on reorganization shall be:
a. informed of their reappointment or
b. offered another position in the same department/ agency or
c. informed of their termination.
2. In the event of an offer for a lower position, there will be no reduction in the salary.
xxx xxx xxx
4. Each department/agency shall constitute a Reorganization Appeals Board at the central office, on or before October 21,
1987, to review or reconsider appeals or complaints relative to reorganization. All cases submitted to the Boards shall be
resolved subject to the following guidelines:
a. publication or posting of the appeal procedure promulgated by the Department Secretary;
b. adherence to due process;
c. disposition within 30 days from submission of the case;
d written notification of the action taken and the grounds thereof.
Action by the Appeals Review Board does not preclude appeal to the Civil Service Commission.
5. Placement in the new staffing pattern of incumbent personnel shall be completed prior to the hiring of new personnel,
if any.
xxx xxx xxx (Emphasis ours)
On 25 November 1987 Commissioner Mison wrote the President requesting a grace period until the end of February 1988
within which to completely undertake the reorganization of the Bureau of Customs pursuant to Executive Order No. 127
dated 30 January 1987. Said request was granted in a letter-reply by Executive Secretary Catalino Macaraig, Jr., dated 22
December 1987.
On 6 January 1988, within the extended period requested, Bureau of Customs Memorandum "Re: Guidelines on the
Implementation of Reorganization Executive Orders" was issued in the same tenor as the Malacanang Memorandum of 2
October 1987, providing inter alia:
To effectively implement the reorganization at the Bureau of Customs, particularly in the selection and placement of
personnel, and insure that the best qualified and most competent personnel in the career service are retained, the
following guidelines are hereby prescribed for the guidance of all concerned
1. By February 28, 1988 all employees covered by Executive Order No. 127 and the grace period extended to the Bureau
of Customs by the President of the Philippines on reorganization shall be:
a. informed of their reappointment, or
b. offered another position in the same department or agency or
c. informed of their termination.
2. In the event of termination, the employee shall:
a. be included in a consolidated list compiled by the Civil Service Commission. All departments who are recruiting shall
give preference to the employees in the list; and
b. continue to receive salary and benefits until February 28, 1988, and
c. be guaranteed the release of separation benefits within 45 days from termination and in no case later than June 15,
1988.
xxx xxx xxx (Emphasis supplied)
It is to be noted that paragraph 1 above and its sub-sections reproduced verbatim the Malacanang Guidelines of 2 October
1987 in that the employees concerned were merely to be informed of their termination.
On 28 January 1988 Commissioner Mison addressed identical letters of termination to Bureau of Customs officers and
employees effective on 28 February 1988.
As of 18 August 1988, Commissioner Mison appointed five hundred twenty-two (522) officials and employees of the
Bureau of Customs (CSC Resolution in CSC Case No. 1, dated 20 September 1988, p. 6). In fact, in a letter dated 27 January
1988, Commissioner Mison recommended Jose M. Balde for appointment to President Aquino as one of three (3) Deputy
Commissioners under Executive Order No. 127.
In the interim, during the pendency of these Petitions, Republic Act No. 6656, entitled "An Act to Protect the Security of
Tenure of Civil Service Officers and Employees in the Implementation of Government Reorganization" was passed by
Congress on 9 June 1988. The President signed it into law on 10 June 1988 and the statute took effect on 29 June 1988.
On 20 June 1988 Motions were filed, in these cases pending before this Court, invoking the provisions of Republic Act No.
6656. The relevant provisions thereof read:
SECTION 1. It is hereby declared the policy of the State to protect the security of tenure of civil service officers and
employees in the reorganization of the various agencies of the National government ....
SECTION 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and
hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or
rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the
service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following
circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise
to a claim for reinstatement or reappointment by an aggrieved party:
(a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency
concerned;
(b) Where an office is abolished and another performing substantially the same functions is created;
(c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit;
(d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform
substantially the same functions as the original offices;
(e) Where the removal violates the order of separation provided in Section 3 hereof.
xxx xxx xxx
SECTION 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation
of the provisions of this Act, shall be ordered reinstated or reappointed as the case may be without loss of seniority and
shall be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees,
including casuals and temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto,
be paid the appropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from
the date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as the case
may be: Provided, That application for clearance has been filed and no action thereon has been made by the corresponding
department or agency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount
equivalent to one (1) month salary for every year of service. Such separation pay and retirement benefits shall have priority
of payment out of the savings of the department or agency concerned.
xxx xxx xxx
SECTION 11. The executive branch of the government shall implement reorganization schemes within a specified period
of time authorized by law.
In the case of the 1987 reorganization of the executive branch, all departments and agencies which are authorized by
executive orders promulgated by the President to reorganize shall have ninety (90) days from the approval of this Act
within which to implement their respective reorganization plans in accordance with the provisions of this Act.
xxx xxx xxx
SECTION 13. All laws, rules and regulations or parts thereof, inconsistent with the provisions of this Act are hereby
repealed or modified accordingly. The rights and benefits under this Act shall be retroactive as of June 30, 1987.
xxx xxx xxx (Emphasis ours)
Given the foregoing statutory backdrop, the issues can now be addressed.
Scope of Section 16, Art. XVIII, 1987 Constitution
Crucial to the present controversy is the construction to be given to the abovementioned Constitutional provision
(SECTION 16, for brevity), which speaks of.
Career civil service employees separated from the service not for cause
but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986
and the reorganization following the ratification of this Constitution ... (paragraphing supplied).
To our minds, SECTION 16 clearly recognizes (1) the reorganization authorized by Proclamation No. 3; (2) that such
separation is NOT FOR CAUSE but as a result of the reorganization pursuant to said Proclamation; and (3) that the
reorganization pursuant to Proclamation No. 3 may be continued even after the ratification of the 1987 Constitution
during the transition period.
Separation NOT FOR CAUSE
The canon for the removal or suspension of a civil service officer or employee is that it must be FOR CAUSE. That means a
guarantee of both procedural and substantive due process. Basically, procedural due process would require that
suspension or dismissal come only after notice and hearing. Substantive due process would require that suspension or
dismissal be 'for cause'." Bernas The Constitution of the Republic of the Philippines: A Commentary, Vol. II, First Edition,
1988, p. 334)
The guarantee of removal FOR CAUSE is enshrined in Article IX-B, Section 2(3) of the 1987 Constitution, which states that
'No officer or employee of the civil service shall be removed or suspended except FOR CAUSE provided by law."
There can be no question then as to the meaning of the phrase FOR CAUSE. It simply means the observance of both
procedural and substantive due process in cases of removal of officers or employees of the civil service. When SECTION
16 speaks, therefore, of separation from the service NOT FOR CAUSE, it can only mean the diametrical opposite. The
constitutional intent to exempt the separation of civil service employees pursuant to Proclamation No. 3 from the
operation of Article IX-B, Section 2(3), becomes readily apparent. A distinction is explicitly made between removal FOR
CAUSE, which as aforestated, requires due process, and dismissal NOT FOR CAUSE, which implies that the latter is not
bound by the "fetters' of due process.
It is obviously for that reason that Section 16 grants separation pay and retirement benefits to those separated NOT FOR
CAUSE but as a result of the reorganization precisely to soften the impact of the non-observance of due process. "What is
envisioned in Section 16 is not a remedy for arbitrary removal of civil servants enjoying security of tenure but some form
of relief for members of the career civil service who may have been or may be legally but involuntarily 'reorganized out'
of the service or may have voluntarily resigned pursuant to the reorganization policy" (ibid., p. 615).
Reorganization Pursuant to Proclamation No. 3 to Continue Transitorily Even After Ratification
By its very context, SECTION 16 envisages the continuance of the reorganization pursuant to Proclamation No. 3 even
after ratification of the Constitution and during the transition period. The two [2] stages contemplated, namely, (1) the
stage before and (2) after ratification, refer to the same nature of separation "NOT FOR CAUSE but as a result of
Proclamation No. 3." No valid reason has been advanced for a different treatment after ratification as the majority opines
i.e., that separation NOT FOR CAUSE is allowed before ratification but that, thereafter, separation can only be FOR CAUSE.
A fundamental principle of Constitutional construction is to assure the realization of the purpose of the framers of the
organic law and of the people who adopted it.
That the reorganization commenced pursuant to Proclamation No. 3 was envisioned to continue even after the ratification
of the 1987 Constitution, at least transitorily, is evident from the intent of its authors discoverable from their deliberations
held on 3 October 1986 and evincing their awareness that such reorganization had not as yet been fully implemented.
Thus:
Mr. PADILLA. Mr. Presiding Officer, on lines 2 to 5 is the clause 'pursuant to the provisions of Article III of Proclamation
No. 3, issued on March 25, 1986, and the reorganization.' Are those words necessary? Can we not just say 'result of the
reorganization following the ratification of this Constitution'? In other words, must we make specific reference to
Proclamation No. 3?
Mr. SUAREZ. Yes. I think the committee feels that is necessary, because in truth there has been a reorganization by virtue
of Proclamation No. 3. In other words, there are two stages of reorganization covered by this section.
Mr. PADILIA. I understand there is a reorganization committee headed by a minister?
Mr. SUAREZ. Philippine Commission on Government Reorganization.
Mr. PADILLA. But whether that has already been implemented or not, I do not believe in it. There has been a plan, but I
do not think it has been implemented. If we want to include any previous reorganization after or before the ratification,
why do we not just say reorganization before or after the ratification' to simplify the provision and eliminate two-and-a-
half sentences that may not be necessary? And as a result of the reorganization, if the committee feels there has been
reorganization before ratification and there be reorganization after, we just say 'before or after the ratification of this
Constitution.
Mr. SUAREZ. Something like this as a result of the reorganization effected before or after the ratification of the
Constitution on the understanding, with the statement into the records, that this would be applicable to those reorganized
out pursuant to the Freedom Constitution also.
Mr. PADILLA. That is understood if there has been a reorganization before the ratification or a reorganization after the
ratification." (RECORDS of the Constitutional Commission, Vol. 5, p. 416) (Emphasis provided)
It should also be recalled that the deadline for the reorganization under Proclamation No. 3 was "one year from February
25, 1986" (Article III, Section 2), or up to February 24, 1987. Executive Order No. 17 itself provided that the
review/assessment of personnel be completed "not later than February 24, 1987." But, confronted with the reality of the
ratification of the Constitution before that deadline without reorganization having been completed, there was need for a
provision allowing for its continuance even after ratification and until completed. It was also to beat that deadline that EO
127 and similar issuances, providing for the reorganization of departments of government, were all dated 30 January 1987
or prior to the plebiscite held on 2 February 1987. The intent to continue and complete the reorganizations started is self-
evident in SECTION 16.
In Jose vs. Arroyo, et al. (G.R. No. 78435, August 11, 1987), which was a Petition for certiorari and Prohibition to enjoin the
implementation of Executive Order No. 127, we recognized that the reorganization pursuant to Proclamation No. 3 as
mandated by SECTION 16, was to continue even after ratification when we stated:
The contention of petitioner that EO No. 127 is violative of the provision of the 1987 Constitution guaranteeing career civil
service employees security of tenure overlooks the provision of Section 16, Art. XVIII (Transitory Provisions) which
explicitly authorizes the removal of career civil service employees not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of the
Constitution. By virtue of said provision, the reorganization of the Bureau of Customs under Executive Order No. 127 may
continue even after the ratification of this Constitution and career civil service employees may be separated from the
service without cause as a result of such reorganization. (Emphasis ours)
With due respect to the majority, we disagree with its conclusion that the foregoing pronouncement is mere "obiter
dictum."
An obiter dictum or dictum has been defined as a remark or opinion uttered, by the way. It is a statement of the court
concerning a question which was not directly before it (In re Hess 23 A. 2d. 298, 301, 20 N.J. Misc. 12). It is language
unnecessary to a decision, (a) ruling on an issue not raised, or (an) opinion of a judge which does not embody the resolution
or determination of the court, and is made without argument or full consideration of the point (Lawson v. US, 176 F2d 49,
51, 85 U.S. App. D.C. 167). It is an expression of opinion by the court or judge on a collateral question not directly involved,
(Crescent Ring Co. v. Travelers Indemnity Co. 132 A. 106, 107, 102 N.J. Law 85) or not necessary for the decision Du Bell v.
Union Central Life Ins. Co., 29, So. 2d 709, 712; 211 La. 167).
In the case at bar, however, directly involved and squarely before the Court was the issue of whether EO 127 violates
Section 2(3) of Article IX-B of the 1987 Constitution against removal of civil service employees except for cause." Petitioner
batted for the affirmative of the proposition, while respondents contended that "removal of civil service employees
without cause is allowed not only under the Provisional Constitution but also under the 1987 Constitution if the same is
made pursuant to a reorganization after the ratification of the Constitution."
It may be that the Court dismissed that Petition for being premature, speculative and purely anticipatory" inasmuch as
petitioner therein had "not received any communication terminating or threatening to terminate his services." But that
was only one consideration. The Court still proceeded to decide all the issues adversatively contested by the parties,
namely "1) that the expiration date of February 25, 1 987 fixed by Section 2 of Proclamation No. 3 on which said Executive
order is based had already lapsed; 2) that the Executive Order has not been published in the Official Gazette as required
by Article 2 of the Civil Code and Section 1 1 of the Revised Administrative Code; and 3) that its enforcement violates
Section 2(3) of Article IX B of the 1987 Constitution against removal of civil service employees except for cause."
The ruling of the Court, therefore, on the Constitutional issues presented, particularly, the lapse of the period mandated
by Proclamation No. 3, and the validity of EO 127, cannot be said to be mere "obiter." They were ultimate issues directly
before the Court, expressly decided in the course of the consideration of the case, so that any resolution thereon must be
considered as authoritative precedent, and not a mere dictum (See Valli v. US, 94 F2d 687 certiorari granted 58 S. Ct. 760,
303 U.S. 82 L. Ed. 1092; See also Weedin v. Tayokichi Yamada 4 F. (2d) 455).lâwphî1.ñètSuch resolution would not lose its
value as a precedent just because the disposition of the case was also made on some other ground.
.....And this rule applies as to all pertinent questions although only incidentally involved, which are presented and decided
in the regular course of the consideration of the case, and lead up to the final conclusion (Northern Pac. Ry Co. v. Baker,
D.C. Wash., 3 F. Suppl. 1; See also Wisconsin Power and Light Co. v. City of Beloit 254 NW 119; Chase v. American Cartage
Co. 186 N.W. 598; City of Detroit, et al. v. Public Utilities Comm. 286 N.W. 368). Accordingly, a point expressly decided
does not lose its value as a precedent because the disposition of the case is made on some other ground. (Wagner v. Com
Products Refining Co. D.C. N.J. 28 F 2d 617) Where a case presents two or more points, any one of which is sufficient to
determine the ultimate issue, but the court actually decides all such points, the case is an authoritative precedent as to
every point decided, and none of such points can be regarded as having merely the status of a dictum (See U.S. Title
Insurance and Trust Co., Cal., 44 S. Ct. 621, 265 U.S. 472, 68 L. Ed. 1110; Van Dyke v. Parker 83 F. (2d) 35) and one point
should not be denied authority merely because another point was more dwelt on and more fully argued and considered.
(Richmond Screw Anchor Co. v. U.S. 48 S. Ct. 194, 275 U.S. 331, 72 L. Ed. 303)"
It is true that in Palma-Fernandez vs. de la Paz (G.R. No. 78946, April 15, 1986, 160 SCRA 751), we had stated:
The argument that, on the basis of this provision (Section 26 of Executive Order No. 119, or the 'Reorganization Act of the
Ministry of Health'), petitioner's term of office ended on 30 January 1987 and that she continued in the performance of
her duties merely in a hold-over capacity and could be transferred to another position without violating any of her legal
rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and
would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the
1987 Constitution became effective (De Leon, et al., vs. Hon. Esguerra, et al., G.R. No. 78059, 31 August 1987, 153 SCRA
602). After the d date the provisions of the latter on security of tenure govern.
The factual situation in the two cases, however, radically differ. In the cited case, Dra. Palma-Fernandez, the petitioner,
had already been extended a permanent appointment as Assistant Director for Professional Services of the East Avenue
Medical Center but was still being transferred by the Medical Center Chief to the Research Office against her consent.
Separation from the service as a result of reorganization was not involved. The question then arose as to whether the
latter official had the authority to transfer or whether the power to appoint and remove subordinate officers and
employees was lodged in the Secretary of Health. Related to that issue was the vital one of whether or not her transfer,
effected on 29 May 1987, was tantamount to a removal without cause. Significant, too, is the fact that the transfer was
basically made "in the interest of the service" pursuant to Section 24(c) of PD No. 807, or the Civil Service Decree, and not
because she was being reorganized out by virtue of EO 119 or the "Reorganization Act of the Ministry of Health," although
the said Act was invoked after the fact. And so it was that SECTION 16 was never mentioned, much less invoked in the
Palma-Fernandez case.
Finally, on this point, it is inaccurate for the majority to state that there were no reorganization orders after ratification.
There were, namely, EO 181 (Reorganization Act of the Civil Service Commission), June 1, 1987; EO 193 (Reorganization
Act of the Office of Energy Affairs), June 10, 1987; EO 230 (Reorganization Act of NEDA), July 22, 1987; EO 262
(Reorganization Act of the Department of Local Government), July 25, 1987; EO 297 (Reorganization Act of the Office of
the Press Secretary), July 25, 1987.
The Element of Good Faith
The majority concedes that reorganization can be undertaken provided it be in good faith but concludes that
Commissioner Mison was not in good faith.
The aforesaid conclusion is contradicted by the records.
Executive Order No. 127, dated 30 January 1987, specifically authorized the reorganization of the Bureau of Customs
"structurally and functionally" and provided for the abolition of all units and positions thereof not included in the structural
organization S election 55).
As stated heretofore, it was the former Commissioner of Customs, Alexander A. Padilla who, on 24 May 1987, transmitted
to the Department of Finance for approval the proposed "position structure and staffing pattern" of the Bureau of
Customs. This was approved by the Department of Finance. Thereafter, it was transmitted to and approved by the
Department of Budget and Management on 7 September 1987 for implementation. Under the old staffing pattern, there
were 7,302 positions while under the new staffing pattern, there are 6,530 positions.
On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the Implementation of Reorganization Executive
Orders" provided:
By October 21, 1987, all employees covered by the Executive orders for each agency on reorganization shall be:
a. informed of their reappointment, or
b. offered another position in the same department or agency, or
c. informed of their termination. (emphasis supplied)
On 25 November 1987 Commissioner Mison asked for and was granted by the President an extension up to February 1988
within which to completely undertake the reorganization of the Bureau of Customs.
On 6 January 1988, he issued Bureau of Customs Memorandum "Re Guidelines on the Implementation of Reorganization
Executive Orders" reiterating the above- quoted portion of the Malacanang Memorandum of 2 October 1987. Pursuant
thereto, on 28 January 1988, Commissioner Mison addressed uniform letters of termination to the employees listed on
pages 15, 16 and 17 of the majority opinion, effective on 28 February 1988, within the extended period granted.
The records further show that upon Commissioner Mison's official inquiry, Secretary of Justice Sedfrey A. Ordoñ;ez,
rendered the following Opinion:
. . . It is believed that customs employees who are reorganized out in the course of the implementation of E.O. No. 127
(reorganizing the Department of Finance) need not be informed of the nature and cause of their separation from the
service. It is enough that they be 'informed of their termination' pursuant to section 1(c) of the Memorandum dated
October 2, 1987 of President Aquino, which reads:
1. By October 21, 1987, all employees covered by the Executive orders for each agency on reorganization shall be:
xxx xxx xxx
c) Informed of their terminations.
The constitutional mandate that 'no officer or employee of the civil service shall be renewed or suspended except for cause
as provided by law' (Sec. 2(4) (sic), Article IX-B of the 1987 Constitution) does not apply to employees who are separated
from office as a result of the reorganization of that Bureau as directed in Executive Order No. 127.
xxx xxx xxx
Regarding your (third) query, the issue as to the constitutionality of Executive Order No. 127 is set at rest, after the
Supreme Court resolved to dismiss the petition for certiorari questioning its enforceability, for lack of merit (see Jose vs.
Arroyo, et al., supra). (Opinion No. 41, s. 1988, March 3, 1988) (Emphasis supplied)
The former Chairman of the Civil Service Commission, Celerina G. Gotladera likewise periodically consulted by
Commissioner Mison, also expressed the opinion that "it is not a prerequisite prior to the separation of an employee
pursuant to reorganization that he be administratively charged." (Annex 16, p. 411, Rollo, G.R. No. 85310)
Moreover, the records show that the final selection and placement of personnel was done by a Placement Committee,
one of whose members is the Head of the Civil Service Commission Field Office, namely, Mrs. Purificacion Cuerdo The
appointment of employees made by Commissioner Mison was based on the list approved by said Placement Committee.
But the majority further faults Mison for defying the President's directive to halt further layoffs as a consequence of
reorganization, citing OP Memo of 14 October 1987, reading:
Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further
layoffs this year of personnel as a result of the government reorganization. (p. 45, Decision)
The foregoing, however, must be deemed superseded by later developments, namely, the grant to Commissioner Mison
by the President on 22 December 1987 of a grace period until the end of February 1988 within which to completely
undertake the reorganization of the Bureau of Customs, which was, in fact, accomplished by 28 February 1988.
To further show lack of good faith, the majority states that Commissioner Mison failed to observe the procedure laid down
by EO 17, supra, directing inter alia that a notice of separation be issued to an employee to be terminated indicating
therein the reason/s or ground/s for such separation. That requirement, however, does not appear in Section 59 of EO
127, which provides on the contrary "that those incumbents whose positions are not included in the new position
structure and staffing pattern of the Ministry or who are not reappointed shall be deemed separated from the service."
The right granted by EO 17 to an employee to be informed of the ground for his separation must be deemed to have been
revoked by the repealing clause of EO 127 (Section 67) providing that "all laws, ordinances or parts thereof, which are
inconsistent with this Executive Order, are hereby repealed and modified accordingly."
Moreover, Section 11 of EO 17 explicitly excepts from its coverage a reorganization pursuant to EO 5. Thus
The Executive Order shall not apply to elective officials or those designated to replace them, presidential appointees,
casual and contractual employees, or officials and employees removed pursuant to desciplinary proceedings under the
Civil Service law and rules, and to those laid off as a result of reorganization undertaken pursuant to Executive Order No.
5. (Emphasis ours)
That EO 127 was issued pursuant to or in implementation of EO 5, is shown by its introductory portion reading:
Recalling that the reorganization of the government is mandated expressly by Article II, Section 1 (a) and Article III of the
Freedom Constitution;
Having in mind that pursuant to Executive order No. 5 (1986), it is directed that the necessary and proper changes in the
organizational and functional structures of the government, its agencies and instrumentalities, be effected in order to
promote efficiency and effectiveness in the delivery of public service; (Italics supplied)
Constitutionality of Republic Act No. 6656
The majority also relies on Republic Act No. 6656 entitled an "Act to Protect the Security of Tenure of Civil Service Officers
and Employees in the Implementation of Government Reorganization," particularly Section 2 thereof, to test the good
faith of Commissioner Mison.
We are of the view, however, that in providing for retroactivity in its Section 13, RA 6656 clashes frontally with SECTION
16.
1) SECTION 16 clearly recognizes that career service employees separated from the service by reason of the "complete
reorganization of the government" pursuant to Proclamation No. 3 may be separated NOT FOR CAUSE. And yet, RA 6656
requires the exact opposite — separation FOR CAUSE. It would not be remiss to quote the provision again:
SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and
hearing. A valid cause for removal exist when, pursuant to a bona fide reorganization, a position has been abolished or
rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the
service, or other lawful causes allowed by the Civil Service law. The existence of any or some of the following circumstances
may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for
reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions
in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished and another
performing substantially the same functions is created; (c) Where incumbents are replaced by those less qualified in terms
of status of appointment, performance and merit; (d) Where there is a reclassification of offices in the department or
agency concerned and the reclassified offices perform substantially the same functions as the original offices; (e) Where
the removal violates the order of separation provided in Section 3 hereof. (Republic Act No. 6156)
The standards laid down are the "traditional" criteria for removal of employees from the career service, e.g. valid cause,
due notice and hearing, abolition of, or redundancy of offices. Proclamation No. 3, on the other hand, effectuates the
"progressive" type of reorganization dictated by the exigencies of the historical and political upheaval at the time. The
"traditional" type is limited in scope. It is concerned with the individual approach where the particular employee involved
is charged administratively and where the requisites of notice and hearing have to be observed. The "progressive" kind of
reorganization, on the other hand, is the collective way. It is wider in scope, and is the reorganization contemplated under
SECTION 16.
2) By providing for reinstatement in its Section 9, RA 6656 adds a benefit not included in SECTION 16. The benefits granted
by the latter provision to employees separated NOT FOR CAUSE but as a consequence of reorganization are "separation
pay, retirement, and other benefits accruing to them under the laws of general application in force at the time of their
separation." The benefit of reinstatement is not included. RA 6656, however, allows reinstatement. That it cannot do
because under SECTION 16, it is not one of the laws "in force at the time of their separation."
The Constitution is the paramount law to which all laws must conform. It is from the Constitution that all statutes must
derive their bearings. The legislative authority of the State must yield to the expression of the sovereign will. No statutory
enactment can disregard the Charter from which it draws its own existence (Phil. Long Distance Telephone Co. v. Collector
of Internal Revenue, 90 Phil. 674 [1952]). But, that is exactly what RA 6656 does in providing for retroactivity — it
disregards and contravenes a Constitutional imperative. To save it, it should be applied and construed prospectively and
not retroactively notwithstanding its explicit provision. Then, and only then, would it make good law.
Effects of Reorganization
To be sure, the reorganization could effect the tenure of members of the career service as defined in Section 5, Article IV
of Presidential Decree No. 807, and may even result in the separation from the office of some meritorious employees. But
even then, the greater good of the greatest number and the right of the citizenry to a good government, and as they
themselves have mandated through the vehicle of Proclamation No. 3, provide the justification for the said injury to the
individual. In terms of values, the interest of an employee to security of tenure must yield to the interest of the entire
populace and to an efficient and honest government.
But a reorganized employee is not without rights. His right lies in his past services, the entitlement to which must be
provided for by law. EO 127 provides for the same in its Section 59, and so does SECTION 16 when the latter specified that
career civil service employees separated from the service not for cause:
shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of
general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be
considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including
government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose
resignation, tendered in line with the existing policy, has been accepted.
This is a reward for the employee's past service to the Government. But this is all There is no vested property right to be
reemployed in a reorganized office.
The right to an office or to employment with government or any of its agencies is not a vested property right, and removal
therefrom will not support the question of due process" Yantsin v. Aberdeen, 54 Wash 2d 787, 345 P 2d 178). A civil service
employee does not have a constitutionally protected right to his position, which position is in the nature of a public office,
political in character and held by way of grant or privilege extended by government; generally he has been held to have
no property right or vested interest to which due process guaranties extend (See Taylor v. Beckham 178 U.S. 548, 44 L Ed.
1187; Angilly v. US CA2 NY 199 F 2d 642; People ex. rel. Baker v. Wilson, 39 III App 2d 443, 189 NE 2d 1; Kelliheller v. NY
State Civil Service Com 21 Misc 2d 1034, 194 NYS 2d 89).
To ensure, however, that no meritorious employee has been separated from the service, there would be no harm, in fact,
it could do a lot of good, if the Commissioner of Customs reviews the evaluation and placements he has so far made and
sees to it that those terminated are included in a consolidated list to be given preference by departments who are
recruiting (Section 2[a], BOC Memorandum, January 6,1988).
Conclusion
Premises considered, and subject to the observation hereinabove made, it is our considered view that the separation from
the service "NOT FOR CAUSE but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986"
of the affected officers and employees of the Bureau of Customs should be UPHELD, and the Resolutions of the Civil
Service Commission, dated 30 June 1988, 20 September 1988, and 16 November 1988 should be SET ASIDE for having
been issued in grave abuse of discretion.
Republic Act No. 6656, in so far as it provides for retroactivity, should be declared UNCONSTITUTIONAL for being
repugnant to the letter and spirit of Section 16, Article XVIII of the 1987 Constitution.
Fernan, C.J., Narvasa, Feliciano, Regalado, JJ., concur.
[G.R. No. 124374. December 15, 1999]
ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE
COMMISSION, EDUARDO A. TAN, LOURDES M. DE GUZMAN, MANUEL CHUA, ANSELMO MATEO, CHRISTOPHER
SANTOS, BUENAVENTURA PUNAY, ENRICO BANDILLA, FELINO CAMACHO, DANTE E. DEOQUINO, JAIME P. URCIA, JESUS
B. REGONDOLA, ROMUALDO LIBERATO, CESAR FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR
DACIO, respondents.
[G.R. No. 126354. December 15, 1999]
CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A. MATHAY, JR., respondents.
[G.R. No. 126366. December 15, 1999]
ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE
COMMISSION and SANDY C. MARQUEZ, respondents.
DECISION
YNARES-SANTIAGO, J.:
Before this Court are three consolidated petitions[1] filed under Rule 45 of the Revised Rules of Court.
The facts behind the consolidated petitions are undisputed.
During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents[2] to positions in the Civil
Service Unit (CSU) of the local government of Quezon City. Civil Service Units were created pursuant to Presidential Decree
No. 51 which was allegedly signed into law on November 15 or 16, 1972.
On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential Decree No. 51 was never
published in the Official Gazette. Therefore, conformably with our ruling in Tanada vs. Tuvera[3] the presidential decree is
deemed never in force or effect and therefore cannot at present, be a basis for establishment of the CSUs . . . .[4]
On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or
Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments
in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law. Among those
affected by the revocation of appointments are private respondents in these three petitions.
For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance
No. NC-140, Series of 1990, which established the Department of Public Order and Safety (DPOS).
At the heart of these petitions is Section 3 of the Ordinance which provides:
Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-Squatting and Surveillance and
Enforcement Team, and Disaster Coordinating Council are hereby absorbed into the department of public order and safety
established under Section one hereof to be given appropriate position titles without reduction in salary, seniority rights
and other benefits. Funds provided for in the 1990 Budget for the absorbed offices shall be used as the initial budgetary
allocation of the Department. (Underscoring ours).
Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds
for the new DPOS and the insufficiency of regular and permanent positions created.
Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period
of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the period of January 1, 1992
to June 30, 1992.
On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992, Mayor Mathay again
renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these
appointments, however, were no longer renewed.
The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents appointments became the seed of
discontent from which these three consolidated petitions grew.
We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly.
G.R. No. 124374 and G.R. No. 126366

After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service
Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was
automatic, pursuant to the provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990,[5] and ordering
their reinstatement to their former positions in the DPOS.[6] Petitioner brought petitions for certiorari to this Court,[7] to
annul the resolutions but, in accordance with Revised Administrative Circular No. 1-95, the petition were referred to the
Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari.
In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil
Service Commission has the authority to direct him to reinstate private respondents in the DPOS.
We agree with petitioner.
The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which
became effective only on January 1, 1992, when the material events in this case transpired.
Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140
and in so doing ordered petitioner to reinstate private respondents to positions in the DPOS. Section 3 of the
said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs
the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to
positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly
created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively
with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient
of enacting ordinances that provide for the absorption of specific persons to certain positions.
In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS
without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping
statement that the doctrine of separation of powers is not applicable to local governments.[8] We are unable to agree. The
powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337.
The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive.[9] The
power of the city council or sanggunian, on the other hand, is limited to creating,consolidating and reorganizing city
officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of
B.P. 337 which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio unius est exclusio
alterius.[10] Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it
would have said so in no uncertain terms.
By ordering petitioner to reinstate private respondents pursuant to Section 3 of the Ordinance, the Civil Service
Commission substituted its own judgment for that of the appointing power. This cannot be done. In a long line of
cases,[11] we have consistently ruled that the Civil Service Commissions power is limited to approving or disapproving an
appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil
Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment
process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing
authority.
The Civil Service Commission argues that it is not substituting its judgment for that of the appointing power and that it is
merely implementing Section 3 of Ordinance NC-140.
The Ordinance refers to the personnel of the CSU, the identities of which could not be mistaken. The resolutions of the
Civil Service Commission likewise call for the reinstatement of named individuals. There being no issue as to who are to
sit in the newly created DPOS, there is therefore no room left for the exercise of discretion. In Farinas vs. Barba,[12] we
held that the appointing authority is not bound to appoint anyone recommended by the sanggunian concerned, since the
power of appointment is a discretionary power.
When the Civil Service Commission ordered the reinstatement of private respondents, it technically issued a new
appointment.[13] This task, i.e. of appointment, is essentially discretionary and cannot be controlled even by the courts as
long as it is properly and not arbitrarily exercised by the appointing authority.
In Apurillo vs. Civil Service Commission, we held that appointment is essentially a discretionary power and must be
performed by the officer in which it is vested.[14]
The above premises considered, we rule that the Civil Service Commission has no power to order petitioner Ismael A.
Mathay, Jr. to reinstate private respondents.
Petitioner similarly assails as error the Court of Appeals ruling that private respondents should be automatically absorbed
in the DPOS pursuant to Section 3 of the Ordinance.
In its decision of March 21, 1996 the Court of Appeals held:
It is clear however, that Ordinance No. NC-140, absorbing the present personnel of the Civil Security Agent Unit in the
DPOS was earlier enacted, particularly on March 27, 1990, thus, private respondents were still holders of de jure
appointments as permanent regular employees at the time, and therefore, by operation of said Ordinance private
respondents were automatically absorbed in the DPOS effectively as of March 27, 1990.[15] (Underscoring ours.)
The decision is based on the wrong premise.
Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the
CSU never legally came into existence, the private respondents never held permanent positions. Accordingly, as petitioner
correctly points out,[16] the private respondents appointments in the defunct CSU - - -
were invalid ab initio. Their seniority rights and permanent status did not arise since they have no valid appointment. For
them to enter the Civil Service after the revocation and cancellation of their invalid appointment, they have to be extended
an original appointment, subject again to the attesting power of the Civil Service Commission.
Being then not members of the Civil Service as of June 4, 1991, they cannot be automatically
absorbed/reappointed/appointed/reinstated into the newly created DPOS. (Underscoring ours)
It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or
impliedly creating and conferring it.[17] Since Presidential Decree 51 creating the CSU never became law, it could not be a
source of rights. Neither could it impose duties. It could not afford any protection. It did not create an office. It is as
inoperative as though it was never passed.
In Debulgado vs. Civil Service Commission[18] we held that a void appointment cannot give rise to security of tenure on the
part of the holder of the appointment.
While the Court of Appeals was correct when it stated that the abolition of an office does not mean the invalidity of
appointments thereto,[19] this cannot apply to the case at bar. In this case, the CSU was not abolished. It simply did not
come into existence as the Presidential Decree creating it never became law.
At the most, private respondents held temporary and contractual appointments. The non-renewal of these appointments
cannot therefore be taken against petitioner. In Romualdez III vs. Civil Service Commission[20] we treated temporary
appointments as follows:
The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his
former permanent position. When the temporary appointment was not renewed, the petitioner had no cause to demand
reinstatement thereto. (Underscoring ours.)
Another argument against the concept of automatic absorption is the physical and legal impossibility given the number of
available positions in the DPOS and the number of personnel to be absorbed.[21] We note that Section 1 of Ordinance NC-
140 provides:
There is hereby established in the Quezon City Government the Department of Public Order and Safety whose
organization, structure, duties, functions and responsibilities are as provided or defined in the attached supporting
documents consisting of eighteen (18) pages which are made integral parts of this Ordinance.
A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the position of Security
Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent with a monthly salary
of P3,102.00. The limited number of slots provided in the Ordinance renders automatic absorption unattainable,
considering that in the defunct CSU there are twenty Security Officers with a monthly salary of P4,418.00 and six Security
Agents with a monthly salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate
the personnel of the defunct CSU, making automatic absorption impossible.
Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law creating it, or the
DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to discuss whether their
acceptance of the contractual appointments constitutes an abandonment or waiver of such positions. It escapes us how
one can relinquish or renounce a right one never possessed. A person waiving must actually have the right which he is
renouncing.
G.R. 126354

In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5, 1996,
which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil Service Commission has no authority to
compel the mayor of Quezon City to reinstate Jovito C. Labajo to the DPOS.
The standing of petitioner Civil Service Commission to bring this present appeal is questionable.
We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has opted not to appeal.
Basic is the rule that every action must be prosecuted or defended in the name of the real party in interest.[22] A real party
in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails
of the suit.
In Ralla vs. Ralla we defined interest as material interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or mere incidental interest.[23]As a general rule, one having no
right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an action.
In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party in interest. It is Jovito
C. Labajo who will be benefited or injured by his reinstatement or non-reinstatement.
We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro Dacoycoy[24] which
overturned our rulings in Paredes vs. Civil Service Commission,[25] Mendez vs. Civil Service Commission[26] and Magpale vs.
Civil Service Commission.[27] In Dacoycoy, we affirmed the right of the Civil Service Commission to bring an appeal as the
aggrieved party affected by a ruling which may seriously prejudice the civil service system.
The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative case involving
nepotism whose deleterious effect on government cannot be overemphasized. The subject of the present case, on the
other hand, is reinstatement.
We fail to see how the present petition, involving as it does the reinstatement or non-reinstatement of one obviously
reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling in Dacoycoy does not apply.
To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil
Service Commission was included only as a nominal party. As a quasi-judicial body, the Civil Service Commission can be
likened to a judge who should detach himself from cases where his decision is appealed to a higher court for review.[28]
In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became
an advocate. Its mandated function is to hear and decide administrative cases instituted by or brought before it directly
or on appeal, including contested appointments and to review decisions and actions of its offices and agencies,[29] not to
litigate.
Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354.
WHEREFORE, the petitions of Ismael A. Mathay in G.R. No.124374 and G.R. No. 126366 are GRANTED and the decisions
of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET ASIDE.
The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing to sue. The assailed
decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED.
No costs.
SO ORDERED.

G.R. No. 86564 August 1, 1989

RAMON L. LABO, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL, respondents
Estelito P. Mendoza for petitioner.
Rillera and Quintana for private respondent.

CRUZ, J.:
The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his citizenship as
a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The
issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this matter, considering that the
petition for quo warranto against him was not filed on time.
It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment of the
filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough, all of P300.00
only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it is shown that the
petition was indeed filed beyond the reglementary period, there is no question that this petition must be granted and the
challenge abated.
The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20, 1988. The petition for quo
warranto was filed by the private respondent on January 26, 1988, but no filing fee was paid on that date. This fee was
finally paid on February 10, 1988, or twenty-one days after his proclamation. As the petition by itself alone was ineffectual
without the filing fee, it should be deemed filed only when the fee was paid. This was done beyond the reglementary
period provided for under Section 253 of the Omnibus Election Code reading as follows:
SEC. 253. Petition for quo warranto. — Any voter contesting the election of a Member of the Batasang Pambansa, regional,
provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission within ten days after the proclamation of the result of the election.
The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural Rules of the
COMELEC providing that —
Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in the amount of Three
Hundred Pesos (P300.00) and the legal research fee as required by law.
and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the timeliness
of the filling of the petition itself. He cites many rulings of the Court to this effect, specifically Manchester v. Court of
Appeals. 1
For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was flied ahead of
time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate Annulment of Proclamation
and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a pre-proclamation controversy and
docketed it as SPC Case No. 88-288. No docket fee was collected although it was offered. It was only on February 8, 1988,
that the COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19,
serving him notice on February 10, 1988. He immediately paid the filing fee on that date.
The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-
proclamation controversy, the time for filing an election protest or quo warranto proceeding was deemed suspended
under Section 248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC Rules of
Procedure cited by the petitioner, became effective only on November 15, 1988, seven days after publication of the said
Rules in the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January 26,1988,
when he filed his petition with the COMELEC.
In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of filing fees was
still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent COMELEC, promulgated on January
12, 1988, and February 26, 1980, respectively. To this, the private respondent counters that the latter resolution was
intended for the local elections held on January 30, 1980, and did not apply to the 1988 local elections, which were
supposed to be governed by the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988,
following the lapse of seven days after its publication as required by RA No. 6646, otherwise known as the Electoral Reform
Law of 1987, which became effective on January 5, 1988. Its Section 30 provides in part:
Sec. 30. Effectivity of Regulations and Orders of the Commission. — The rules and regulations promulgated by the
Commission shall take effect on the seventh day after their publication in the Official Gazette or in at least (2) daily
newspapers of general circulation in the Philippines.
The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We
agree with the respondents that the fee was paid during the ten-day period as extended by the pendency of the petition
when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the payment of a filing fee.
At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees in quo
warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res.
No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the
Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed.
The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the resolutions became effective "immediately upon
approval" simply because it was so provided therein. We held in that case that publication was still necessary under the
due process clause despite such effectivity clause.
In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not imputable
to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the timely payment of the
filing fee as a precondition for the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v.
Asuncion, 5 however this Court, taking into account the special circumstances of that case, declared:
This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed
filing fee. However, the court may allow the payment of the said fee within a reasonable time. In the event of non-
compliance therewith, the case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988, thus:
Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are not paid, the Commission may refuse to take
action thereon until they are paid and may dismiss the action or the proceeding. (Emphasis supplied.)
The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for failure
to pay the filing fee on time, the petitioner would at the same time minimize his alleged lack of citizenship as "a futile
technicality," It is regrettable, to say the least, that the requirement of citizenship as a qualification for public office can
be so demeaned. What is worse is that it is regarded as an even less important consideration than the reglementary period
the petitioner insists upon.
This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of the quo
warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and considering the
necessity for an early resolution of that more important question clearly and urgently affecting the public interest, we
shall directly address it now in this same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the nature of the instant case, it would appear that our sole function in this
proceeding should be to resolve the single issue of whether or not the Court of Appeals erred in ruling that the motion for
new trial of the GSIS in question should indeed be deemed pro forma.But going over the extended pleadings of both
parties, the Court is immediately impressed that substantial justice may not be timely achieved, if we should decide this
case upon such a technical ground alone. We have carefully read all the allegations and arguments of the parties, very
ably and comprehensively expounded by evidently knowledgeable and unusually competent counsel, and we feel we can
better serve the interests of justice by broadening the scope of our inquiry, for as the record before us stands, we see that
there is enough basis for us to end the basic controversy between the parties here and now, dispensing, however, with
procedural steps which would not anyway affect substantially the merits of their respective claims. 6
xxx
While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the period for appeal to lapse,
the more correct procedure was for the respondent court to forward the case to the proper court which was the Court of
Appeals for appropriate action. Considering, however, the length of time that this case has been pending, we apply the
rule in the case of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court
of Appeals, (135 SCRA 37) which states:
... it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding
leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded
to the trial court only to have its decision raised again to the Intermediate Appellate Court and from there to this Court.
(p. 43)
Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No. 50141, January 29, 1988), we stated
that:
... But all those relevant facts are now before this Court. And those facts dictate the rendition of a verdict in the petitioner's
favor. There is therefore no point in referring the case back to the Court of Appeals. The facts and the legal propositions
involved will not change, nor should the ultimate judgment. Considerable time has already elapsed and, to serve the ends
of justice, it is time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108
Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City
of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162).lâwphî1.ñèt Sound practice seeks to accommodate the
theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in
the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that
where the dictates of justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat v. Republic, 21
SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do
demand that this Court act, and act with finality. 7
xxx
Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position
to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the
expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for
further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public
interest demands an early disposition of the case or where the trial court had already received all the evidence of the
parties. 8
This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed that a
foreigner is holding a public office.
We also note in his Reply, the petitioner says:
In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its own" private respondent's
repeated assertion that petitioner is no longer a Filipino citizen. In so doing, has not respondent COMELEC effectively
disqualified itself, by reason of prejudgment, from resolving the petition for quo warranto filed by private respondent still
pending before it? 9
This is still another reason why the Court has seen fit to rule directly on the merits of this case.
Going over the record, we find that there are two administrative decisions on the question of the petitioner's citizenship.
The first was rendered by the Commission on Elections on May 12, 1982, and found the petitioner to be a citizen of the
Philippines. 10 The second was rendered by the Commission on Immigration and Deportation on September 13, 1988, and
held that the petitioner was not a citizen of the Philippines. 11
The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners Pabalate Savellano and
Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the petition "without prejudice to
the issue of the respondent's citizenship being raised anew in a proper case." Commissioner Sagadraca reserved his vote,
while Commissioner Felipe was for deferring decision until representations shall have been made with the Australian
Embassy for official verification of the petitioner's alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners Alano and
Geraldez of the Commission on Immigration and Deportation. It is important to observe that in the proceeding before the
COMELEC, there was no direct proof that the herein petitioner had been formally naturalized as a citizen of Australia. This
conjecture, which was eventually rejected, was merely inferred from the fact that he had married an Australian citizen,
obtained an Australian passport, and registered as an alien with the CID upon his return to this country in 1980.
On the other hand, the decision of the CID took into account the official statement of the Australian Government dated
August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of that date by
reason of his naturalization in 1976. That statement 12 is reproduced in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment signed and sealed
by the Australian Minister of State for Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent
signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983, do hereby provide the
following statement in response to the subpoena Testificandum dated 9 April 1984 in regard to the Petition for
disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the statement is true and
correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines to an Australian citizen.
As the spouse of an Australian citizen, he was not required to meet normal requirements for the grant of citizenship and
was granted Australian citizenship by Sydney on 28 July 1976.
B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of allegiance or make an
affirmation of allegiance. The wording of the oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need
not necessarily have any effect on his former nationality as this would depend on the citizenship laws of his former country.
C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on the ground that the
marriage had been bigamous.
D) According to our records LABO is still an Australian citizen.
E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian Citizenship Act 1948
which relates to the giving of false or misleading information of a material nature in respect of an application for Australian
citizenship. If such a prosecution was successful, he could be deprived of Australian citizenship under Section 21 of the
Act.
F) There are two further ways in which LABO could divest himself of Australian citizenship:
(i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the Australian Citizenship
Act, or
(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act other than marriage, then he
would automatically lose as Australian citizenship under Section 17 of the Act.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12th
DAY OF APRIL 1984. DONE AT MANILA IN THE PHILIPPINES.
(Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by the Department of
Foreign Affairs reading as follows: 13
Sir:
With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with the Australian
Government through the Embassy of the Philippines in Canberra has elicited the following information:
1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.
2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of allegiance or make an
affirmation of allegiance which carries a renunciation of "all other allegiance.
Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR. Assistant Secretary
The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows:
OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty
Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the
laws of Australia and fulfill my duties as an Australian citizen. 14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be faithful and bear true
allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I
will faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15
The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained Australian
Passport No. 754705, which he used in coming back to the Philippines in 1980, when he declared before the immigration
authorities that he was an alien and registered as such under Alien Certificate of Registration No. B-323985. 16 He later
asked for the change of his status from immigrant to a returning former Philippine citizen and was granted Immigrant
Certificate of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a number of
sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of the barangay court on the ground
that he was a foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the petitioner of
his citizenship, although, as earlier noted, not all the members joined in this finding. We reject this ruling as totally
baseless. The petitioner is not an unlettered person who was not aware of the consequences of his acts, let alone the fact
that he was assisted by counsel when he performed these acts.
The private respondent questions the motives of the COMELEC at that time and stresses Labo's political affiliation with
the party in power then, but we need not go into that now.
There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too
must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several
cases. 19 Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer,
having been invoked only when the petitioner filed his reply 20 to the private respondent's comment. Besides, one of the
requisites of res judicata, to wit, identity of parties, is not present in this case.
The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of
Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of
that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process,
simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally
took the Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other
allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia ..."
and to fulfill his duties "as an Australian citizen."
The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did not divest
him of his Philippine citizenship. Such a specious argument cannot stand against the clear provisions of CA No. 63, which
enumerates the modes by which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign
country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or
laws of a foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this connection that
under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and
shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his
marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine
citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his
adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and
willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may have been subsequently
rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by
naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired
Philippine citizenship by any of these methods. He does not point to any judicial decree of naturalization as to any statute
directly conferring Philippine citizenship upon him. Neither has he shown that he has complied with PD No. 725, providing
that:
... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through
repatriation by applying with the Special Committee on Naturalization created by Letter of Instruction No. 270, and, if
their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they
shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall
thereupon cancel their certificate of registration. (Emphasis supplied.)
That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his alien
certificate of registration. And that is also the reason we must deny his present claim for recognition as a citizen of the
Philippines.
The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In
fact, he was not even a qualified voter under the Constitution itself because of his alienage. 21 He was therefore ineligible
as a candidate for mayor of Baguio City, under Section 42 of the Local Government Code providing in material part as
follows:
Sec. 42. Qualifications. — An elective local official must be a citizen of the Philippines, at least twenty-three years of age
on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to
be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read
and write English, Filipino, or any other local language or dialect.
The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the
electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be accurate, it was not as loud as
all that, for his lead over the second-placer was only about 2,100 votes. In any event, the people of that locality could not
have, even unanimously, changed the requirements of the Local Government Code and the Constitution. The electorate
had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a stateless individual
owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the
Philippines have that privilege over their countrymen.
The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only
strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him.
These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is
deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not
possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and,
although elected, is not now qualified to serve as such.
Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace
the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in
the election, he was obviously not the choice of the people of Baguio city.
The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 decided in 1985. In that case, the
candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a
turncoat and considered a non-candidate, were all disregarded as stray. In effect, the second placer won by default. That
decision was supported by eight members of the Court then 23 with three dissenting 24 and another two reserving their
vote. 25 One was on official leave. 26
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo
v. Ramos, 27 Which represents the more logical and democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio vs. Paredes 28 was supported by ten members of the Court 29 without any dissent, although
one reserved his vote, 30 another took no part 31 and two others were on leave. 32 There the Court held:
... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate
who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in
the election for that office, and it is a fundamental Idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in
the election. (20 Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible
for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number
of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts
a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was
alive, qualified, or eligible, they should not be treated as stray, void or meaningless.
It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift
that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he must not
lightly yield this precious advantage, rejecting it for another land that may offer him material and other attractions that
he may not find in his own country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his
allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be welcomed back with
open arms once his taste for his adopted country turns sour or he is himself disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only
after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms
once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to
public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore DISQUALIFIED
from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and surrender the same to the Vice-
Mayor of Baguio City, once this decision becomes final and executory. The temporary restraining order dated January 31,
1989, is LIFTED.
Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griñ;o-Aquino
Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTTIERREZ, JR., J.,concurring:

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire of what would otherwise
be insuperable procedural obstacles, I am constrained to concur in the Court's decision so forcefully and felicitously
written by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can countenance a citizen of a foreign
country or one who has renounced Filipino citizenship sitting as the mayor of one of the most important cities in the
Philippines.
What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the citizenship of the
petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction of the COMELEC and remanding the
case for further proceedings and the rendition of a decision. Under Section 7, Article IXA of the Constitution, a decision,
order, or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty
day from receipt of a copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as
yet, be elevated to us for review. I, therefore, reiterate my statement in Frivaldo that my concurrence is limited only to
cases involving citizenship and disloyalty but not to any of the many other grounds for disqualification cited in my
concurring opinion.
Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by the singular
achievements in the beautification of Baguio City, in the peace and order situation, and in the resurgence of civic pride so
visible to anyone who has gone up to Baguio since Mr. Labo assumed the mayorship. However, I see no other way this
case can be resolved except by adopting a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor
of Baguio City. I join the rest of the Court.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griñ;o-Aquino
Medialdea and Regalado, JJ., concur.

Separate Opinions
GUTTIERREZ, JR., J.,concurring:
As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire of what would otherwise
be insuperable procedural obstacles, I am constrained to concur in the Court's decision so forcefully and felicitously
written by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can countenance a citizen of a foreign
country or one who has renounced Filipino citizenship sitting as the mayor of one of the most important cities in the
Philippines.
What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the citizenship of the
petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction of the COMELEC and remanding the
case for further proceedings and the rendition of a decision. Under Section 7, Article IXA of the Constitution, a decision,
order, or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty
day from receipt of a copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as
yet, be elevated to us for review. I, therefore, reiterate my statement in Frivaldo that my concurrence is limited only to
cases involving citizenship and disloyalty but not to any of the many other grounds for disqualification cited in my
concurring opinion.
Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by the singular
achievements in the beautification of Baguio City, in the peace and order situation, and in the resurgence of civic pride so
visible to anyone who has gone up to Baguio since Mr. Labo assumed the mayorship. However, I see no other way this
case can be resolved except by adopting a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor
of Baguio City. I join the rest of the Court.

[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.:
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
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
banc7 affirmed 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."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand briefly be capsulized in the following propositions":15
"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;
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;
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
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.
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:
"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.)
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."
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.
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.
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?
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
by direct 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 non-Filipino 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 ones 25 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 re-
assumed 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 stead-fastly 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
Code38 gives 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 "judicially-declared" 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
past events 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.48The 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?"49 We 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 from the assailed Resolution dated December 19, 1995:51
"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 the May 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.58Thus, 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 vice-governor 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, single-mindedly 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.
Davide, Jr., J. dissenting opinion
Puno., J. concurring opinion
Francisco, Hermosisima, Jr., and Torres, JJ., concur.
Padilla, Regalado, Romero, and Bellosillo, JJ., pro hac vice.
Melo, Vitug, and Kapunan, JJ., concur in the result.
Narvasa, C.J. and Mendoza, J., took no part.

1
Composed of Pres. Comm. Regalado E. Maambong, ponente; Comm. Graduacion A.R. Claravall, concurring, and Comm.
Julio F. Desamito, dissenting.
2
In SPC No. 95-317, entitled Juan G. Frivaldo, petitioner, vs. Raul R. Lee, respondent; Rollo, pp. 110-129.
3
Signed by Chairman Bernardo P. Pardo, Comms. Regalado E. Maambong, Remedios A. Salazar-Fernando, Manolo B.
Gorospe and Teresita Dy-Liaco Flores. Chairman Pardo certified that "Commissioner Julio F. Desamito was on official travel
at the time of the deliberation and resolution of this case. However, the Commission has reserved to Comm. Desamito
the right to submit a dissenting opinion." Rollo, pp. 159-171.
4
Rollo, pp. 46-49.
5
Rollo, pp. 50-55. The Second Division was composed of Pres. Comm. Remedies A. Salazar-Fernando, ponente; Comm.
Teresita Dy-Liaco Flores, concurring, and Comm. Manolo B. Gorospe ("on official business").
6
Frivaldo was naturalized as an American citizen on January 20, 1983. In G.R. No. 87193, Frivaldo vs. Commission on
Elections, 174 SCRA 245 (June 23, 1989), the Supreme Court, by reason of such naturalization, declared Frivaldo "not a
citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon." On February
28, 1992, the Regional Trial Court of Manila granted the petition for naturalization of Frivaldo. However, the Supreme
Court in G.R. No. 104654, Republic of the Philippines vs. De la Rosa, et al, 232 SCRA 785 (June 6,1994), overturned this
grant, and Frivaldo was "declared not a citizen of the Philippines" and ordered to vacate his office. On the basis of this
latter Supreme Court ruling, the Comelec disqualified Frivaldo in SPA No. 95-028.
7
Signed by Chairman Bernardo P. Pardo and the six incumbent commissioners, namely, Regalado E. Maambong, Remedios
A. Salazar-Femando, Manolo B. Gorospe, Graduacion A. Reyes-Claravall, Julio F. Desamito and Teresita Dy-Liaco
Flores; Rollo, pp. 56-57.
8.
Rollo, p. 60.
9
Rollo, pp. 61-67.
10
Rollo, pp. 86-87. The Comelec considered the votes cast for Frivaldo as "stray votes," and thus Lee was held as having
garnered the "highest number of votes."
11
Rollo, pp. 88-97. This is the forerunner of the present case.
12
211 SCRA 297 (July 3, 1992) and 176 SCRA 1 (August 1, 1989).
13
Rollo, pp. 110-128.
14
Rollo, pp. 159-170.
15
Rollo, pp. 16-17; petition, pp. 14-15.
16
Rollo, pp. 10-15. This is the same resolution referred to in footnote no. 5.
17
Rollo, pp. 16-17. This is the same resolution referred to in footnote no. 7.
18
Rollo, pp. 18-21. This is signed also by the Chairman and the six other Comelec Commissioners
19
Republic Act No. 7160.
20
See footnote no. 6, supra.
21
In debunking Frivaldo's claim of citizenship, this Court in G.R. No. 87193, supra, p. 254, observed that "(i)f he (Frivaldo)
really wanted to disavow his American citizenship and reacquire Philippine citizenship, petitioner should have done so in
accordance with the laws of our country. Under C.A. No. 63 as amended by C.A. No. 473 and P.D. 725, Philippine citizenship
may be reacquired by direct act of Congress, by naturalization, or by repatriation."
22
Supra, p. 794.
23
Petition, p. 27; Rollo, p. 29.
24
The full text of said memorandum reads as follows:
"MEMORANDUM
TO : The Solicitor General
The Undersecretary of Foreign Affairs
The Director-General

[G.R. No. 142840. May 7, 2001]

ANTONIO BENGSON III, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C.
CRUZ, respondents.
DECISION
KAPUNAN, J.:
The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the constitutional requirement that "no
person shall be a Member of the House of Representatives unless he is a natural-born citizen."[1]
Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente, Tarlac, on April 27, 1960, of
Filipino parents. The fundamental law then applicable was the 1935 Constitution.[2]
On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps and, without the consent of
the Republic of the Philippines, took an oath of allegiance to the United States.As a consequence, he lost his Filipino
citizenship for under Commonwealth Act No. 63, Section 1(4), a Filipino citizen may lose his citizenship by, among others,
"rendering service to or accepting commission in the armed forces of a foreign country." Said provision of law reads:
Section 1. How citizenship may be lost. -- A Filipino citizen may lose his citizenship in any of the following ways and/or
events:
xxx
(4) By rendering services to, or accepting commission in, the armed forces of a foreign country: Provided, That the
rendering of service to, or the acceptance of such commission in, the armed forces of a foreign country, and the taking of
an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his
Philippine citizenship if either of the following circumstances is present:
(a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with said foreign country; or
(b) The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the
Philippines: Provided, That the Filipino citizen concerned, at the time of rendering said service, or acceptance of said
commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with his service
to said foreign country; And provided, finally, That any Filipino citizen who is rendering service to, or is commissioned in,
the armed forces of a foreign country under any of the circumstances mentioned in paragraph (a) or (b), shall not be
permitted to participate nor vote in any election of the Republic of the Philippines during the period of his service to, or
commission in, the armed forces of said country. Upon his discharge from the service of the said foreign country, he shall
be automatically entitled to the full enjoyment of his civil and political rights as a Filipino citizen x x x.
Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his naturalization as a U.S. citizen
on June 5, 1990, in connection with his service in the U.S. Marine Corps.
On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation under Republic Act No.
2630.[3] He ran for and was elected as the Representative of the Second District of Pangasinan in the May 11, 1998
elections. He won by a convincing margin of 26,671 votes over petitioner Antonio Bengson III, who was then running for
reelection.
Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of Representatives Electoral
Tribunal (HRET) claiming that respondent Cruz was not qualified to become a member of the House of Representatives
since he is not a natural-born citizen as required under Article VI, Section 6 of the Constitution.[4]
On March 2, 2000, the HRET rendered its decision[5] dismissing the petition for quo warranto and declaring respondent
Cruz the duly elected Representative of the Second District of Pangasinan in the May 1998 elections. The HRET likewise
denied petitioner's motion for reconsideration of the decision in its resolution dated April 27, 2000.[6]
Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the following grounds:
1. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it ruled
that private respondent is a natural-born citizen of the Philippines despite the fact that he had ceased being such in view
of the loss and renunciation of such citizenship on his part.
2. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it
considered private respondent as a citizen of the Philippines despite the fact that he did not validly acquire his Philippine
citizenship.
3. Assuming that private respondent's acquisition of Philippine citizenship was invalid, the HRET committed serious errors
and grave abuse of discretion, amounting to excess of jurisdiction, when it dismissed the petition despite the fact that
such reacquisition could not legally and constitutionally restore his natural-born status.[7]
The issue now before us is whether respondent Cruz, a natural-born Filipino who became an American citizen, can still be
considered a natural-born Filipino upon his reacquisition of Philippine citizenship.
Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino since he lost his Philippine
citizenship when he swore allegiance to the United States in 1995, and had to reacquire the same by repatriation. He
insists that Article IV, Section 2 of the Constitution expressly states that natural-born citizens are those who are citizens
from birth without having to perform any act to acquire or perfect such citizenship.
Respondent on the other hand contends that he reacquired his status as a natural-born citizen when he was repatriated
since the phrase "from birth" in Article IV, Section 2 refers to the innate, inherent and inborn characteristic of being a
natural-born citizen.
The petition is without merit.
The 1987 Constitution enumerates who are Filipino citizens as follows:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of
majority, and
(4) Those who are naturalized in accordance with law.[8]
There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship
correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of
his birth is a citizen of a particular country, is a natural-born citizen thereof.[9]
As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines from birth without having
to perform any act to acquire or perfect his Philippine citizenship."[10]
On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally
under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the
former Naturalization Law (Act No. 2927), and by Republic Act No. 530.[11] To be naturalized, an applicant has to prove
that he possesses all the qualifications[12] and none of the disqualifications[13] provided by law to become a Filipino citizen.
The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the
court is satisfied that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself
to a lawful calling or profession; (3) has not been convicted of any offense or violation of Government promulgated rules;
or (4) committed any act prejudicial to the interest of the nation or contrary to any Government announced policies.[14]
Filipino citizens who have lost their citizenship may however reacquire the same in the manner provided by law.
Commonwealth Act. No. 63 (C.A. No. 63), enumerates the three modes by which Philippine citizenship may be reacquired
by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress.[15]
Naturalization is a mode for both acquisition and reacquisition of Philippine citizenship. As a mode of initially acquiring
Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as amended. On the other hand,
naturalization as a mode for reacquiring Philippine citizenship is governed by Commonwealth Act No. 63.[16] Under this
law, a former Filipino citizen who wishes to reacquire Philippine citizenship must possess certain qualifications[17] and none
of the disqualifications mentioned in Section 4 of C.A. 473.[18]
Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship due to: (1) desertion
of the armed forces;[19] (2) service in the armed forces of the allied forces in World War II; [20] (3) service in the Armed
Forces of the United States at any other time;[21] (4) marriage of a Filipino woman to an alien;[22] and (5) political and
economic necessity.[23]
As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of
allegiance to the Republic of the Philippines and registering said oath in the Local Civil Registry of the place where the
person concerned resides or last resided.
In Angat v. Republic,[24] we held:
xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person desiring to reacquire Philippine
citizenship would not even be required to file a petition in court, and all that he had to do was to take an oath of allegiance
to the Republic of the Philippines and to register that fact with the civil registry in the place of his residence or where he
had last resided in the Philippines. [Italics in the original.][25]
Moreover, repatriation results in the recovery of the original nationality.[26] This means that a naturalized Filipino who
lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally
a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born
Filipino.
In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the Armed Forces of the United
States. However, he subsequently reacquired Philippine citizenship under R.A. No. 2630, which provides:
Section 1. Any person who had lost his Philippine citizenship by rendering service to, or accepting commission in, the
Armed Forces of the United States, or after separation from the Armed Forces of the United States, acquired United States
citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and
registering the same with Local Civil Registry in the place where he resides or last resided in the Philippines. The said oath
of allegiance shall contain a renunciation of any other citizenship.
Having thus taken the required oath of allegiance to the Republic and having registered the same in the Civil Registry of
Magantarem, Pangasinan in accordance with the aforecited provision, respondent Cruz is deemed to have recovered his
original status as a natural-born citizen, a status which he acquired at birth as the son of a Filipino father.[27] It bears
stressing that the act of repatriation allows him to recover, or return to, his original status before he lost his Philippine
citizenship.
Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to perform an act to regain
his citizenship is untenable. As correctly explained by the HRET in its decision, the term "natural-born citizen" was first
defined in Article III, Section 4 of the 1973 Constitution as follows:
Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to
acquire or perfect his Philippine citizenship.
Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino citizen from birth and
(2) he does not have to perform any act to obtain or perfect his Philippine citizenship.
Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not considered natural-
born: (1) those who were naturalized and (2) those born before January 17, 1973,[28] of Filipino mothers who, upon
reaching the age of majority, elected Philippine citizenship. Those "naturalized citizens" were not considered natural-born
obviously because they were not Filipinos at birth and had to perform an act to acquire Philippine citizenship. Those born
of Filipino mothers before the effectivity of the 1973 Constitution were likewise not considered natural-born because they
also had to perform an act to perfect their Philippine citizenship.
The present Constitution, however, now considers those born of Filipino mothers before the effectivity of the 1973
Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born. After defining who
are natural-born citizens, Section 2 of Article IV adds a sentence: "Those who elect Philippine citizenship in accordance
with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalized Filipinos are
considered not natural-born citizens. It is apparent from the enumeration of who are citizens under the present
Constitution that there are only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized
in accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization
to obtain Philippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in said enumeration of a
separate category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is
clear: as to such persons, they would either be natural-born or naturalized depending on the reasons for the loss of their
citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not
required by law to go through naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-
born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of
Representatives.
A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all contests relating to the
election, returns, and qualifications of the members of the House.[29] The Court's jurisdiction over the HRET is merely to
check "whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part
of the latter.[30] In the absence thereof, there is no occasion for the Court to exercise its corrective power and annul the
decision of the HRET nor to substitute the Court's judgment for that of the latter for the simple reason that it is not the
office of a petition for certiorari to inquire into the correctness of the assailed decision.[31] There is no such showing of
grave abuse of discretion in this case.
WHEREFORE, the petition is hereby DISMISSED.

[G.R. No. 135083. May 26, 1999]

ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON
ELECTIONS, respondents.
DECISION
MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of
Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III.The results of the election were as follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275[1]
The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain
Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998,[2] the Second Division of the COMELEC granted the petition of Mamaril and ordered
the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under
40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective
position. The COMELECs Second Division said:
What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for
the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the
respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a
natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the
Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because
he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco, California,
on September 14, 1955, and is considered an American citizen under US Laws. But notwithstanding his registration as an
American citizen, he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen. In other
words, he holds dual citizenship.
The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of
candidacy. Is he eligible for the office he seeks to be elected?
Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any
elective local position.
WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for
Vice-Mayor of Makati City.
On May 8, 1998, private respondent filed a motion for reconsideration.[3] The motion remained pending even until after
the election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers
tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner.
On May 19, 1998, petitioner sought to intervene in the case for disqualification.[4] Petitioners motion was opposed by
private respondent.
The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1,
with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private
respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections.[5] The pertinent portions of
the resolution of the COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US citizenship
by operation of the United States Constitution and laws under the principle of jus soli.
He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother were
Filipinos at the time of his birth. At the age of six (6), his parents brought him to the Philippines using an American passport
as travel document. His parents also registered him as an alien with the Philippine Bureau of Immigration. He was issued
an alien certificate of registration. This, however, did not result in the loss of his Philippine citizenship, as he did not
renounce Philippine citizenship and did not take an oath of allegiance to the United States.
It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in
the elections of 1992, 1995 and 1998, which effectively renounced his US citizenship under American law. Under Philippine
law, he no longer had U.S. citizenship.
At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet
final. Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City,
garnering one hundred three thousand eight hundred fifty three (103,853) votes over his closest rival, Ernesto S. Mercado,
who obtained one hundred thousand eight hundred ninety four (100,894) votes, or a margin of two thousand nine
hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred seventy five
(54,275) votes. In applying election laws, it would be far better to err in favor of the popular choice than be embroiled in
complex legal issues involving private international law which may well be settled before the highest court (Cf. Frivaldo
vs. Commission on Elections, 257 SCRA 727).
WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7, 1998,
ordering the cancellation of the respondents certificate of candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of
Makati City in the May 11, 1998, elections.
ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to
reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati
City.
Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998,
proclaimed private respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private
respondent disqualified to hold the office of vice mayor of Makati City.Petitioner contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when he:
1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and,
2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992,
1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet
final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run for
and hold the elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private respondent Manzano whether petitioner Mercado has
personality to bring this suit considering that he was not an original party in the case for disqualification filed by Ernesto
Mamaril nor was petitioners motion for leave to intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his
claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his
motion for intervention:
Section 1. When proper and when may be permitted to intervene. Any person allowed to initiate an action or proceeding
may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene
in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or
an interest against both, or when he is so situated as to be adversely affected by such action or proceeding.
....
Section 3. Discretion of Commission. In allowing or disallowing a motion for intervention, the Commission or the Division,
in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether or not the intervenors rights may be fully protected in a
separate action or proceeding.
Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect
because he is a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-
Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment.
The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the
COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati
City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had
been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from
the race at the time he sought to intervene. The rule in Labo v. COMELEC,[6] reiterated in several cases,[7] only applies to
cases in which the election of the respondent is contested, and the question is whether one who placed second to the
disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a Motion for Leave to
File Intervention on May 20, 1998, there had been no proclamation of the winner, and petitioners purpose was precisely
to have private respondent disqualified from running for [an] elective local position under 40(d) of R.A. No. 7160. If Ernesto
Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to
bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City.
Nor is petitioners interest in the matter in litigation any less because he filed a motion for intervention only on May 20,
1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for
vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private
respondent is clear from 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides:
Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for
him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever
the evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet
been no final judgment rendered.
The failure of the COMELEC en banc to resolve petitioners motion for intervention was tantamount to a denial of the
motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits
of the case, the present petition properly deals not only with the denial of petitioners motion for intervention but also
with the substantive issues respecting private respondents alleged disqualification on the ground of dual citizenship.
This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so,
whether he is disqualified from being a candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under 40 of the Local Government Code of 1991 (R.A.
No. 7160), which declares as disqualified from running for any elective local position: . . . (d) Those with dual
citizenship. This provision is incorporated in the Charter of the City of Makati.[8]
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends
that through 40(d) of the Local Government Code, Congress has command[ed] in explicit terms the ineligibility of persons
possessing dual allegiance to hold local elective office.
To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent
application of the different laws of two or more states, a person is simultaneously considered a national by the said
states.[9] For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to
the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without
any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art.
IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children
are citizens of that country;
(3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or
omission they are deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of
another state; but the above cases are clearly possible given the constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act,
loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition.
With respect to dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law. This provision was included in the 1987 Constitution at the instance of
Commissioner Blas F. Ople who explained its necessity as follows:[10]
. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the
Bernas Committee according to which a dual allegiance - and I reiterate a dual allegiance - is larger and more threatening
than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of
the accident of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at all.
What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance. For
example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of Commerce
which consists of about 600 chapters all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely
known is the fact that the Filipino-Chinese community is represented in the Legislative Yuan of the Republic of China in
Taiwan. And until recently, the sponsor might recall, in Mainland China in the Peoples Republic of China, they have the
Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including some European and Latin
countries were represented, which was dissolved after several years because of diplomatic friction. At that time, the
Filipino-Chinese were also represented in that Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are
already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan. I also
took close note of the concern expressed by some Commissioners yesterday, including Commissioner Villacorta, who were
concerned about the lack of guarantees of thorough assimilation, and especially Commissioner Concepcion who has
always been worried about minority claims on our natural resources.
Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already
happening. Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese it is
of common knowledge in Manila. It can mean a tragic capital outflow when we have to endure a capital famine which also
means economic stagnation, worsening unemployment and social unrest.
And so, this is exactly what we ask that the Committee kindly consider incorporating a new section, probably Section 5, in
the article on Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT
WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus:[11]
. . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a
double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought would
be repugnant to the sovereignty which pervades the Constitution and to citizenship itself which implies a uniqueness and
which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to that citizenship including, of
course, the obligation to rise to the defense of the State when it is threatened, and back of this, Commissioner Bernas, is,
of course, the concern for national security. In the course of those debates, I think some noted the fact that as a result of
the wave of naturalizations since the decision to establish diplomatic relations with the Peoples Republic of China was
made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei every October 10; and it is asserted
that some of them do renew their oath of allegiance to a foreign government maybe just to enter into the spirit of the
occasion when the anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine and deep
concern about double citizenship, with its attendant risk of double allegiance which is repugnant to our sovereignty and
national security. I appreciate what the Committee said that this could be left to the determination of a future
legislature. But considering the scale of the problem, the real impact on the security of this country, arising from, let us
say, potentially great numbers of double citizens professing double allegiance, will the Committee entertain a proposed
amendment at the proper time that will prohibit, in effect, or regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual
citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their
naturalization. Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as
referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike
those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status,
for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive
members of the Constitutional Commission, pointed out: [D]ual citizenship is just a reality imposed on us because we have
no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she
is considered a citizen of another country is something completely beyond our control.[12]
By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they
are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign
state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the
following discussion on 40(d) between Senators Enrile and Pimentel clearly shows:[13]
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: Any person with dual citizenship is
disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother
is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement
that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the country of his or her father and one
belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government
position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public
office, he has to repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father
claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his
desire to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a
person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentlemans example, if he does not renounce
his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should
do is to say in the Certificate of Candidacy that: I am a Filipino citizen, and I have only one citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one
citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other
citizenships, then he will probably fall under this disqualification.
This is similar to the requirement that an applicant for naturalization must renounce all allegiance and fidelity to any
foreign prince, potentate, state, or sovereignty[14] of which at the time he is a subject or citizen before he can be issued a
certificate of naturalization as a citizen of the Philippines. In Parado v. Republic,[15] it was held:
[W]hen a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other country
or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition imposed
by law is satisfied and complied with. The determination whether such renunciation is valid or fully complies with the
provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts. The latter should
apply the law duly enacted by the legislative department of the Republic. No foreign law may or should interfere with its
operation and application. If the requirement of the Chinese Law of Nationality were to be read into our Naturalization
Law, we would be applying not what our legislative department has deemed it wise to require, but what a foreign
government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at all cost. It
would be a brazen encroachment upon the sovereign will and power of the people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino
parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus
soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States. However,
the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent
effectively renounced his U.S. citizenship under American law, so that now he is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of
renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37 years
old, it was ineffective as it should have been made when he reached the age of majority.
In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC
must have in mind 349 of the Immigration and Nationality Act of the United States, which provided that A person who is
a national of the United States, whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political
election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign
territory. To be sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk[16] as
beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a certificate of candidacy
when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American
citizenship. Private respondents certificate of candidacy, filed on March 27, 1998, contained the following statements
made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR NATURALIZED) NATURAL-BORN
....
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI,
PROVINCE OF NCR .
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE
PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS
AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT
I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION. I
HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any
disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held:[17]
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? We 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 citizenship-long 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.
On this point, we quote from the assailed Resolution dated December 19, 1995:
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.
There is, therefore, no merit in petitioners contention that the oath of allegiance contained in private respondents
certificate of candidacy is insufficient to constitute renunciation of his American citizenship. Equally without merit is
petitioners contention that, to be effective, such renunciation should have been made upon private respondent reaching
the age of majority since no law requires the election of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the
Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the
United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998,
he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality
before the termination of his American citizenship. What this Court said in Aznar v. COMELEC[18] applies mutatis
mutandis to private respondent in the case at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a Certificate
stating he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an American does
not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express
renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When
We consider that the renunciation needed to lose Philippine citizenship must be express, it stands to reason that there
can be no such loss of Philippine citizenship when there is no renunciation, either express or implied.
To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident
or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith
and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this
country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a
dual citizen.
On the other hand, private respondents oath of allegiance to the Philippines, when considered with the fact that he has
spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections
in this country, leaves no doubt of his election of Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that
trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate
proceedings. In Yu v. Defensor-Santiago,[19] we sustained the denial of entry into the country of petitioner on the ground
that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against any
one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting
renunciation of his Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.

G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:
A constitutional provision should be construed as to give it effective operation and suppress the mischief at which it is
aimed.1 The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a registered
voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately
preceding the election."2 The mischief which this provision — reproduced verbatim from the 1973 Constitution — seeks
to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and
not identified with the latter, from an elective office to serve that community."3
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First
District of Leyte with the Provincial Election Supervisor on March 8, 1995, providing the following information in item no.
8:4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION: __________
Years and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and
a candidate for the same position, filed a "Petition for Cancellation and Disqualification"5 with the Commission on Elections
alleging that petitioner did not meet the constitutional requirement for residency. In his petition, private respondent
contended that Mrs. Marcos lacked the Constitution's one year residency requirement for candidates for the House of
Representatives on the evidence of declarations made by her in Voter Registration Record 94-No. 33497726 and in her
Certificate of Candidacy. He prayed that "an order be issued declaring (petitioner) disqualified and canceling the certificate
of candidacy."7
On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry "seven" months
to "since childhood" in item no. 8 of the amended certificate.8 On the same day, the Provincial Election Supervisor of Leyte
informed petitioner that:
[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground that it is filed out of time,
the deadline for the filing of the same having already lapsed on March 20, 1995. The Corrected/Amended Certificate of
Candidacy should have been filed on or before the March 20, 1995 deadline.9
Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head Office in
Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the head office on
the same day. In said Answer, petitioner averred that the entry of the word "seven" in her original Certificate of Candidacy
was the result of an "honest misinterpretation" 10 which she sought to rectify by adding the words "since childhood" in
her Amended/Corrected Certificate of Candidacy and that "she has always maintained Tacloban City as her domicile or
residence. 11 Impugning respondent's motive in filing the petition seeking her disqualification, she noted that:
When respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City and run for
Congress in the First District of Leyte, petitioner immediately opposed her intended registration by writing a letter stating
that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in
Tolosa following completion of her six month actual residence therein, petitioner filed a petition with the COMELEC to
transfer the town of Tolosa from the First District to the Second District and pursued such a move up to the Supreme
Court, his purpose being to remove respondent as petitioner's opponent in the congressional election in the First District.
He also filed a bill, along with other Leyte Congressmen, seeking the creation of another legislative district to remove the
town of Tolosa out of the First District, to achieve his purpose. However, such bill did not pass the Senate. Having failed
on such moves, petitioner now filed the instant petition for the same objective, as it is obvious that he is afraid to submit
along with respondent for the judgment and verdict of the electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995. 12
On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1, 13 came up with a
Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking off
petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate of
Candidacy. 14 Dealing with two primary issues, namely, the validity of amending the original Certificate of Candidacy after
the lapse of the deadline for filing certificates of candidacy, and petitioner's compliance with the one year residency
requirement, the Second Division held:
Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months) was a result of an
"honest misinterpretation or honest mistake" on her part and, therefore, an amendment should subsequently be allowed.
She averred that she thought that what was asked was her "actual and physical" presence in Tolosa and not residence of
origin or domicile in the First Legislative District, to which she could have responded "since childhood." In an accompanying
affidavit, she stated that her domicile is Tacloban City, a component of the First District, to which she always intended to
return whenever absent and which she has never abandoned. Furthermore, in her memorandum, she tried to discredit
petitioner's theory of disqualification by alleging that she has been a resident of the First Legislative District of Leyte since
childhood, although she only became a resident of the Municipality of Tolosa for seven months. She asserts that she has
always been a resident of Tacloban City, a component of the First District, before coming to the Municipality of Tolosa.
Along this point, it is interesting to note that prior to her registration in Tolosa, respondent announced that she would be
registering in Tacloban City so that she can be a candidate for the District. However, this intention was rebuffed when
petitioner wrote the Election Officer of Tacloban not to allow respondent since she is a resident of Tolosa and not
Tacloban. She never disputed this claim and instead implicitly acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides, the Certificate of
Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quite aware of "residence of origin" which
she interprets to be Tacloban City, it is curious why she did not cite Tacloban City in her Certificate of Candidacy. Her
explanation that she thought what was asked was her actual and physical presence in Tolosa is not easy to believe because
there is none in the question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaks clearly
of "Residency in the CONSTITUENCY where I seek to be elected immediately preceding the election." Thus, the explanation
of respondent fails to be persuasive.
From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is devoid of merit.
To further buttress respondent's contention that an amendment may be made, she cited the case of Alialy v. COMELEC (2
SCRA 957). The reliance of respondent on the case of Alialy is misplaced. The case only applies to the "inconsequential
deviations which cannot affect the result of the election, or deviations from provisions intended primarily to secure timely
and orderly conduct of elections." The Supreme Court in that case considered the amendment only as a matter of form.
But in the instant case, the amendment cannot be considered as a matter of form or an inconsequential deviation. The
change in the number of years of residence in the place where respondent seeks to be elected is a substantial matter
which determines her qualification as a candidacy, specially those intended to suppress, accurate material representation
in the original certificate which adversely affects the filer. To admit the amended certificate is to condone the evils brought
by the shifting minds of manipulating candidate, of the detriment of the integrity of the election.
Moreover, to allow respondent to change the seven (7) month period of her residency in order to prolong it by claiming
it was "since childhood" is to allow an untruthfulness to be committed before this Commission. The arithmetical accuracy
of the 7 months residency the respondent indicated in her certificate of candidacy can be gleaned from her entry in her
Voter's Registration Record accomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa,
Leyte for 6 months at the time of the said registration (Annex A, Petition). Said accuracy is further buttressed by her letter
to the election officer of San Juan, Metro Manila, dated August 24, 1994, requesting for the cancellation of her registration
in the Permanent List of Voters thereat so that she can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The
dates of these three (3) different documents show the respondent's consistent conviction that she has transferred her
residence to Olot, Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the last week of August
1994 which on March 8, 1995 will only sum up to 7 months. The Commission, therefore, cannot be persuaded to believe
in the respondent's contention that it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by this Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing discussion, it is clear that respondent has not complied with the one
year residency requirement of the Constitution.
In election cases, the term "residence" has always been considered as synonymous with "domicile" which imports not
only the intention to reside in a fixed place but also personal presence in-that place, coupled with conduct indicative of
such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like
reasons, one intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA
408). In respondent's case, when she returned to the Philippines in 1991, the residence she chose was not Tacloban but
San Juan, Metro Manila. Thus, her animus revertendi is pointed to Metro Manila and not Tacloban.
This Division is aware that her claim that she has been a resident of the First District since childhood is nothing more than
to give her a color of qualification where she is otherwise constitutionally disqualified. It cannot hold ground in the face
of the facts admitted by the respondent in her affidavit. Except for the time that she studied and worked for some years
after graduation in Tacloban City, she continuously lived in Manila. In 1959, after her husband was elected Senator, she
lived and resided in San Juan, Metro Manila where she was a registered voter. In 1965, she lived in San Miguel, Manila
where she was again a registered voter. In 1978, she served as member of the Batasang Pambansa as the representative
of the City of Manila and later on served as the Governor of Metro Manila. She could not have served these positions if
she had not been a resident of the City of Manila. Furthermore, when she filed her certificate of candidacy for the office
of the President in 1992, she claimed to be a resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994,
respondent wrote a letter with the election officer of San Juan, Metro Manila requesting for the cancellation of her
registration in the permanent list of voters that she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte.
These facts manifest that she could not have been a resident of Tacloban City since childhood up to the time she filed her
certificate of candidacy because she became a resident of many places, including Metro Manila. This debunks her claim
that prior to her residence in Tolosa, Leyte, she was a resident of the First Legislative District of Leyte since childhood.
In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile. She registered as a voter
in different places and on several occasions declared that she was a resident of Manila. Although she spent her school
days in Tacloban, she is considered to have abandoned such place when she chose to stay and reside in other different
places. In the case of Romualdez vs. RTC (226 SCRA 408) the Court explained how one acquires a new domicile by choice.
There must concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and (3) intention to
abandon the old domicile. In other words there must basically be animus manendi with animus non revertendi. When
respondent chose to stay in Ilocos and later on in Manila, coupled with her intention to stay there by registering as a voter
there and expressly declaring that she is a resident of that place, she is deemed to have abandoned Tacloban City, where
she spent her childhood and school days, as her place of domicile.
Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of such intention.
Respondent's statements to the effect that she has always intended to return to Tacloban, without the accompanying
conduct to prove that intention, is not conclusive of her choice of residence. Respondent has not presented any evidence
to show that her conduct, one year prior the election, showed intention to reside in Tacloban. Worse, what was evident
was that prior to her residence in Tolosa, she had been a resident of Manila.
It is evident from these circumstances that she was not a resident of the First District of Leyte "since childhood."
To further support the assertion that she could have not been a resident of the First District of Leyte for more than one
year, petitioner correctly pointed out that on January 28, 1995 respondent registered as a voter at precinct No. 18-A of
Olot, Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she resided in the municipality of Tolosa
for a period of six months. This may be inconsequential as argued by the respondent since it refers only to her residence
in Tolosa, Leyte. But her failure to prove that she was a resident of the First District of Leyte prior to her residence in
Tolosa leaves nothing but a convincing proof that she had been a resident of the district for six months only. 15
In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied petitioner's Motion for
Reconsideration 16 of the April 24, 1995 Resolution declaring her not qualified to run for the position of Member of the
House of Representatives for the First Legislative District of Leyte. 17 The Resolution tersely stated:
After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no new substantial matters
having been raised therein to warrant re-examination of the resolution granting the petition for disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of the canvass
show that she obtained the highest number of votes in the congressional elections in the First District of Leyte. On the
same day, however, the COMELEC reversed itself and issued a second Resolution directing that the proclamation of
petitioner be suspended in the event that she obtains the highest number of votes. 19
In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of the elections
for the congressional seat in the First District of Leyte held May 8, 1995 based on the canvass completed by the Provincial
Board of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she obtained a total of 70,471 votes
compared to the 36,833 votes received by Respondent Montejo. A copy of said Certificate of Canvass was annexed to the
Supplemental Petition.
On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District of Leyte
and the public respondent's Resolution suspending her proclamation, petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be classified into two
general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a period of one year at
the time of the May 9, 1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside the period mandated
by the Omnibus Election Code for disqualification cases under Article 78 of the said Code.
b) After the Elections
Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over the question of
petitioner's qualifications after the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of settled
concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement with the general
proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution reveals a
tendency to substitute or mistake the concept of domicile for actual residence, a conception not intended for the purpose
of determining a candidate's qualifications for election to the House of Representatives as required by the 1987
Constitution. As it were, residence, for the purpose of meeting the qualification for an elective position, has a settled
meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile
of natural persons is their place of habitual residence." In Ong vs. Republic 20 this court took the concept of domicile to
mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to
return, and depends on facts and circumstances in the sense that they disclose intent." 21Based on the foregoing, domicile
includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the
intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical
presence of a person in a given area, community or country. The essential distinction between residence and domicile in
law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends.
One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his
domicile; if his intent is to leave as soon as his purpose is established it is residence. 22 It is thus, quite perfectly normal for
an individual to have different residences in various places. However, a person can only have a single domicile, unless, for
various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu
vs. Republic, 23 we laid this distinction quite clearly:
There is a difference between domicile and residence. "Residence" is used to indicate a place of abode, whether
permanent or temporary; "domicile" denotes a fixed permanent residence to which, when absent, one has the intention
of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile
is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same
purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of
domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will
constitute domicile.
For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these
concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for
election purposes is used synonymously with domicile.
In Nuval vs. Guray, 24 the Court held that "the term residence. . . is synonymous with domicile which imports not only
intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such
intention." 25 Larena vs. Teves 26 reiterated the same doctrine in a case involving the qualifications of the respondent
therein to the post of Municipal President of Dumaguete, Negros Oriental. Faypon vs. Quirino, 27 held that the absence
from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is
elected does not constitute loss of residence. 28 So settled is the concept (of domicile) in our election law that in these and
other election law cases, this Court has stated that the mere absence of an individual from his permanent residence
without the intention to abandon it does not result in a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed beyond
doubt the principle that when the Constitution speaks of "residence" in election law, it actually means only "domicile" to
wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to
require residence in the place not less than one year immediately preceding the day of the elections. So my question is:
What is the Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept
of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed
section merely provides, among others, "and a resident thereof", that is, in the district for a period of not less than one
year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it
was domicile. 29
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that
"resident" has been interpreted at times as a matter of intention rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual residence rather than
mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the
Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept
that it should be by domicile and not physical residence. 30
In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court concluded that the framers of the 1987
Constitution obviously adhered to the definition given to the term residence in election law, regarding it as having the
same meaning as domicile. 32
In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency requirement
mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned entry in petitioner's
Certificate of Candidacy stating her residence in the First Legislative District of Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether
or not and individual has satisfied the constitution's residency qualification requirement. The said statement becomes
material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and knowingly make
a statement in a certificate of candidacy which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in the space
provided for the residency qualification requirement. The circumstances leading to her filing the questioned entry
obviously resulted in the subsequent confusion which prompted petitioner to write down the period of her actual stay in
Tolosa, Leyte instead of her period of residence in the First district, which was "since childhood" in the space provided.
These circumstances and events are amply detailed in the COMELEC's Second Division's questioned resolution, albeit with
a different interpretation. For instance, when herein petitioner announced that she would be registering in Tacloban City
to make her eligible to run in the First District, private respondent Montejo opposed the same, claiming that petitioner
was a resident of Tolosa, not Tacloban City. Petitioner then registered in her place of actual residence in the First District,
which is Tolosa, Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close look at said
certificate would reveal the possible source of the confusion: the entry for residence (Item No. 7) is followed immediately
by the entry for residence in the constituency where a candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte
POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven Months.
Having been forced by private respondent to register in her place of actual residence in Leyte instead of petitioner's
claimed domicile, it appears that petitioner had jotted down her period of stay in her legal residence or domicile. The
juxtaposition of entries in Item 7 and Item 8 — the first requiring actual residence and the second requiring domicile —
coupled with the circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her writing down
an unintended entry for which she could be disqualified. This honest mistake should not, however, be allowed to negate
the fact of residence in the First District if such fact were established by means more convincing than a mere entry on a
piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the Second
Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the time when (petitioner)
studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila." The Resolution
additionally cites certain facts as indicative of the fact that petitioner's domicile ought to be any place where she lived in
the last few decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided in San Juan,
Metro Manila where she was also registered voter. Then, in 1965, following the election of her husband to the Philippine
presidency, she lived in San Miguel, Manila where she as a voter. In 1978 and thereafter, she served as a member of the
Batasang Pambansa and Governor of Metro Manila. "She could not, have served these positions if she had not been a
resident of Metro Manila," the COMELEC stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and maintained
residences in different places. Residence, it bears repeating, implies a factual relationship to a given place for various
purposes. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a
temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC that "she
could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy
because she became a resident of many places" flies in the face of settled jurisprudence in which this Court carefully made
distinctions between (actual) residence and domicile for election law purposes. In Larena vs. Teves, 33 supra, we stressed:
[T]his court is of the opinion and so holds that a person who has his own house wherein he lives with his family in a
municipality without having ever had the intention of abandoning it, and without having lived either alone or with his
family in another municipality, has his residence in the former municipality, notwithstanding his having registered as an
elector in the other municipality in question and having been a candidate for various insular and provincial positions,
stating every time that he is a resident of the latter municipality.
More significantly, in Faypon vs. Quirino, 34 We explained that:
A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to improve his lot, and that, of
course includes study in other places, practice of his avocation, or engaging in business. When an election is to be held,
the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for
professional or business reasons, or for any other reason, he may not absent himself from his professional or business
activities; so there he registers himself as voter as he has the qualifications to be one and is not willing to give up or lose
the opportunity to choose the officials who are to run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be
the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient
to constitute abandonment or loss of such residence. It finds justification in the natural desire and longing of every person
to return to his place of birth. This strong feeling of attachment to the place of one's birth must be overcome by positive
proof of abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner was
ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviously referring to
petitioner's various places of (actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on
residence in election law and the deliberations of the constitutional commission but also the provisions of the Omnibus
Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which we lift
verbatim from the COMELEC's Second Division's assailed Resolution: 36
In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban
City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1949 when she graduated from high school. She
pursued her college studies in St. Paul's College, now Divine Word University in Tacloban, where she earned her degree in
Education. Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to Manila to work
with her cousin, the late speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married
ex-President Ferdinand E. Marcos when he was still a congressman of Ilocos Norte and registered there as a voter. When
her husband was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where she
registered as a voter. In 1965, when her husband was elected President of the Republic of the Philippines, she lived with
him in Malacanang Palace and registered as a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to Honolulu, Hawaii. In November
1991, she came home to Manila. In 1992, respondent ran for election as President of the Philippines and filed her
Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held various
residences for different purposes during the last four decades. None of these purposes unequivocally point to an intention
to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a minor she
naturally followed the domicile of her parents. She grew up in Tacloban, reached her adulthood there and eventually
established residence in different parts of the country for various reasons. Even during her husband's presidency, at the
height of the Marcos Regime's powers, petitioner kept her close ties to her domicile of origin by establishing residences
in Tacloban, celebrating her birthdays and other important personal milestones in her home province, instituting well-
publicized projects for the benefit of her province and hometown, and establishing a political power base where her
siblings and close relatives held positions of power either through the ballot or by appointment, always with either her
influence or consent. These well-publicized ties to her domicile of origin are part of the history and lore of the quarter
century of Marcos power in our country. Either they were entirely ignored in the COMELEC'S Resolutions, or the majority
of the COMELEC did not know what the rest of the country always knew: the fact of petitioner's domicile in Tacloban,
Leyte.
Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she did not
live there until she was eight years old. He avers that after leaving the place in 1952, she "abandoned her residency (sic)
therein for many years and . . . (could not) re-establish her domicile in said place by merely expressing her intention to
live there again." We do not agree.
First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, it follows
that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin by operation of
law. This domicile was not established only when her father brought his family back to Leyte contrary to private
respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: 37
1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of residence and establishing a new one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue.
Only with evidence showing concurrence of all three requirements can the presumption of continuity or residence be
rebutted, for a change of residence requires an actual and deliberate abandonment, and one cannot have two legal
residences at the same time. 38 In the case at bench, the evidence adduced by private respondent plainly lacks the degree
of persuasiveness required to convince this court that an abandonment of domicile of origin in favor of a domicile of
choice indeed occurred. To effect an abandonment requires the voluntary act of relinquishing petitioner's former domicile
with an intent to supplant the former domicile with one of her own choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result
of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established distinction between
the Civil Code concepts of "domicile" and "residence." 39 The presumption that the wife automatically gains the husband's
domicile by operation of law upon marriage cannot be inferred from the use of the term "residence" in Article 110 of the
Civil Code because the Civil Code is one area where the two concepts are well delineated. Dr. Arturo Tolentino, writing on
this specific area explains:
In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply relations between a
person and a place; but in residence, the relation is one of fact while in domicile it is legal or juridical, independent of the
necessity of physical presence. 40
Article 110 of the Civil Code provides:
Art. 110. — The husband shall fix the residence of the family. But the court may exempt the wife from living with the
husband if he should live abroad unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the female
spouse upon marriage yields nothing which would suggest that the female spouse automatically loses her domicile of
origin in favor of the husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:
La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin embargo, podran con
justa causa eximirla de esta obligacion cuando el marido transende su residencia a ultramar o' a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever (the
husband) wishes to establish residence. This part of the article clearly contemplates only actual residence because it refers
to a positive act of fixing a family home or residence. Moreover, this interpretation is further strengthened by the phrase
"cuando el marido translade su residencia" in the same provision which means, "when the husband shall transfer his
residence," referring to another positive act of relocating the family to another home or place of actual residence. The
article obviously cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only once,
but as often as the husband may deem fit to move his family, a circumstance more consistent with the concept of actual
residence.
The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and unify
the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (of origin). This
difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a single place of actual
residence.
Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND OBLIGATIONS
BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obliges the husband and wife to
live together, thus:
Art. 109. — The husband and wife are obligated to live together, observe mutual respect and fidelity and render mutual
help and support.
The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into account the
situations where the couple has many residences (as in the case of the petitioner). If the husband has to stay in or transfer
to any one of their residences, the wife should necessarily be with him in order that they may "live together." Hence, it is
illogical to conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with a situation
where the wife is left in the domicile while the husband, for professional or other reasons, stays in one of their (various)
residences. As Dr. Tolentino further explains:
Residence and Domicile — Whether the word "residence" as used with reference to particular matters is synonymous
with "domicile" is a question of some difficulty, and the ultimate decision must be made from a consideration of the
purpose and intent with which the word is used. Sometimes they are used synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring to the physical presence of a person in a place. A person can have
two or more residences, such as a country residence and a city residence. Residence is acquired by living in place; on the
other hand, domicile can exist without actually living in the place. The important thing for domicile is that, once residence
has been established in one place, there be an intention to stay there permanently, even if residence is also established
in some other
41
place.
In fact, even the matter of a common residence between the husband and the wife during the marriage is not an iron-clad
principle; In cases applying the Civil Code on the question of a common matrimonial residence, our jurisprudence has
recognized certain situations 42 where the spouses could not be compelled to live with each other such that the wife is
either allowed to maintain a residence different from that of her husband or, for obviously practical reasons, revert to her
original domicile (apart from being allowed to opt for a new one). In De la Vina vs.Villareal 43 this Court held that "[a]
married woman may acquire a residence or domicile separate from that of her husband during the existence of the
marriage where the husband has given cause for divorce." 44 Note that the Court allowed the wife either to obtain new
residence or to choose a new domicile in such an event. In instances where the wife actually opts, .under the Civil Code,
to live separately from her husband either by taking new residence or reverting to her domicile of origin, the Court has
held that the wife could not be compelled to live with her husband on pain of contempt. In Arroyo vs. Vasques de
Arroyo 45 the Court held that:
Upon examination of the authorities, we are convinced that it is not within the province of the courts of this country to
attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the
property rights of one of the pair are invaded, an action for restitution of such rights can be maintained. But we are
disinclined to sanction the doctrine that an order, enforcible (sic) by process of contempt, may be entered to compel the
restitution of the purely personal right of consortium. At best such an order can be effective for no other purpose than to
compel the spouses to live under the same roof; and he experience of those countries where the courts of justice have
assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable.
Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of
either husband or wife; and if the facts were found to warrant it, that court would make a mandatory decree, enforceable
by process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal
rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon
v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the
High Court of Justice, expressed his regret that the English law on the subject was not the same as that which prevailed in
Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in England, could be
obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing
sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a
decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in appropriate
cases as the basis of an order for the periodical payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted to
make a preemptory order requiring one of the spouses to live with the other; and that was in a case where a wife was
ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The decision
referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of
the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the State
of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is rejected.
(21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of the Audiencia Territorial
de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make
a particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator
of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had
brought to the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the return of the wife to the
marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to
the use and control of her property; and it does not appear that her disobedience to that order would necessarily have
been followed by imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged — by virtue of
Article 110 of the Civil Code — to follow her husband's actual place of residence fixed by him. The problem here is that at
that time, Mr. Marcos had several places of residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There
is no showing which of these places Mr. Marcos did fix as his family's residence. But assuming that Mr. Marcos had fixed
any of these places as the conjugal residence, what petitioner gained upon marriage was actual residence. She did not
lose her domicile of origin.
On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as a result of
our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. To underscore the
difference between the intentions of the Civil Code and the Family Code drafters, the term residence has been supplanted
by the term domicile in an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in
Article 110. The provision recognizes revolutionary changes in the concept of women's rights in the intervening years by
making the choice of domicile a product of mutual agreement between the spouses. 46
Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil Code) and
quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-affecting the rights and
obligations of husband and wife — the term residence should only be interpreted to mean "actual residence." The
inescapable conclusion derived from this unambiguous civil law delineation therefore, is that when petitioner married the
former President in 1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only acquired a
right to choose a new one after her husband died, petitioner's acts following her return to the country clearly indicate
that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by operation of law) as her
domicile. This "choice" was unequivocally expressed in her letters to the Chairman of the PCGG when petitioner sought
the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable
for the Marcos family to have a home in our homeland." 47 Furthermore, petitioner obtained her residence certificate in
1992 in Tacloban, Leyte, while living in her brother's house, an act which supports the domiciliary intention clearly
manifested in her letters to the PCGG Chairman. She could not have gone straight to her home in San Juan, as it was in a
state of disrepair, having been previously looted by vandals. Her "homes" and "residences" following her arrival in various
parts of Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and proceeding from
our discussion pointing out specific situations where the female spouse either reverts to her domicile of origin or chooses
a new one during the subsistence of the marriage, it would be highly illogical for us to assume that she cannot regain her
original domicile upon the death of her husband absent a positive act of selecting a new one where situations exist within
the subsistence of the marriage itself where the wife gains a domicile different from her husband.
In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are
persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner's claim of
legal residence or domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed resolutions were
rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of the Omnibus Election
Code. 48 Moreover, petitioner contends that it is the House of Representatives Electoral Tribunal and not the COMELEC
which has jurisdiction over the election of members of the House of Representatives in accordance with Article VI Sec. 17
of the Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be
merely directory, 49 "so that non-compliance with them does not invalidate the judgment on the theory that if the statute
had intended such result it would have clearly indicated it." 50 The difference between a mandatory and a directory
provision is often made on grounds of necessity. Adopting the same view held by several American authorities, this court
in Marcelino vs. Cruz held that: 51
The difference between a mandatory and directory provision is often determined on grounds of expediency, the reason
being that less injury results to the general public by disregarding than enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation of thirty (30) days within
which a decree may be entered without the consent of counsel, it was held that "the statutory provisions which may be
thus departed from with impunity, without affecting the validity of statutory proceedings, are usually those which relate
to the mode or time of doing that which is essential to effect the aim and purpose of the Legislature or some incident of
the essential act." Thus, in said case, the statute under examination was construed merely to be directory.
The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision after the
period stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our courts and other quasi-
judicial bodies would then refuse to render judgments merely on the ground of having failed to reach a decision within a
given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, 52 it is evident that
the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification case under Section 78
of B.P. 881 even after the elections.
As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of petitioner's
qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests
relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a
member of the House of Representatives. 53 Petitioner not being a member of the House of Representatives, it is obvious
that the HRET at this point has no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or deliberately
make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a distinction was made
on such a ground here. Surely, many established principles of law, even of election laws were flouted for the sake
perpetuating power during the pre-EDSA regime. We renege on these sacred ideals, including the meaning and spirit of
EDSA ourselves bending established principles of principles of law to deny an individual what he or she justly deserves in
law. Moreover, in doing so, we condemn ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a seat in the
House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May
11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the Provincial Board of
Canvassers to proclaim petitioner as the duly elected Representative of the First District of Leyte.
SO ORDERED.
Feliciano, J., is on leave.

Separate Opinions

PUNO, J., concurring:

It was Aristotle who taught mankind that things that are alike should be treated alike, while things that are unalike should
be treated unalike in proportion to their unalikeness.1 Like other candidates, petitioner has clearly met the residence
requirement provided by Section 6, Article VI of the Constitution.2 We cannot disqualify her and treat her unalike, for the
Constitution guarantees equal protection of the law. I proceed from the following factual and legal propositions:
First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled in Tacloban.
Their ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to school and thereafter
worked there. I consider Tacloban as her initial domicile, both her domicile of origin and her domicile of choice. Her
domicile of origin as it was the domicile of her parents when she was a minor; and her domicile of choice, as she continued
living there even after reaching the age of majority.
Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand E. Marcos. By
contracting marriage, her domicile became subject to change by law, and the right to change it was given by Article 110
of the Civil Code provides:
Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband
if he should live abroad unless in the service of the Republic.3 (Emphasis supplied)
In De la Viña v. Villareal and Geopano,4 this Court explained why the domicile of the wife ought to follow that of the
husband. We held: "The reason is founded upon the theoretic identity of person and interest between the husband and
the wife, and the presumption that, from the nature of the relation, the home of one is the home of the other. It is
intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where union and
harmony prevail."5 In accord with this objective, Article 109 of the Civil Code also obligated the husband and wife "to live
together."
Third. The difficult issues start as we determine whether petitioner's marriage to former President Marcos ipso
facto resulted in the loss of her Tacloban domicile. I respectfully submit that her marriage by itself alone did not cause her
to lose her Tacloban domicile. Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the
family. In the exercise of the right, the husband may explicitly choose the prior domicile of his wife, in which case, the
wife's domicile remains unchanged. The husband can also implicitly acquiesce to his wife's prior domicile even if it is
different. So we held in de la Viña,6
. . . . When married women as well as children subject to parental authority live, with the acquiescence of their husbands or
fathers, in a place distinct from where the latter live, they have their own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the husband that will
change the domicile of a wife from what it was prior to their marriage. The domiciliary decision made by the husband in
the exercise of the right conferred by Article 110 of the Civil Code binds the wife. Any and all acts of a wife during her
coverture contrary to the domiciliary choice of the husband cannot change in any way the domicile legally fixed by the
husband. These acts are void not only because the wife lacks the capacity to choose her domicile but also because they
are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised his right to fix the family domicile and
established it in Batac, Ilocos Norte, where he was then the congressman. At that particular point of time and throughout
their married life, petitioner lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed by
operation of law, it was not affected in 1959 when her husband was elected as Senator, when they lived in San Juan, Rizal
and where she registered as a voter. It was not also affected in 1965 when her husband was elected President, when they
lived in Malacañang Palace, and when she registered as a voter in San Miguel, Manila. Nor was it affected when she served
as a member of the Batasang Pambansa, Minister of Human Settlements and Governor of Metro Manila during the
incumbency of her husband as President of the nation. Under Article 110 of the Civil Code, it was only her husband who
could change the family domicile in Batac and the evidence shows he did not effect any such change. To a large degree,
this follows the common law that "a woman on her marriage loses her own domicile and by operation of law, acquires
that of her husband, no matter where the wife actually lives or what she believes or intends."7
Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of former President
Marcos on petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2) schools of thought
contend for acceptance. One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying on
American authorities.8 He echoes the theory that after the husband's death, the wife retains the last domicile of her
husband until she makes an actual change.
I do not subscribe to this submission. The American case law that the wife still retains her dead husband's domicile is
based on ancient common law which we can no longer apply in the Philippine setting today. The common law identified
the domicile of a wife as that of the husband and denied to her the power of acquiring a domicile of her own separate and
apart from him.9 Legal scholars agree that two (2) reasons support this common law doctrine. The first reason as
pinpointed by the legendary Blackstone is derived from the view that "the very being or legal existence of the woman is
suspended during
the marriage, or at least is incorporated and consolidated into that of the husband."10 The second reason lies in "the
desirability of having the interests of each member of the family unit governed by the same law."11 The presumption that
the wife retains the domicile of her deceased husband is an extension of this common law concept. The concept and its
extension have provided some of the most iniquitous jurisprudence against women. It was under common law that the
1873 American case of Bradwell v. Illinois 12 was decided where women were denied the right to practice law. It was
unblushingly ruled that "the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it
for many of the occupations of civil life . . . This is the law of the Creator." Indeed, the rulings relied upon by Mr. Justice
Davide in CJS 13 and AM JUR 2d14 are American state court decisions handed down between the years 191715 and
1938,16 or before the time when women were accorded equality of rights with men. Undeniably, the women's liberation
movement resulted in far-ranging state legislations in the United States to eliminate gender inequality.17 Starting in the
decade of the seventies, the courts likewise liberalized their rulings as they started invalidating laws infected with gender-
bias. It was in 1971 when the US Supreme Court in Reed v.Reed,18 struck a big blow for women equality when it declared
as unconstitutional an Idaho law that required probate courts to choose male family members over females as estate
administrators. It held that mere administrative inconvenience cannot justify a sex-based distinction. These significant
changes both in law and in case law on the status of women virtually obliterated the iniquitous common law surrendering
the rights of married women to their husbands based on the dubious theory of the parties' theoretic oneness. The Corpus
Juris Secundum editors did not miss the relevance of this revolution on women's right as they observed: "However, it has
been declared that under modern statutes changing the status of married women and departing from the common law
theory of marriage, there is no reason why a wife may not acquire a separate domicile for every purpose known to the
law."19In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable American Law
Institute also categorically stated that the view of Blackstone ". . . is no longer held. As the result of statutes and court
decisions, a wife now possesses practically the same rights and powers as her unmarried sister."20
In the case at bench, we have to decide whether we should continue clinging to the anachronistic common law that
demeans women, especially married women. I submit that the Court has no choice except to break away from this
common law rule, the root of the many degradations of Filipino women. Before 1988, our laws particularly the Civil Code,
were full of gender discriminations against women. Our esteemed colleague, Madam Justice Flerida Ruth Romero, cited a
few of them as follows:21
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives suffer under certain restrictions or disabilities. For
instance, the wife cannot accept gifts from others, regardless of the sex of the giver or the value of the gift, other than
from her very close relatives, without her husband's consent. She may accept only from, say, her parents, parents-in-law,
brothers, sisters and the relatives within the so-called fourth civil degree. She may not exercise her profession or
occupation or engage in business if her husband objects on serious grounds or if his income is sufficient to support their
family in accordance with their social standing. As to what constitutes "serious grounds" for objecting, this is within the
discretion of the husband.
xxx xxx xxx
Because of the present inequitable situation, the amendments to the Civil Law being proposed by the University of the
Philippines Law Center would allow absolute divorce which severes the matrimonial ties, such that the divorced spouses
are free to get married a year after the divorce is decreed by the courts. However, in order to place the husband and wife
on an equal footing insofar as the bases for divorce are concerned, the following are specified as the grounds for absolute
divorce: (1) adultery or having a paramour committed by the respondent in any of the ways specified in the Revised Penal
Code or (2) an attempt by the respondent against the life of the petitioner which amounts to attempted parricide under
the Revised Penal Code; (3) abandonment of the petitioner by the respondent without just cause for a period of three
consecutive years; or (4) habitual maltreatment.
With respect to property relations, the husband is automatically the administrator of the conjugal property owned in
common by the married couple even if the wife may be the more astute or enterprising partner. The law does not leave
it to the spouses to decide who shall act as such administrator. Consequently, the husband is authorized to engage in acts
and enter into transactions beneficial to the conjugal partnership. The wife, however, cannot similarly bind the partnership
without the husband's consent.
And while both exercise joint parental authority over their children, it is the father whom the law designates as the legal
administrator of the property pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate inequality between
men and women in our land. The watershed came on August 3, 1988 when our Family Code took effect which, among
others, terminated the unequal treatment of husband and wife as to their rights and responsibilities.22
The Family Code attained this elusive objective by giving new rights to married women and by abolishing sex-based
privileges of husbands. Among others, married women are now given the joint right to administer the family property,
whether in the absolute community system or in the system of conjugal partnership; 23 joint parental authority over their
minor children, both over their persons as well as their properties;24 joint responsibility for the support of the family;25 the
right to jointly manage the household;26 and, the right to object to their husband's exercise of profession, occupation,
business or activity.27 Of particular relevance to the case at bench is Article 69 of the Family Code which took away the
exclusive right of the husband to fix the family domicile and gave it jointly to the husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the
solidarity of the family. (Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife to live together, former
Madam Justice Alice Sempio-Diy of the Court of Appeals specified the instances when a wife may now refuse to live with
her husband, thus:28
(2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases like:
(a) If the place chosen by the husband as family residence is dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive conduct or insults, making common life impossible;
(c) If the husband compels her to live with his parents, but she cannot get along with her mother-in-law and they have
constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122);
(d) Where the husband has continuously carried illicit relations for 10 years with different women and treated his wife
roughly and without consideration. (Dadivas v. Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving no money to his family for food and necessities, and at the same
time insulting his wife and laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a vagabond life as a tramp (1 Manresa 329);
(g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 38 La. Ann. 70).
The inescapable conclusion is that our Family Code has completely emancipated the wife from the control of the husband,
thus abandoning the parties' theoretic identity of interest. No less than the late revered Mr. Justice J.B.L. Reyes who
chaired the Civil Code Revision Committee of the UP Law Center gave this insightful view in one of his rare lectures after
retirement:29
xxx xxx xxx
The Family Code is primarily intended to reform the family law so as to emancipate the wife from the exclusive control of
the husband and to place her at parity with him insofar as the family is concerned. The wife and the husband are now
placed on equal standing by the Code. They are now joint administrators of the family properties and exercise joint
authority over the persons and properties of their children. This means a dual authority in the family. The husband will no
longer prevail over the wife but she has to agree on all matters concerning the family. (Emphasis supplied)
In light of the Family Code which abrogated the inequality between husband and wife as started and perpetuated by the
common law, there is no reason in espousing the anomalous rule that the wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which provides the statutory support for this stance has been repealed by Article
69 of the Family Code. By its repeal, it becomes a dead-letter law, and we are not free to resurrect it by giving it further
effect in any way or manner such as by ruling that the petitioner is still bound by the domiciliary determination of her
dead husband.
Aside from reckoning with the Family Code, we have to consider our Constitution and its firm guarantees of due process
and equal protection of
law.30 It can hardly be doubted that the common law imposition on a married woman of her dead husband's domicile even
beyond his grave is patently discriminatory to women. It is a gender-based discrimination and is not rationally related to
the objective of promoting family solidarity. It cannot survive a constitutional challenge. Indeed, compared with our
previous fundamental laws, the 1987 Constitution is more concerned with equality between sexes as it explicitly commands
that the State ". . . shall ensure fundamental equality before the law of women and men." To be exact, section 14, Article
II provides: "The State recognizes the role of women in nation building, and shall ensure fundamental equality before the
law of women and men. We shall be transgressing the sense and essence of this constitutional mandate if we insist on
giving our women the caveman's treatment.
Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner reacquired her
Tacloban domicile upon the death of her husband in 1989. This is the necessary consequence of the view that petitioner's
Batac dictated domicile did not continue after her husband's death; otherwise, she would have no domicile and that will
violate the universal rule that no person can be without a domicile at any point of time. This stance also restores the right
of petitioner to choose her domicile before it was taken away by Article 110 of the Civil Code, a right now recognized by
the Family Code and protected by the Constitution. Likewise, I cannot see the fairness of the common law requiring
petitioner to choose again her Tacloban domicile before she could be released from her Batac domicile. She lost her
Tacloban domicile not through her act but through the act of her deceased husband when he fixed their domicile in Batac.
Her husband is dead and he cannot rule her beyond the grave. The law disabling her to choose her own domicile has been
repealed. Considering all these, common law should not put the burden on petitioner to prove she has abandoned her
dead husband's domicile. There is neither rhyme nor reason for this gender-based burden.
But even assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her Tacloban
domicile, still, the records reveal ample evidence to this effect. In her affidavit submitted to the respondent COMELEC,
petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after several requests for my return were denied by President
Corazon C. Aquino, and after I filed suits for our Government to issue me my passport.
37. But I came home without the mortal remains of my beloved husband, President Ferdinand E. Marcos, which the
Government considered a threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in Olot, Tolosa, Leyte, even
if my residences there were not livable as they had been destroyed and cannibalized. The PCGG, however, did not permit
and allow me.
39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay City, a friend's apartment on
Ayala Avenue, a house in South Forbes Park which my daughter rented, and Pacific Plaza, all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San Jose, Tacloban City, and
pursued my negotiations with PCGG to recover my sequestered residences in Tacloban City and Barangay Olot, Tolosa,
Leyte.
40.1 In preparation for my observance of All Saints' Day and All Souls' Day that year, I renovated my parents' burial grounds
and entombed their bones which had been excalvated, unearthed and scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for permissions to —
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot, Leyte . . . to make them livable for us the
Marcos family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG
Region 8 Representative, allowed me to repair and renovate my Leyte residences. I quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends to visit our sequestered properties in
Leyte, please allow her access thereto. She may also cause repairs and renovation of the sequestered properties, in which
event, it shall be understood that her undertaking said repairs is not authorization for her to take over said properties,
and that all expenses shall be for her account and not reimbursable. Please extend the necessary courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Niño Shrine residence in Tacloban City where I wanted to
stay and reside, after repairs and renovations were completed. In August 1994, I transferred from San Jose, Tacloban City,
to my residence in Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is not disputed that in 1992,
she first lived at the house of her brother in San Jose, Tacloban City and later, in August 1994, she transferred her residence
in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot are within the First District of Leyte. Since
petitioner reestablished her old domicile in 1992 in the First District of Leyte, she more than complied with the
constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil. He presented
petitioner's Voter's Registration Record filed with the Board of Election Inspectors of Precinct 10-A of Barangay Olot,
Tolosa, Leyte wherein she stated that her period of residence in said barangay was six (6) months as of the date of her
filing of said Voter's Registration Record on January 28, 1995.31 This statement in petitioner's Voter's Registration Record
is a non-prejudicial admission. The Constitution requires at least one (1) year residence in the district in which the
candidate shall be elected. In the case at bench, the reference is the First District of Leyte. Petitioner's
statement proved that she resided in Olot six (6) months before January 28, 1995 but did not disprovethat she has also
resided in Tacloban City starting 1992. As aforestated, Olot and Tacloban City are both within the First District of Leyte,
hence, her six (6) months residence in Olot should be counted not against, but in her favor. Private respondent also
presented petitioner's Certificate of Candidacy filed on March 8, 199532 where she placed seven (7) months after Item No.
8 which called for information regarding "residence in the constituency where I seek to be elected immediately preceding
the election." Again, this original certificate of candidacy has no evidentiary value because an March 1, 1995 it was
corrected by petitioner. In her Amended/Corrected Certificate of Candidacy,33 petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy to correct a bona fide mistake has been allowed by this Court as
a matter of course and as a matter of right. As we held in Alialy v. COMELEC,34 viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter N.P in the original certificate of candidacy presented
before the deadline September 11, 1959, did not render the certificate invalid. The amendment of the certificate, although
at a date after the deadline, but before the election, was substantial compliance with the law, and the defect was cured.
It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8, 1995 cannot be used as
evidence against her. Private respondent's petition for the disqualification of petitioner rested alone on these two (2)
brittle pieces of documentary evidence — petitioner's Voter's Registration Record and her original Certificate of
Candidacy. Ranged against the evidence of the petitioner showing her ceaseless contacts with Tacloban, private
respondent's two (2) pieces of evidence are too insufficient to disqualify petitioner, more so, to deny her the right to
represent the people of the First District of Leyte who have overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public office shall be free
from any form of harassment and discrimination."35 A detached reading of the records of the case at bench will show that
all forms of legal and extra-legal obstacles have been thrown against petitioner to prevent her from running as the people's
representative in the First District of Leyte. In petitioner's Answer to the petition to disqualify her, she averred:36
xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition is devious. When respondent
(petitioner herein) announced that she was intending to register as a voter in Tacloban City and run for Congress in the
First District of Leyte, petitioner (Montejo) immediately opposed her intended registration by writing a letter stating that
"she is not a resident of said city but of Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent's affidavit, Annex "2").
After respondent (petitioner herein) had registered as a voter in Tolosa following completion of her six-month actual
residence therein, petitioner (Montejo) filed a petition with the COMELEC to transfer the town of Tolosa from the First
District to the Second District and pursued such move up to the Supreme Court in G.R. No. 118702, his purpose being to
remove respondent (petitioner herein) as petitioner's (Montejo's) opponent in the congressional election in the First
District. He also filed a bill, along with other Leyte Congressmen, seeking to create another legislative district, to remove
the town of Tolosa out of the First District and to make it a part of the new district, to achieve his purpose. However, such
bill did not pass the Senate. Having, failed on such moves, petitioner now filed the instant petition, for the same objective,
as it is obvious that he is afraid to submit himself along with respondent (petitioner herein) for the judgment and verdict
of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995.
These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion,37 held:
xxx xxx xxx
Prior to the registration date — January 28, 1995 the petitioner (herein private respondent Montejo) wrote the Election
Officer of Tacloban City not to allow respondent (petitioner herein) to register thereat since she is a resident of Tolosa and
not Tacloban City. The purpose of this move of the petitioner (Montejo) is not lost to (sic) the Commission. In UND No. 95-
001 (In the matter of the Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New
Provinces of Biliran, Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo Roy G. Montejo, Representative,
First District of Leyte, wanted the Municipality of Tolosa, in the First District of Leyte, transferred to the Second District of
Leyte. The Hon. Sergio A.F. Apostol, Representative of the Second District of Leyte, opposed the move of the petitioner
(Montejo). Under Comelec Resolution No. 2736 (December 29, 1994), the Commission on Elections refused to make the
proposed transfer. Petitioner (Montejo) filed "Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995. Petitioner (Montejo) filed a
petition for certiorari before the Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission on Elections, G.R. No.
118702) questioning the resolution of the Commission. Believing that he could get a favorable ruling from the Supreme
Court, petitioner (Montejo) tried to make sure that the respondent (petitioner herein) will register as a voter in Tolosa so
that she will be forced to run as Representative not in the First but in the Second District.
It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously promulgated a "Decision," penned by
Associate Justice Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the municipality of Capoocan of the Second
District and the municipality of Palompon of the Fourth District to the Third District of the province of Leyte, is annulled
and set aside. We also deny the Petition praying for the transfer of the municipality of Tolosa from the First District to the
Second District of the province of Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was constrained to register in the
Municipality of Tolosa where her house is instead of Tacloban City, her domicile. In any case, both Tacloban City and Tolosa
are in the First Legislative District.
All these attempts to misuse our laws and legal processes are forms of rank harassments and invidious discriminations
against petitioner to deny her equal access to a public office. We cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of equality, the end result of which will allow the harassment and discrimination of
petitioner who has lived a controversial life, a past of alternating light and shadow. There is but one Constitution for all
Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the worst way to interpret the Constitution is
to inject in its interpretation, bile and bitterness.
Sixth. In Gallego v. Vera,38 we explained that the reason for this residence requirement is "to exclude a stranger or
newcomer, unacquainted, with the conditions and needs of a community and not identified with the latter, from an
elective office to serve that community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be
contested. Nobody can claim that she is not acquainted with its problems because she is a stranger to the place. None can
argue she cannot satisfy the intent of the Constitution.
Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of the electorate. The
election results show that petitioner received Seventy Thousand Four Hundred Seventy-one (70,471) votes, while private
respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the overwhelming
choice of the electorate of the First District of Leyte and this is not a sleight of statistics. We cannot frustrate this sovereign
will on highly arguable technical considerations. In case of doubt, we should lean towards a rule that will give life to the
people's political judgment.
A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality of status between
women and men by rejecting the iniquitous common law precedents on the domicile of married women and by redefining
domicile in accord with our own culture, law, and Constitution. To rule that a married woman is eternally tethered to the
domicile dictated by her dead husband is to preserve the anachronistic and anomalous balance of advantage of a husband
over his wife. We should not allow the dead to govern the living even if the glories of yesteryears seduce us to shout long
live the dead! The Family Code buried this gender-based discrimination against married women and we should not
excavate what has been entombed. More importantly, the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of Representative of the First
Congressional District of Leyte. I wish, however, to express a few comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's habitation is fixed, without any present intention of removing
therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed his abode, or habitation,
not for a mere special or temporary purpose, but with a present intention of making it his permanent home (28 C.J.S. §1).
It denotes a fixed permanent residence to which when absent for business, or pleasure, or for like reasons one intends to
return, and depends on facts and circumstances, in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA
966, 969)
Domicile is classified into domicile of origin and domicile of choice. The law attributes to every individual a domicile of
origin, which is the domicile of his parents, or of the head of his family, or of the person on whom he is legally dependent
at the time of his birth. While the domicile of origin is generally the place where one is born or reared, it maybe elsewhere
(28 C.J.S. §5). Domicile of choice, on the other hand, is the place which the person has elected and chosen for himself to
displace his previous domicile; it has for its true basis or foundation the intention of the person (28 C.J.S. §6). In order to
hold that a person has abandoned his domicile and acquired a new one called domicile of choice, the following requisites
must concur, namely, (a) residence or bodily presence in the new locality, (b) intention to remain there or animus
manendi, and (c) an intention to abandon the old domicile or animus non revertendi (Romualdez v. RTC, Br. 7, Tacloban
City, 226 SCRA 408, 415). A third classification is domicile by operation of law which attributes to a person a domicile
independent of his own intention or actual residence, ordinarily resulting from legal domestic relations, as that of the wife
arising from marriage, or the relation of a parent and a child (28 C.J.S. §7).
In election law, when our Constitution speaks of residence for election purposes it means domicile (Co v. Electoral Tribunal
of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent
Commission on Elections misapplied this concept, of domicile which led to petitioner's disqualification by ruling that
petitioner failed to comply with the constitutionally mandated one-year residence requirement. Apparently, public
respondent Commission deemed as conclusive petitioner's stay and registration as voter in many places as conduct
disclosing her intent to abandon her established domicile of origin in Tacloban, Leyte. In several decisions, though, the
Court has laid down the rule that registration of a voter in a place other than his place of origin is not sufficient to constitute
abandonment or loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent Commission offered no cogent
reason to depart from this rule except to surmise petitioner's intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to her marriage, a domicile
by operation of law. The proposition is that upon the death of her husband in 1989 she retains her husband's domicile, i.e.,
Batac, Ilocos Norte, until she makes an actual change thereof. I find this proposition quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with another, i.e., Batac, Ilocos Norte,
upon her marriage in 1954 with then Congressman Marcos. By legal fiction she followed the domicile of her husband. In
my view, the reason for the law is for the spouses to fully and effectively perform their marital duties and obligations to
one another.1 The question of domicile, however, is not affected by the fact that it was the legal or moral duty of the
individual to reside in a given place (28 C.J.S. §11). Thus, while the wife retains her marital domicile so long as the marriage
subsists, she automatically loses it upon the latter's termination, for the reason behind the law then ceases. Otherwise,
petitioner, after her marriage was ended by the death of her husband, would be placed in a quite absurd and unfair
situation of having been freed from all wifely obligations yet made to hold on to one which no longer serves any
meaningful purpose.
It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's death
without even signifying her intention to that effect. It is for the private respondent to prove, not for petitioner to disprove,
that petitioner has effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear rule
is that it is the party (herein private respondent) claiming that a person has abandoned or lost his residence of origin who
must show and prove preponderantly such abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. §16), because
the presumption is strongly in favor of an original or former domicile, as against an acquired one (28 C.J.S. §16). Private
respondent unfortunately failed to discharge this burden as the record is devoid of convincing proof that petitioner has
acquired whether voluntarily or involuntarily, a new domicile to replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with the constitutional one-year residence
requirement. After her exile abroad, she returned to the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the
Presidential Commission on Good Government which sequestered her residential house and other properties forbade her
necessitating her transient stay in various places in Manila (Affidavit p.6, attached as Annex I of the Petition). In 1992, she
ran for the position of president writing in her certificate of candidacy her residence as San Juan, Metro Manila. After her
loss therein, she went back to Tacloban City, acquired her residence certificate2 and resided with her brother in San Jose.
She resided in San Jose, Tacloban City until August of 1994 when she was allowed by the PCGG to move and reside in her
sequestered residential house in Olot, Tolosa, Leyte (Annex I, p. 6).3 It was in the same month of August when she applied
for the cancellation of her previous registration in San Juan, Metro Manila in order to register anew as voter of Olot,
Tolosa, Leyte, which she did on January 28, 1995. From this sequence of events, I find it quite improper to use as the
reckoning period of the one-year residence requirement the date when she applied for the cancellation of her previous
registration in San Juan, Metro Manila. The fact which private respondent never bothered to disprove is that petitioner
transferred her residence after the 1992 presidential election from San Juan, Metro Manila to San Jose, Tacloban City, and
resided therein until August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing that both
Tacloban City and Tolosa, Leyte are within the First Congressional District of Leyte, it indubitably stands that she had more
than a year of residence in the constituency she sought to be elected. Petitioner, therefore, has satisfactorily complied
with the one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified from running for
Representative of her District and that, in the event that she should, nevertheless, muster a majority vote, her
proclamation should be suspended. Not by a straightforward ruling did the COMELEC pronounce its decision as has been
its unvarying practice in the past, but by a startling succession of "reverse somersaults." Indicative of its shifting stance vis-
a-vis petitioner's certificate of candidacy were first, the action of its Second Division disqualifying her and canceling her
original Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en banc of her Motion
for Reconsideration on May 7, 1995, a day before the election; then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that the results of the canvass should
show that she obtained the highest number of votes (obviously noting that petitioner had won overwhelmingly over her
opponent), but almost simultaneously reversing itself by directing that even if she wins, her proclamation should
nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at bench is the interpretation to be given to
the one-year residency requirement imposed by the Constitution on aspirants for a Congressional seat.1
Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election purposes, it is
important to determine whether petitioner's domicile was in the First District of Leyte and if so, whether she had resided
there for at least a period of one year. Undisputed is her domicile of origin, Tacloban, where her parents lived at the time
of her birth. Depending on what theory one adopts, the same may have been changed when she married Ferdinand E.
Marcos, then domiciled in Batac, by operation of law. Assuming it did, his death certainly released her from the obligation
to live with him at the residence fixed by him during his lifetime. What may confuse the layman at this point is the fact
that the term "domicile" may refer to "domicile of origin," "domicile of choice," or "domicile by operation of law," which
subject we shall not belabor since it has been amply discussed by the ponente and in the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to the effect of the husband's death on the
domicile of the widow. Some scholars opine that the widow's domicile remains unchanged; that the deceased husband's
wishes perforce still bind the wife he has left behind. Given this interpretation, the widow cannot possibly go far enough
to sever the domiciliary tie imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or domicile of the family,
as laid down in the Civil Code,2 but to continue giving obeisance to his wishes even after the rationale underlying the
mutual duty of the spouses to live together has ceased, is to close one's eyes to the stark realities of the present.
At the other extreme is the position that the widow automatically reverts to her domicile of origin upon the demise of her
husband. Does the law so abhor a vacuum that the widow has to be endowed somehow with a domicile? To answer this
question which is far from rhetorical, one will have to keep in mind the basic principles of domicile. Everyone must have
a domicile. Then one must have only a single domicile for the same purpose at any given time. Once established, a domicile
remains until a new one is acquired, for no person lives who has no domicile, as defined by the law be is subject to.
At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more murky by the
conflicting opinions of foreign legal authorities. This being the state of things, it is imperative as it is opportune to illumine
the darkness with the beacon light of truth, as dictated by experience and the necessity of according petitioner her right
to choose her domicile in keeping with the enlightened global trend to recognize and protect the human rights of women,
no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights are concerned, is a
relatively recent phenomenon that took seed only in the middle of this century. It is a historical fact that for over three
centuries, the Philippines had been colonized by Spain, a conservative, Catholic country which transplanted to our shores
the Old World cultures, mores and attitudes and values. Through the imposition on our government of the Spanish Civil
Code in 1889, the people, both men and women, had no choice but to accept such concepts as the husband's being the
head of the family and the wife's subordination to his authority. In such role, his was the right to make vital decisions for
the family. Many instances come to mind, foremost being what is related to the issue before us, namely, that "the husband
shall fix the residence of the family." 3 Because he is made responsible for the support of the wife and the rest of the
family, 4 he is also empowered to be the administrator of the conjugal property, with a few exceptions 5 and may,
therefore, dispose of the conjugal partnership property for the purposes specified under the law;6 whereas, as a general
rule, the wife cannot bind the conjugal partnership without the husband's consent.7 As regards the property pertaining
to the children under parental authority, the father is the legal administrator and only in his absence may the mother
assume his powers.8 Demeaning to the wife's dignity are certain strictures on her personal freedoms, practically
relegating her to the position of minors and disabled persons. To illustrate a few: The wife cannot, without the
husband's consent, acquire any gratuitous title, except from her ascendants, descendants, parents-in-law, and
collateral relatives within the fourth degree.9 With respect to her employment, the husband wields a veto power in the
case the wife exercises her profession or occupation or engages in business, provided his income is sufficient for the
family, according to its social standing and his opposition is founded on serious and valid grounds. 10 Most offensive, if
not repulsive, to the liberal-minded is the effective prohibition upon a widow to get married till after three hundred
days following the death of her husband, unless in the meantime, she has given birth to a child. 11 The mother who
contracts a subsequent marriage loses the parental authority over her children, unless the deceased husband, father of
the latter, has expressly provided in his will that his widow might marry again, and has ordered that in such case she
should keep and exercise parental authority over their children. 12 Again, an instance of a husband's overarching
influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no protest from them until
the concept of human rights and equality between and among nations and individuals found hospitable lodgment in
the United Nations Charter of which the Philippines was one of the original signatories. By then, the Spanish
"conquistadores" had been overthrown by the American forces at the turn of the century. The bedrock of the U.N.
Charter was firmly anchored on this credo: "to reaffirm faith in the fundamental human rights, in the dignity and worth
of the human person, in the equal rights of men and women." (Emphasis supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the burgeoning of the feminist
movement. What may be regarded as the international bill of rights for women was implanted in the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by the U.N. General Assembly which
entered into force as an international treaty on September 3, 1981. In ratifying the instrument, the Philippines bound
itself to implement its liberating spirit and letter, for its Constitution, no less, declared that "The Philippines. . . adopts
the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations." 13 One such principle embodied in the CEDAW is
granting to men and women "the same rights with regard to the law relating to the movement of persons and
the freedom to choose their residence and domicile." 14(Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the 1987 Constitution of the
Philippines and later, in the Family Code, 15 both of which were speedily approved by the first lady President of the
country, Corazon C. Aquino. Notable for its emphasis on the human rights of all individuals and its bias for equality
between the sexes are the following provisions: "The State values the dignity of every human person and guarantees
full respect for human rights"16 and "The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men."17
A major accomplishment of women in their quest for equality with men and the elimination of discriminatory provisions
of law was the deletion in the Family Code of almost all of the unreasonable strictures on wives and the grant to them of
personal rights equal to that of their husbands. Specifically, the husband and wife are now given the right jointly to fix the
family domicile;18 concomitant to the spouses' being jointly responsible for the support of the family is the right and duty
of both spouses to manage the household;19 the administration and the enjoyment of the community property shall
belong to both spouses jointly;20 the father and mother shall now jointly exercise legal guardianship over the property of
their unemancipated common child21 and several others.
Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned, Congress passed a law
popularly known as "Women in Development and Nation Building Act"22 Among the rights given to married women
evidencing their capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements under the
same conditions as men;
(2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans and
non material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and
(4) Married women shall have rights equal to those of married men in applying for passports, secure visas and other travel
documents, without need to secure the consent of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court now be the first to
respond to its clarion call that "Women's Rights are Human Rights" and that "All obstacles to women's full participation in
decision-making at all levels, including the family" should be removed. Having been herself a Member of the Philippine
Delegation to the International Women's Year Conference in Mexico in 1975, this writer is only too keenly aware of the
unremitting struggle being waged by women the world over, Filipino women not excluded, to be accepted as equals of
men and to tear down the walls of discrimination that hold them back from their proper places under the sun.
In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more rights to
women hitherto denied them and eliminating whatever pockets of discrimination still exist in their civil, political and social
life, can it still be insisted that widows are not at liberty to choose their domicile upon the death of their husbands but
must retain the same, regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the domicile of the
departed husband, if at all she was before. Neither does she automatically revert to her domicile of origin, but exercising
free will, she may opt to reestablish her domicile of origin. In returning to Tacloban and subsequently, to Barangay Olot,
Tolosa, both of which are located in the First District of Leyte, petitioner amply demonstrated by overt acts, her election
of a domicile of choice, in this case, a reversion to her domicile of origin. Added together, the time when she set up her
domicile in the two places sufficed to meet the one-year requirement to run as Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and render
steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A compliant
transience of a constitution belittles its basic function and weakens its goals. A constitution may well become outdated by
the realities of time. When it does, it must be changed but while it remains, we owe it respect and allegiance. Anarchy,
open or subtle, has never been, nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes,
or the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessary
implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These
provisions read:
Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines
and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not
less than one year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge
of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal
shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who
shall be chosen on the basis of proportional representation from the political parties and the parties or organizations
registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulations
relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to the contrary,
should include its authority to pass upon the qualification and disqualification prescribed by law of candidates to an
elective office. Indeed, pre-proclamation controversies are expressly placed under the COMELEC's jurisdiction to hear and
resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the observance of the constitutional one-year residency requirement. The issue
(whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to
such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject
only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term
"residence" has a broader connotation that may mean permanent (domicile), official (place where one's official duties
may require him to stay) or temporary (the place where he sojourns during a considerable length of time). For civil law
purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural person
is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as used in
the election law is synonymous with "domicile," which imports not only an intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention." "Domicile" denotes a fixed permanent
residence to which when absent for business or pleasure, or for like reasons, one intends to return. . . . . Residence thus
acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by
choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an
intention to abandon the old domicile. In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.
Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave abuse of
discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal
concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since become a
"member" of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation
of a candidate is just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in
an election exercise. I believe, it is not. A ministerial duty is an obligation the performance of which, being adequately
defined, does not allow the use of further judgment or discretion. The COMELEC, in its particular case, is tasked with the
full responsibility of ascertaining all the facts and conditions such as may be required by law before a proclamation is
properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of
authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their
exclusive domain. The nagging question, if it were otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to later come up with its own judgment in a contest "relating to
the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of Republic
Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
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.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven
days before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for
him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final, judgment before an election
to be disqualified, and he is voted for and receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instances
they ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at the argument that it should be
sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be
counted in his or her favor and must accordingly be considered to be stray votes. The argument, nevertheless, is far
outweighed by the rationale of the now prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil.
238 [1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137
SCRA 740 [1985]), was restored, along with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by
the Labo (176 SCRA 1 (1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235
SCRA 436 [1994]) rulings. Benito vs. Comelec was a unanimous decision penned by Justice Kapunan and concurred in by
Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and
Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent, who filed the quo warrantopetition, can replace
the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in
the election, he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that
case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified
as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default.
That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr.,
Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad
Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official
leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo
v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine
first announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez,
Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and
Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.) another took no part,
(Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate
who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in
the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in
the election. (20 Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible
for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number
of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts
a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was
alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J., separate opinion:
In my view the issue in this case is whether the Commission on Elections has the power to disqualify candidates on the
ground that they lack eligibility for the office to which they seek to be elected. I think that it has none and that the
qualifications of candidates may be questioned only in the event they are elected, by filing a petition for quo warranto or
an election protest in the appropriate forum, not necessarily in the COMELEC but, as in this case, in the House of
Representatives Electoral Tribunal. That the parties in this case took part in the proceedings in the COMELEC is of no
moment. Such proceedings were unauthorized and were not rendered valid by their agreement to submit their dispute
to that body.
The various election laws will be searched in vain for authorized proceedings for determining a candidate's qualifications
for an office before his election. There are none in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law
of 1987 (R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166). There are, in other words, no
provisions for pre-proclamation contests but only election protests or quo warrantoproceedings against winning
candidates.
To be sure, there are provisions denominated for "disqualification," but they are not concerned with a declaration of the
ineligibility of a candidate. These provisions are concerned with the incapacity (due to insanity, incompetence or
conviction of an offense) of a person either to be a candidate or to continue as a candidate for public office. There is also
a provision for the denial or cancellation of certificates of candidacy, but it applies only to cases involving false
representations as to certain matters required by law to be stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
§ 12. Disqualifications. — Any person who has been declared by competent authority insane or incompetent, or has been
sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to
a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his
service of sentence, unless within the same period he again becomes disqualified. (Emphasis added)
§ 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision of
a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism
to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83,
85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if
he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as
permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the
election laws. (Emphasis added)
§ 78. Petition to deny due course to or cancel a certificate of
candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate
of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis
added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
§ 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 for 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. (Emphasis added).
§ 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall
apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa
Blg. 881.
and the Local Government Code of 1991 (R.A. No. 7160):
§ 40. Disqualifications. — The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail
of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For Cancellation and
Disqualification," contained no allegation that private respondent Imelda Romualdez-Marcos made material
representations in her certificate of candidacy which were false, it sought her disqualification on the ground that "on the
basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified from running for the position of
Representative, considering that on election day, May 8, 1995, [she] would have resided less than ten (10) months in the
district where she is seeking to be elected." For its part, the COMELEC's Second Division, in its resolution of April 24, 1995,
cancelled her certificate of candidacy and corrected certificate of candidacy on the basis of its finding that petitioner is
"not qualified to run for the position of Member of the House of Representatives for the First Legislative District of Leyte"
and not because of any finding that she had made false representations as to material matters in her certificate of
candidacy.
Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of candidacy under §
78 of the Omnibus Election Code, but essentially a petition to declare private respondent ineligible. It is important to note
this, because, as will presently be explained, proceedings under § 78 have for their purpose to disqualify a person from
being a candidate, whereas quo warranto proceedings have for their purpose to disqualify a person from holding public
office. Jurisdiction over quo warranto proceedings involving members of the House of Representatives is vested in the
Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of candidacy, the
allegations were that the respondent candidates had made false representations in their certificates of candidacy with
regard to their citizenship,1 age,2 or residence.3 But in the generality of cases in which this Court passed upon the
qualifications of respondents for office, this Court did so in the context of election protests 4 or quo
warrantoproceedings5 filed after the proclamation of the respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the
qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility
for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election
offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his disqualification is being sought. That is why it is provided
that if the grounds for disqualification are established, a candidate will not be voted for; if he has been voted for, the votes
in his favor will not be counted; and if for some reason he has been voted for and he has won, either he will not be
proclaimed or his proclamation will be set aside.6
Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this case, his domicile,
may take a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in
the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence
was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the summary character of
proceedings relating to certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers.7 The law is satisfied if candidates state in their certificates of candidacy
that they are eligible for the position which they seek to fill, leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in cases involving charges of false representations made in
certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President,
Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve the prerogatives
of the House of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of Congress or of the President and Vice President, as the case may
be.
By providing in § 253 for the remedy of quo warranto for determining an elected official's qualifications after the results
of elections are proclaimed, while being conspicuously silent about a pre-proclamation remedy based on the same ground,
the Omnibus Election Code, or OEC, by its silence underscores the policy of not authorizing any inquiry into the
qualifications of candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC
amended its rules on February 15, 1993 so as to provide in Rule 25, § 1 the following:
Grounds for disqualification. — Any candidate who does not possess all the qualifications of a candidate as provided for
by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act
is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its
rulemaking power under Art. IX, A, § 6 of the Constitution, cannot do. It is noteworthy that the Constitution withholds
from the COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. (Art. IX, C, § 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to
the evident intention of the law. For not only in their grounds but also in their consequences are proceedings for
"disqualification" different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated,
are based on grounds specified in §§ 12 and 68 of the Omnibus Election Code and in § 40 of the Local Government Code
and are for the purpose of barring an individual from becoming a candidate or from continuing as a candidate for public
office. In a word, their purpose is to eliminate a candidate from the race either from the start or during its progress.
"Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for
holding public office and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from
office.
Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified
from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy
in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in § 2 of the law does not imply
that he does not suffer from any of disqualifications provided in § 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election practices or
offenses, like other pre-proclamation remedies, are aimed at the detestable practice of "grabbing the proclamation and
prolonging the election protest,"8 through the use of "manufactured" election returns or resort to other trickery for the
purpose of altering the results of the election. This rationale does not apply to cases for determining a candidate's
qualifications for office before the election. To the contrary, it is the candidate against whom a proceeding for
disqualification is brought who could be prejudiced because he could be prevented from assuming office even though in
end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest or action for quo
warranto filed pursuant to § 253 of the Omnibus Election Code within 10 days after his proclamation. With respect to
elective local officials (e.g., Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such petition must
be filed either with the COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as provided in Art. IX, C, § 2(2) of
the Constitution. In the case of the President and Vice President, the petition must be filed with the Presidential Electoral
Tribunal (Art. VII, § 4, last paragraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in the case
of Congressmen, with the House of Representatives Electoral Tribunal. (Art. VI, § 17) There is greater reason for not
allowing before the election the filing of disqualification proceedings based on alleged ineligibility in the case of candidates
for President, Vice President, Senators and members of the House of Representatives, because of the same policy
prohibiting the filing of pre-proclamation cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its proceedings in
that case, including its questioned orders, are void; and that the eligibility of petitioner Imelda Romualdez-Marcos for the
office of Representative of the First District of Leyte may only be inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on Elections in SPA No. 95-009,
including its questioned orders doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner
Imelda Romualdez-Marcos ineligible and ordering her proclamation as Representative of the First District of Leyte
suspended. To the extent that Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the disqualification
of candidates on the ground of ineligibility for the office, it should considered void.
The provincial board of canvassers should now proceed with the proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with the provision itself.
The controversy should not be blurred by what, to me, are academic disquisitions. In this particular controversy, the
Constitutional provision on point states that — "no person shall be a member of the House of Representatives unless he
is a natural-born citizen of the Philippines, and on the day of the election, is at least twenty-five (25) years of age, able to
read and write, and except the party list representatives, a registered voter in the district in which he shall be elected, and
a resident thereof for a period of not less than one year immediately preceding the day of the election." (Article VI, section
6)
It has been argued that for purposes of our election laws, the term residence has been understood as synonymous
with domicile. This argument has been validated by no less than the Court in numerous cases1 where significantly
the factual circumstances clearly and convincingly proved that a person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with his personal presence in the place, coupled with conduct indicative of such
intention.
With this basic thesis in mind, it would not be difficult to conceive of different modalities within which the phrase "a
resident thereof (meaning, the legislative district) for a period of not less than one year" would fit.
The first instance is where a person's residence and domicile coincide in which case a person only has to prove that he has
been domiciled in a permanent location for not less than a year before the election.
A second situation is where a person maintains a residence apart from his domicile in which case he would have the luxury
of district shopping, provided of course, he satisfies the one-year residence period in the district as the minimum period
for eligibility to the position of congressional representative for the district.
In either case, one would not be constitutionally disqualified for abandoning his residence in order to return to his domicile
of origin, or better still, domicile of choice; neither would one be disqualified for abandoning altogether his domicile in
favor of his residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a person maintains several residences in different districts.
Since his domicile of origin continues as an option as long as there is no effective abandonment (animus non revertendi),
he can practically choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a period of not less than
one year immediately preceding the day of the election", he must be a resident in the district where he desires to be
elected.
To my mind, the one year residence period is crucial regardless of whether or not the term "residence" is to be
synonymous with "domicile." In other words, the candidate's intent and actual presence in one district must
in allsituations satisfy the length of time prescribed by the fundamental law. And this, because of a definite Constitutional
purpose. He must be familiar with the environment and problems of a district he intends to represent in Congress and the
one-year residence in said district would be the minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now assailed decision of the
Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en banc) —
In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban
City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1948 when she graduated from high school. She
pursued her college studies in St. Paul's College, now Divine Word University of Tacloban, where she earned her degree
in Education. Thereafter, she taught in the Leyte Chinese High School, still in Tacloban City. In 1952 she went to Manila to
work with her cousin, the late Speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she
married ex-president Ferdinand Marcos when he was still a congressman of Ilocos Norte. She lived with him in Batac,
Ilocos Norte and registered there as a voter. When her husband was elected Senator of the Republic in 1959, she and her
husband lived together in San Juan, Rizal where she registered as a voter. In 1965 when her husband was elected President
of the Republic of the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of the Batasang Pambansa, Minister of Human
Settlements and Governor of Metro Manila. She claimed that in February 1986, she and her family were abducted and
kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992 respondent ran for election as
President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and
registered voter of San Juan, Metro Manila. On August 24, 1994, respondent filed a letter with the election officer of San
Juan, Metro Manila, requesting for cancellation of her registration in the Permanent List of Voters in Precinct No. 157 of
San Juan, Metro Manila, in order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B,
Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of Voter's Previous Registration
(Annex 2-C, Answer) stating that she is a duly registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she intends
to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte. She filed with the Board
of Election Inspectors CE Form No. 1, Voter Registration Record No. 94-3349772, wherein she alleged that she has resided
in the municipality of Tolosa for a period of 6 months (Annex A, Petition).
On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte, a Certificate of Candidacy
for the position of Representative of the First District of Leyte wherein she also alleged that she has been a resident in the
constituency where she seeks to be elected for a period of 7 months. The pertinent entries therein are as follows:
7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker
8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE ELECTED IMMEDIATELY PRECEDING ELECTION: ________
Years SevenMonths
10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the Republic of the Philippines and
will maintain true faith and allegiance thereto; That I will obey the laws, legal orders and decrees promulgated by the duly-
constituted authorities; That the obligation imposed by my oath is assumed voluntarily, without mental reservation or
purpose of evasion; and That the facts stated herein are true to the best of my knowledge.
(Sgd.) Imelda Romualdez-Marcos
2
(Signature of Candidate)
Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive component or seed of her
disqualification. It is contained in her answer under oath of "seven months" to the query of "residence in the constituency
wherein I seek to be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in holding that petitioner is
disqualified from the position of representative for the 1st congressional district of Leyte in the elections of
8 May 1995, for failure to meet the "not less than one-year residence in the constituency (1st district, Leyte) immediately
preceding the day of election
(8 May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the next important issue
to resolve is whether or not the Comelec can order the Board of Canvassers to determine and proclaim the winner out of
the remaining qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R. 86564, August 1, 1989,
176 SCRA 1 which gave the rationale as laid down in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by those who have received the highest number of votes
cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be
declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes
cast in the election. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible
for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number
of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts
a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was
alive, qualified, or eligible, they should not be treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other purposes) (84 O.G.
905, 22 February 1988) it is provided that:
. . . — 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.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of the provision quoted
above. As the law now stands, the legislative policy does not limit its concern with the effect of a final judgement of
disqualification only before the election, but even during or after the election. The law is clear that in all situations, the
votes cast for a disqualified candidate SHALL NOT BE COUNTED. The law has also validated the jurisdiction of the Court or
Commission on Election to continue hearing the petition for disqualification in case a candidate is voted for and receives
the highest number of votes, if for any reason, he is not declared by final judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation (when evidence of his guilt is
strong) is also explicit under the law. What happens then when after the elections are over, one is declared disqualified?
Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the highest number of
votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning
candidate is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes
as a result of the votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-
examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications
prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the
ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of Leyte to proclaim the
candidate receiving the highest number of votes, from among the qualified candidates, as the duly elected representative
of the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the same conclusion
drawn therefrom Hence, this dissent which assuredly is not formulated "on the basis of the personality of a petitioner in
a case."
I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to this case, and which
I have simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban City, she being a legitimate
daughter of parents who appear to have taken up permanent residence therein. She also went to school there and, for a
time, taught in one of the schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos Norte, by operation of law
she acquired a new domicile in that place in 1954.
3. In the successive years and during the events that happened thereafter, her husband having been elected as a Senator
and then as President, she lived with him and their family in San Juan, Rizal and then in Malacanang Palace in San Miguel,
Manila.
4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then in San Juan, Rizal, and also in
San Miguel, Manila, all these merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those lofty positions successively, ever abandoned his
domicile of origin in Batac, Ilocos Norte where he maintained his residence and invariably voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos family in Honolulu, Hawaii,
U.S.A., she eventually returned to the Philippines in 1991 and resided in different places which she claimed to have been
merely temporary residences.
7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of candidacy she indicated that
she was then a registered voter and resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her registration in the Permanent List of Voters in Precinct
No. 157 of San Juan, Metro Manila in order that she may "be re-registered or transferred to Brgy. Olot, Tolosa, Leyte." On
August 31, 1994, she followed this up with her Sworn Application for Cancellation of Voter's Previous Registration wherein
she stated that she was a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she
intended to register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte, for which purpose she
filed with the therein Board of Election Inspectors a voter's registration record form alleging that she had resided in that
municipality for six months.
10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of Representative of the First District of
Leyte wherein she alleged that she had been a resident for "Seven Months" of the constituency where she sought to be
elected.
11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein her answer in the original
certificate of candidacy to item "8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:" was changed or replaced with a new entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with the residency
requirement of one year as mandated by no less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation on the difference between residence and
domicile. We have had enough of that and I understand that for purposes of political law and, for that matter of
international law, residence is understood to be synonymous with domicile. That is so understood in our jurisprudence
and in American Law, in contradistinction to the concept of residence for purposes of civil, commercial and procedural
laws whenever an issue thereon is relevant or controlling.
Consequently, since in the present case the question of petitioner's residence is integrated in and inseparable from her
domicile, I am addressing the issue from the standpoint of the concept of the latter term, specifically its permutations into
the domicile of origin, domicile of choice and domicile by operation of law, as understood in American law from which for
this case we have taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or what is termed the "domicile of origin,"
constitutes the domicile of an infant until abandoned, or until the acquisition of a new domicile in a different place.1 In
the instant case, we may grant that petitioner's domicile of origin, 2 at least as of 1938, was what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth, domicile by choice, and
domicile by operation of law. The first is the common case of the place of birth or domicilium originis, the second is that
which is voluntarily acquired by a party or domicilium propio motu; the last which is consequential, as that of a wife arising
from marriage,3 is sometimes called domicilium necesarium. There is no debate that the domicile of origin can be lost or
replaced by a domicile of choice or a domicile by operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or
American but of our own enactment, 4 she acquired her husband's domicile of origin in Batac, Ilocos Norte and
correspondingly lost her own domicile of origin in Tacloban City.
Her subsequent changes of residence — to San Juan, Rizal, then to San Miguel, Manila, thereafter to Honolulu, Hawaii,
and back to now San Juan, Metro Manila — do not appear to have resulted in her thereby acquiring new domiciles of
choice. In fact, it appears that her having resided in those places was by reason of the fortunes or misfortunes of her
husband and his peregrinations in the assumption of new official positions or the loss of them. Her residence in Honolulu
and, of course, those after her return to the Philippines were, as she claimed, against her will or only for transient purposes
which could not have invested them with the status of domiciles of choice.5
After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite residency in Tacloban
City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to acquire any other domicile of choice which
could have resulted in the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note the majority's
own submission 6 that, to successfully effect a change of domicile, one must demonstrate (a) an actual removal or an
actual change of domicile, (b) a bona fide intention of abandoning the former place of residence and establishing a new
one, and (c) acts which correspond with the purpose.
We consequently have to also note that these requirements for the acquisition of a domicile of choice apply whether what
is sought to be changed or substituted is a domicile of origin (domicilium originis) or a domicile by operation of law
(domicilium necesarium). Since petitioner had lost her domicilium originis which had been replaced by her domicilium
necesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which, if at all, can be the object of legal change
under the contingencies of the case at bar.
To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner Regalado E. Maambong
in SPA 95-009 of the Commission on Elections,7 and advances this novel proposition.
It may be said that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President
Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law (domicilium necesarium), her legal domicile at the time of her
marriage became Batac, Ilocos Norte although there were no indications of an intention on her part to abandon her
domicile of origin. Because of her husband's subsequent death and through the operation of the provisions of the New
Family Code already in force at the time, however, her legal domicile automatically reverted to her domicile of origin. . . .
(Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium necesarium in Batac, Ilocos
Norte, the majority insists on making a qualification that she did not intend to abandon her domicile of origin. I find this
bewildering since, in this situation, it is the law that declares where petitioner's domicile is at any given time, and not her
self-serving or putative intent to hold on to her former domicile. Otherwise, contrary to their own admission that one
cannot have more than one domicile at a time,8 the majority would be suggesting that petitioner retained Tacloban City
as (for lack of a term in law since it does not exist therein) the equivalent of what is fancied as a reserved, dormant,
potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance with law. However, we
are here being titillated with the possibility of an automatic reversion to or reacquisition of a domicile of origin after the
termination of the cause for its loss by operation of law. The majority agrees that since petitioner lost her domicile of
origin by her marriage, the termination of the marriage also terminates that effect thereof. I am impressed by the
ingeniousness of this theory which proves that, indeed, necessity is the mother of inventions. Regretfully, I find some
difficulty in accepting either the logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily abandons the former in
favor of the latter. If, thereafter, he abandons that chosen domicile, he does not per se recover his original domicile unless,
by subsequent acts legally indicative thereof, he evinces his intent and desire to establish the same as his new domicile,
which is precisely what petitioner belatedly and, evidently just for purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile of origin, not only
because there is no legal authority therefor but because it would be absurd Pursued to its logical consequence, that theory
of ipso jure reversion would rule out the fact that said party could already very well have obtained another domicile, either
of choice or by operation of law, other than his domicile of origin. Significantly and obviously for this reason, the Family
Code, which the majority inexplicably invokes, advisedly does not regulate this contingency since it would impinge on
one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we assume that she
entered into the marital state against her will) but, on top of that, such abandonment was further affirmed through her
acquisition of a new domicile by operation of law. In fact, this is even a case of both voluntary and legal abandonment of
a domicile of origin. With much more reason, therefore, should we reject the proposition that with the termination of her
marriage in 1989, petitioner had supposedly per se and ipso facto reacquired her domicile of origin which she lost in 1954.
Otherwise, this would be tantamount to saying that during the period of marital coverture, she was simultaneously in
possession and enjoyment of a domicile of origin which was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husband's death the wife has the right to elect her
own domicile,9 she nevertheless retains the last domicile of her deceased husband until she makes an actual change. 10 In
the absence of affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal residence follows
that of her husband and will continue after his death. 11
I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of the Family
Code. All that is of any relevance therein is that under this new code, the right and power to fix the family domicile is now
shared by the spouses. I cannot perceive how that joint right, which in the first place was never exercised by the spouses,
could affect the domicile fixed by the law for petitioner in 1954 and, for her husband, long prior thereto. It is true that a
wife now has the coordinate power to determine the conjugal or family domicile, but that has no bearing on this case.
With the death of her husband, and each of her children having gotten married and established their own respective
domiciles, the exercise of that joint power was and is no longer called for or material in the present factual setting of this
controversy. Instead, what is of concern in petitioner's case was the matter of her having acquired or not her own domicile
of choice.
I agree with the majority's discourse on the virtues of the growing and expanded participation of women in the affairs of
the nation, with equal rights and recognition by Constitution and statutory conferment. However, I have searched in vain
for a specific law or judicial pronouncement which either expressly or by necessary implication supports the majority's
desired theory of automatic reacquisition of or reversion to the domicilium originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern this issue, there is a world of difference; and, unquestionably,
this should be resolved by legislative articulation but not by the eloquence of the well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having automatically reacquired
any domicile therein, she cannot legally claim that her residency in the political constituency of which it is a part continued
since her birth up to the present. Respondent commission was, therefore, correct in rejecting her pretension to that effect
in her amended/corrected certificate of candidacy, and in holding her to her admission in the original certificate that she
had actually resided in that constituency for only seven months prior to the election. These considerations render it
unnecessary to further pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan, more particularly on
the issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the COMELEC may be brought
to this Court only by the special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA
251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess of jurisdiction or with
grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since the COMELEC has, undoubtedly, jurisdiction over the
private respondent's petition, the only issue left is whether it acted with grave abuse of discretion in disqualifying the
petitioner.
My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second Division and
the En Banc resolution of 7 May 1995 discloses total absence of abuse of discretion, much less grave abuse thereof. The
resolution of the Second Division dispassionately and objectively discussed in minute details the facts which established
beyond cavil that herein petitioner was disqualified as a candidate on the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied, miscomprehended, or misunderstood facts or circumstances of
substance pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the petitioner has
abandoned Tolosa as her domicile of origin, which is allegedly within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or by documentary
evidence, overwhelming proof of the loss or abandonment of her domicile of origin, which is Tacloban City and not Tolosa,
Leyte. Assuming that she decided to live again in her domicile of origin, that became her second domicile of choice, where
her stay, unfortunately, was for only seven months before the day of the election. She was then disqualified to be a
candidate for the position of Representative of the First Congressional District of Leyte. A holding to the contrary would
be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or Tolosa, Leyte. Nevertheless,
she lost it by operation of law sometime in May 1954 upon her marriage to the then Congressman (later, President)
Ferdinand E. Marcos. A domicile by operation of law is that domicile which the law attributes to a person, independently
of his own intention or actual residence, as results from legal domestic relations as that of the wife arising from marriage
(28 C.J.S. Domicile § 7, 11). Under the governing law then, Article 110 of the Civil Code, her new domicile or her domicile
of choice was the domicile of her husband, which was Batac, Ilocos Norte. Said Article reads as follows:
Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband
if he should live abroad unless in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the husband has a predominant right because he is
empowered by law to fix the family residence. This right even predominates over some rights recognized by law in the
wife. For instance, under article 117 the wife may engage in business or practice a profession or occupation. But because
of the power of the husband to fix the family domicilehe may fix it at such a place as would make it impossible for the wife
to continue in business or in her profession. For justifiable reasons, however, the wife may be exempted from living in the
residence chosen by the husband. The husband cannot validly allege desertion by the wife who refuses to follow him to a
new place of residence, when it appears that they have lived for years in a suitable home belonging to the wife, and that
his choice of a different home is not made in good faith. (Commentaries and Jurisprudence on the Civil Code of the
Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her own domicile and, by operation of law, acquires that of her
husband, no matter where the wife actually lives or what she believes or intends. Her domicile is fixed in the sense that it
is declared to be the same as his, and subject to certain limitations, he can change her domicile by changing his own (25
Am Jur 2d Domicile § 48, 37).
It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family domicile is no longer
the sole prerogative of the husband, but is now a joint decision of the spouses, and in case of disagreement the court shall
decide. The said article uses the term "family domicile," and not family residence, as "the spouses may have multiple
residences, and the wife may elect to remain in one of such residences, which may destroy the duty of the spouses to live
together and its corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988],
102).
The theory of automatic restoration of a woman's domicile of origin upon the death of her husband, which the majority
opinion adopts to overcome the legal effect of the petitioner's marriage on her domicile, is unsupported by law and by
jurisprudence. The settled doctrine is that after the husband's death the wife has a right to elect her own domicile, but
she retains the last domicile of her husband until she makes an actual change (28 C.J.S. Domicile § 12, 27). Or, on the death
of the husband, the power of the wife to acquire her own domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile § 62, 45). Note that what is revived
is not her domicile of origin but her power to acquire her own domicile.
Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the time of his death —
which was Batac, Ilocos Norte, since their residences in San Juan, Metro Manila, and San Miguel, Manila, were their
residences for convenience to enable her husband to effectively perform his official duties. Their residence in San Juan
was a conjugal home, and it was there to which she returned in 1991 when she was already a widow. In her sworn
certificate of candidacy for the Office of the President in the synchronized elections of May 1992, she indicated therein
that she was a resident of San Juan, Metro Manila. She also voted in the said elections in that place.
On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a widow to acquire her own
domicile in Tolosa, Leyte, through her sworn statement requesting the Election Officer of San Juan, Metro Manila, to
cancel her registration in the permanent list of voters in Precinct 157 thereat and praying that she be "re-registered or
transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and permanent residence" (photocopy of Exhibit "B,"
attached as Annex "2" of private respondent Montejo's Comment). Notably, she contradicted this sworn statement
regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992 (photocopy of Exhibit "C," attached
as Annex "3," Id.), her Voter Registration Record sworn to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex
"5," Id.), and her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.),
she solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In the affidavit attached
to her Answer to the petition for disqualification (Annex "I" of Petition), she declared under oath that her "domicile or
residence is Tacloban City." If she did intend to return to such domicile or residence of origin why did she inform the
Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's Registration Record
and in her certificate of candidacy that her residence is Olot, Tolosa, Leyte? While this uncertainty is not important insofar
as residence in the congressional district is concerned, it nevertheless proves that forty-one years had already lapsed since
she had lost or abandoned her domicile of origin by virtue of marriage and that such length of time diminished her power
of recollection or blurred her memory.
I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and the subsequent
cases which established the principle that absence from original residence or domicile of origin to pursue studies, practice
one's profession, or engage in business in other states does not constitute loss of such residence or domicile. So is the
reliance on Section 117 of the Omnibus Election Code which provides that transfer of residence to any other place by
reason of one's "occupation; profession; employment in private and public service; educational activities; work in military
or naval reservations; service in the army, navy or air force, the constabulary or national police force; or confinement or
detention in government institutions in accordance with law" is not deemed as loss of original residence. Those cases and
legal provision do not include marriage of a woman. The reason for the exclusion is, of course, Article 110 of the Civil Code.
If it were the intention of this Court or of the legislature to consider the marriage of a woman as a circumstance which
would not operate as an abandonment of domicile (of origin or of choice), then such cases and legal provision should have
expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit (Annex "A" of her
Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or residence of origin is Tacloban City," and
that she "never intended to abandon this domicile or residence of origin to which [she] always intended to return
whenever absent." Such a claim of intention cannot prevail over the effect of Article 110 of the Civil Code. Besides, the
facts and circumstances or the vicissitudes of the petitioner's life after her marriage in 1954 conclusively establish that she
had indeed abandoned her domicile of origin and had acquired a new one animo et facto (KOSSUTH KENT KENNAN, A
Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioner's claim that she "merely committed an honest mistake"
in writing down the word "seven" in the space provided for the residency qualification requirement in the certificate of
candidacy. Such a claim is self-serving and, in the light of the foregoing disquisitions, would be all sound and fury signifying
nothing. To me, she did not commit any mistake, honest or otherwise; what she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the affirmative of an issue has
the burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of
Appeals, 221 SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the petitioner could not deny
the legal consequence thereof on the change of her domicile to that of her husband. The majority opinion rules or at least
concludes that "[b]y operation of law (domicilium necesarium), her legal domicile at the time of her marriage automatically
became Batac, Ilocos Norte." That conclusion is consistent with Article 110 of the Civil Code. Since she is presumed to
retain her deceased husband's domicile until she exercises her revived power to acquire her own domicile, the burden is
upon her to prove that she has exercised her right to acquire her own domicile. She miserably failed to discharge that
burden.
I vote to deny the petition.
Separate Opinions
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are alike should be treated alike, while things that are unalike should
be treated unalike in proportion to their unalikeness.1 Like other candidates, petitioner has clearly met the residence
requirement provided by Section 6, Article VI of the Constitution.2 We cannot disqualify her and treat her unalike, for the
Constitution guarantees equal protection of the law. I proceed from the following factual and legal propositions:
First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled in Tacloban.
Their ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to school and thereafter
worked there. I consider Tacloban as her initial domicile, both her domicile of origin and her domicile of choice. Her
domicile of origin as it was the domicile of her parents when she was a minor; and her domicile of choice, as she continued
living there even after reaching the age of majority.
Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand E. Marcos. By
contracting marriage, her domicile became subject to change by law, and the right to change it was given by Article 110
of the Civil Code provides:
Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband
if he should live abroad unless in the service of the Republic.3 (Emphasis supplied)
In De la Viña v. Villareal and Geopano,4 this Court explained why the domicile of the wife ought to follow that of the
husband. We held: "The reason is founded upon the theoretic identity of person and interest between the husband and
the wife, and the presumption that, from the nature of the relation, the home of one is the home of the other. It is
intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where union and
harmony prevail."5 In accord with this objective, Article 109 of the Civil Code also obligated the husband and wife "to live
together."
Third. The difficult issues start as we determine whether petitioner's marriage to former President Marcos ipso
facto resulted in the loss of her Tacloban domicile. I respectfully submit that her marriage by itself alone did not cause her
to lose her Tacloban domicile. Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the
family. In the exercise of the right, the husband may explicitly choose the prior domicile of his wife, in which case, the
wife's domicile remains unchanged. The husband can also implicitly acquiesce to his wife's prior domicile even if it is
different. So we held in de la Viña,6
. . . . When married women as well as children subject to parental authority live, with the acquiescence of their husbands or
fathers, in a place distinct from where the latter live, they have their own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the husband that will
change the domicile of a wife from what it was prior to their marriage. The domiciliary decision made by the husband in
the exercise of the right conferred by Article 110 of the Civil Code binds the wife. Any and all acts of a wife during her
coverture contrary to the domiciliary choice of the husband cannot change in any way the domicile legally fixed by the
husband. These acts are void not only because the wife lacks the capacity to choose her domicile but also because they
are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised his right to fix the family domicile and
established it in Batac, Ilocos Norte, where he was then the congressman. At that particular point of time and throughout
their married life, petitioner lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed by
operation of law, it was not affected in 1959 when her husband was elected as Senator, when they lived in San Juan, Rizal
and where she registered as a voter. It was not also affected in 1965 when her husband was elected President, when they
lived in Malacañang Palace, and when she registered as a voter in San Miguel, Manila. Nor was it affected when she served
as a member of the Batasang Pambansa, Minister of Human Settlements and Governor of Metro Manila during the
incumbency of her husband as President of the nation. Under Article 110 of the Civil Code, it was only her husband who
could change the family domicile in Batac and the evidence shows he did not effect any such change. To a large degree,
this follows the common law that "a woman on her marriage loses her own domicile and by operation of law, acquires
that of her husband, no matter where the wife actually lives or what she believes or intends."7
Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of former President
Marcos on petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2) schools of thought
contend for acceptance. One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying on
American authorities.8 He echoes the theory that after the husband's death, the wife retains the last domicile of her
husband until she makes an actual change.
I do not subscribe to this submission. The American case law that the wife still retains her dead husband's domicile is
based on ancient common law which we can no longer apply in the Philippine setting today. The common law identified
the domicile of a wife as that of the husband and denied to her the power of acquiring a domicile of her own separate and
apart from him.9 Legal scholars agree that two (2) reasons support this common law doctrine. The first reason as
pinpointed by the legendary Blackstone is derived from the view that "the very being or legal existence of the woman is
suspended during
10
the marriage, or at least is incorporated and consolidated into that of the husband." The second reason lies in "the
desirability of having the interests of each member of the family unit governed by the same law."11 The presumption that
the wife retains the domicile of her deceased husband is an extension of this common law concept. The concept and its
extension have provided some of the most iniquitous jurisprudence against women. It was under common law that the
1873 American case of Bradwell v. Illinois 12 was decided where women were denied the right to practice law. It was
unblushingly ruled that "the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it
for many of the occupations of civil life . . . This is the law of the Creator." Indeed, the rulings relied upon by Mr. Justice
Davide in CJS 13 and AM JUR 2d14 are American state court decisions handed down between the years 191715 and
1938,16 or before the time when women were accorded equality of rights with men. Undeniably, the women's liberation
movement resulted in far-ranging state legislations in the United States to eliminate gender inequality.17 Starting in the
decade of the seventies, the courts likewise liberalized their rulings as they started invalidating laws infected with gender-
bias. It was in 1971 when the US Supreme Court in Reed v.Reed,18 struck a big blow for women equality when it declared
as unconstitutional an Idaho law that required probate courts to choose male family members over females as estate
administrators. It held that mere administrative inconvenience cannot justify a sex-based distinction. These significant
changes both in law and in case law on the status of women virtually obliterated the iniquitous common law surrendering
the rights of married women to their husbands based on the dubious theory of the parties' theoretic oneness. The Corpus
Juris Secundum editors did not miss the relevance of this revolution on women's right as they observed: "However, it has
been declared that under modern statutes changing the status of married women and departing from the common law
theory of marriage, there is no reason why a wife may not acquire a separate domicile for every purpose known to the
law."19In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable American Law
Institute also categorically stated that the view of Blackstone ". . . is no longer held. As the result of statutes and court
decisions, a wife now possesses practically the same rights and powers as her unmarried sister."20
In the case at bench, we have to decide whether we should continue clinging to the anachronistic common law that
demeans women, especially married women. I submit that the Court has no choice except to break away from this
common law rule, the root of the many degradations of Filipino women. Before 1988, our laws particularly the Civil Code,
were full of gender discriminations against women. Our esteemed colleague, Madam Justice Flerida Ruth Romero, cited a
few of them as follows:21
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives suffer under certain restrictions or disabilities. For
instance, the wife cannot accept gifts from others, regardless of the sex of the giver or the value of the gift, other than
from her very close relatives, without her husband's consent. She may accept only from, say, her parents, parents-in-law,
brothers, sisters and the relatives within the so-called fourth civil degree. She may not exercise her profession or
occupation or engage in business if her husband objects on serious grounds or if his income is sufficient to support their
family in accordance with their social standing. As to what constitutes "serious grounds" for objecting, this is within the
discretion of the husband.
xxx xxx xxx
Because of the present inequitable situation, the amendments to the Civil Law being proposed by the University of the
Philippines Law Center would allow absolute divorce which severes the matrimonial ties, such that the divorced spouses
are free to get married a year after the divorce is decreed by the courts. However, in order to place the husband and wife
on an equal footing insofar as the bases for divorce are concerned, the following are specified as the grounds for absolute
divorce: (1) adultery or having a paramour committed by the respondent in any of the ways specified in the Revised Penal
Code or (2) an attempt by the respondent against the life of the petitioner which amounts to attempted parricide under
the Revised Penal Code; (3) abandonment of the petitioner by the respondent without just cause for a period of three
consecutive years; or (4) habitual maltreatment.
With respect to property relations, the husband is automatically the administrator of the conjugal property owned in
common by the married couple even if the wife may be the more astute or enterprising partner. The law does not leave
it to the spouses to decide who shall act as such administrator. Consequently, the husband is authorized to engage in acts
and enter into transactions beneficial to the conjugal partnership. The wife, however, cannot similarly bind the partnership
without the husband's consent.
And while both exercise joint parental authority over their children, it is the father whom the law designates as the legal
administrator of the property pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate inequality between
men and women in our land. The watershed came on August 3, 1988 when our Family Code took effect which, among
others, terminated the unequal treatment of husband and wife as to their rights and responsibilities.22
The Family Code attained this elusive objective by giving new rights to married women and by abolishing sex-based
privileges of husbands. Among others, married women are now given the joint right to administer the family property,
whether in the absolute community system or in the system of conjugal partnership; 23 joint parental authority over their
minor children, both over their persons as well as their properties;24 joint responsibility for the support of the family;25 the
right to jointly manage the household;26 and, the right to object to their husband's exercise of profession, occupation,
business or activity.27 Of particular relevance to the case at bench is Article 69 of the Family Code which took away the
exclusive right of the husband to fix the family domicile and gave it jointly to the husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the
solidarity of the family. (Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife to live together, former
Madam Justice Alice Sempio-Diy of the Court of Appeals specified the instances when a wife may now refuse to live with
her husband, thus:28
(2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases like:
(a) If the place chosen by the husband as family residence is dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive conduct or insults, making common life impossible;
(c) If the husband compels her to live with his parents, but she cannot get along with her mother-in-law and they have
constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122);
(d) Where the husband has continuously carried illicit relations for 10 years with different women and treated his wife
roughly and without consideration. (Dadivas v. Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving no money to his family for food and necessities, and at the same
time insulting his wife and laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a vagabond life as a tramp (1 Manresa 329);
(g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 38 La. Ann. 70).
The inescapable conclusion is that our Family Code has completely emancipated the wife from the control of the husband,
thus abandoning the parties' theoretic identity of interest. No less than the late revered Mr. Justice J.B.L. Reyes who
chaired the Civil Code Revision Committee of the UP Law Center gave this insightful view in one of his rare lectures after
retirement:29
xxx xxx xxx
The Family Code is primarily intended to reform the family law so as to emancipate the wife from the exclusive control of
the husband and to place her at parity with him insofar as the family is concerned. The wife and the husband are now
placed on equal standing by the Code. They are now joint administrators of the family properties and exercise joint
authority over the persons and properties of their children. This means a dual authority in the family. The husband will no
longer prevail over the wife but she has to agree on all matters concerning the family. (Emphasis supplied)
In light of the Family Code which abrogated the inequality between husband and wife as started and perpetuated by the
common law, there is no reason in espousing the anomalous rule that the wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which provides the statutory support for this stance has been repealed by Article
69 of the Family Code. By its repeal, it becomes a dead-letter law, and we are not free to resurrect it by giving it further
effect in any way or manner such as by ruling that the petitioner is still bound by the domiciliary determination of her
dead husband.
Aside from reckoning with the Family Code, we have to consider our Constitution and its firm guarantees of due process
and equal protection of
30
law. It can hardly be doubted that the common law imposition on a married woman of her dead husband's domicile even
beyond his grave is patently discriminatory to women. It is a gender-based discrimination and is not rationally related to
the objective of promoting family solidarity. It cannot survive a constitutional challenge. Indeed, compared with our
previous fundamental laws, the 1987 Constitution is more concerned with equality between sexes as it explicitly commands
that the State ". . . shall ensure fundamental equality before the law of women and men." To be exact, section 14, Article
II provides: "The State recognizes the role of women in nation building, and shall ensure fundamental equality before the
law of women and men. We shall be transgressing the sense and essence of this constitutional mandate if we insist on
giving our women the caveman's treatment.
Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner reacquired her
Tacloban domicile upon the death of her husband in 1989. This is the necessary consequence of the view that petitioner's
Batac dictated domicile did not continue after her husband's death; otherwise, she would have no domicile and that will
violate the universal rule that no person can be without a domicile at any point of time. This stance also restores the right
of petitioner to choose her domicile before it was taken away by Article 110 of the Civil Code, a right now recognized by
the Family Code and protected by the Constitution. Likewise, I cannot see the fairness of the common law requiring
petitioner to choose again her Tacloban domicile before she could be released from her Batac domicile. She lost her
Tacloban domicile not through her act but through the act of her deceased husband when he fixed their domicile in Batac.
Her husband is dead and he cannot rule her beyond the grave. The law disabling her to choose her own domicile has been
repealed. Considering all these, common law should not put the burden on petitioner to prove she has abandoned her
dead husband's domicile. There is neither rhyme nor reason for this gender-based burden.
But even assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her Tacloban
domicile, still, the records reveal ample evidence to this effect. In her affidavit submitted to the respondent COMELEC,
petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after several requests for my return were denied by President
Corazon C. Aquino, and after I filed suits for our Government to issue me my passport.
37. But I came home without the mortal remains of my beloved husband, President Ferdinand E. Marcos, which the
Government considered a threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in Olot, Tolosa, Leyte, even
if my residences there were not livable as they had been destroyed and cannibalized. The PCGG, however, did not permit
and allow me.
39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay City, a friend's apartment on
Ayala Avenue, a house in South Forbes Park which my daughter rented, and Pacific Plaza, all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San Jose, Tacloban City, and
pursued my negotiations with PCGG to recover my sequestered residences in Tacloban City and Barangay Olot, Tolosa,
Leyte.
40.1 In preparation for my observance of All Saints' Day and All Souls' Day that year, I renovated my parents' burial grounds
and entombed their bones which had been excalvated, unearthed and scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for permissions to —
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot, Leyte . . . to make them livable for us the
Marcos family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG
Region 8 Representative, allowed me to repair and renovate my Leyte residences. I quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends to visit our sequestered properties in
Leyte, please allow her access thereto. She may also cause repairs and renovation of the sequestered properties, in which
event, it shall be understood that her undertaking said repairs is not authorization for her to take over said properties,
and that all expenses shall be for her account and not reimbursable. Please extend the necessary courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Niño Shrine residence in Tacloban City where I wanted to
stay and reside, after repairs and renovations were completed. In August 1994, I transferred from San Jose, Tacloban City,
to my residence in Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is not disputed that in 1992,
she first lived at the house of her brother in San Jose, Tacloban City and later, in August 1994, she transferred her residence
in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot are within the First District of Leyte. Since
petitioner reestablished her old domicile in 1992 in the First District of Leyte, she more than complied with the
constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil. He presented
petitioner's Voter's Registration Record filed with the Board of Election Inspectors of Precinct 10-A of Barangay Olot,
Tolosa, Leyte wherein she stated that her period of residence in said barangay was six (6) months as of the date of her
filing of said Voter's Registration Record on January 28, 1995.31 This statement in petitioner's Voter's Registration Record
is a non-prejudicial admission. The Constitution requires at least one (1) year residence in the district in which the
candidate shall be elected. In the case at bench, the reference is the First District of Leyte. Petitioner's
statement proved that she resided in Olot six (6) months before January 28, 1995 but did not disprovethat she has also
resided in Tacloban City starting 1992. As aforestated, Olot and Tacloban City are both within the First District of Leyte,
hence, her six (6) months residence in Olot should be counted not against, but in her favor. Private respondent also
presented petitioner's Certificate of Candidacy filed on March 8, 199532 where she placed seven (7) months after Item No.
8 which called for information regarding "residence in the constituency where I seek to be elected immediately preceding
the election." Again, this original certificate of candidacy has no evidentiary value because an March 1, 1995 it was
corrected by petitioner. In her Amended/Corrected Certificate of Candidacy,33 petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy to correct a bona fide mistake has been allowed by this Court as
a matter of course and as a matter of right. As we held in Alialy v. COMELEC,34 viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter N.P in the original certificate of candidacy presented
before the deadline September 11, 1959, did not render the certificate invalid. The amendment of the certificate, although
at a date after the deadline, but before the election, was substantial compliance with the law, and the defect was cured.
It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8, 1995 cannot be used as
evidence against her. Private respondent's petition for the disqualification of petitioner rested alone on these two (2)
brittle pieces of documentary evidence — petitioner's Voter's Registration Record and her original Certificate of
Candidacy. Ranged against the evidence of the petitioner showing her ceaseless contacts with Tacloban, private
respondent's two (2) pieces of evidence are too insufficient to disqualify petitioner, more so, to deny her the right to
represent the people of the First District of Leyte who have overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public office shall be free
from any form of harassment and discrimination."35 A detached reading of the records of the case at bench will show that
all forms of legal and extra-legal obstacles have been thrown against petitioner to prevent her from running as the people's
representative in the First District of Leyte. In petitioner's Answer to the petition to disqualify her, she averred:36
xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition is devious. When respondent
(petitioner herein) announced that she was intending to register as a voter in Tacloban City and run for Congress in the
First District of Leyte, petitioner (Montejo) immediately opposed her intended registration by writing a letter stating that
"she is not a resident of said city but of Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent's affidavit, Annex "2").
After respondent (petitioner herein) had registered as a voter in Tolosa following completion of her six-month actual
residence therein, petitioner (Montejo) filed a petition with the COMELEC to transfer the town of Tolosa from the First
District to the Second District and pursued such move up to the Supreme Court in G.R. No. 118702, his purpose being to
remove respondent (petitioner herein) as petitioner's (Montejo's) opponent in the congressional election in the First
District. He also filed a bill, along with other Leyte Congressmen, seeking to create another legislative district, to remove
the town of Tolosa out of the First District and to make it a part of the new district, to achieve his purpose. However, such
bill did not pass the Senate. Having, failed on such moves, petitioner now filed the instant petition, for the same objective,
as it is obvious that he is afraid to submit himself along with respondent (petitioner herein) for the judgment and verdict
of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995.
These allegations which private respondent did not challenge were not lost
37
to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion, held:
xxx xxx xxx
Prior to the registration date — January 28, 1995 the petitioner (herein private respondent Montejo) wrote the Election
Officer of Tacloban City not to allow respondent (petitioner herein) to register thereat since she is a resident of Tolosa and
not Tacloban City. The purpose of this move of the petitioner (Montejo) is not lost to (sic) the Commission. In UND No. 95-
001 (In the matter of the Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New
Provinces of Biliran, Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo Roy G. Montejo, Representative,
First District of Leyte, wanted the Municipality of Tolosa, in the First District of Leyte, transferred to the Second District of
Leyte. The Hon. Sergio A.F. Apostol, Representative of the Second District of Leyte, opposed the move of the petitioner
(Montejo). Under Comelec Resolution No. 2736 (December 29, 1994), the Commission on Elections refused to make the
proposed transfer. Petitioner (Montejo) filed "Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995. Petitioner (Montejo) filed a
petition for certiorari before the Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission on Elections, G.R. No.
118702) questioning the resolution of the Commission. Believing that he could get a favorable ruling from the Supreme
Court, petitioner (Montejo) tried to make sure that the respondent (petitioner herein) will register as a voter in Tolosa so
that she will be forced to run as Representative not in the First but in the Second District.
It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously promulgated a "Decision," penned by
Associate Justice Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the municipality of Capoocan of the Second
District and the municipality of Palompon of the Fourth District to the Third District of the province of Leyte, is annulled
and set aside. We also deny the Petition praying for the transfer of the municipality of Tolosa from the First District to the
Second District of the province of Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was constrained to register in the
Municipality of Tolosa where her house is instead of Tacloban City, her domicile. In any case, both Tacloban City and Tolosa
are in the First Legislative District.
All these attempts to misuse our laws and legal processes are forms of rank harassments and invidious discriminations
against petitioner to deny her equal access to a public office. We cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of equality, the end result of which will allow the harassment and discrimination of
petitioner who has lived a controversial life, a past of alternating light and shadow. There is but one Constitution for all
Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the worst way to interpret the Constitution is
to inject in its interpretation, bile and bitterness.
Sixth. In Gallego v. Vera,38 we explained that the reason for this residence requirement is "to exclude a stranger or
newcomer, unacquainted, with the conditions and needs of a community and not identified with the latter, from an
elective office to serve that community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be
contested. Nobody can claim that she is not acquainted with its problems because she is a stranger to the place. None can
argue she cannot satisfy the intent of the Constitution.
Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of the electorate. The
election results show that petitioner received Seventy Thousand Four Hundred Seventy-one (70,471) votes, while private
respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the overwhelming
choice of the electorate of the First District of Leyte and this is not a sleight of statistics. We cannot frustrate this sovereign
will on highly arguable technical considerations. In case of doubt, we should lean towards a rule that will give life to the
people's political judgment.
A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality of status between
women and men by rejecting the iniquitous common law precedents on the domicile of married women and by redefining
domicile in accord with our own culture, law, and Constitution. To rule that a married woman is eternally tethered to the
domicile dictated by her dead husband is to preserve the anachronistic and anomalous balance of advantage of a husband
over his wife. We should not allow the dead to govern the living even if the glories of yesteryears seduce us to shout long
live the dead! The Family Code buried this gender-based discrimination against married women and we should not
excavate what has been entombed. More importantly, the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of Representative of the First
Congressional District of Leyte. I wish, however, to express a few comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's habitation is fixed, without any present intention of removing
therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed his abode, or habitation,
not for a mere special or temporary purpose, but with a present intention of making it his permanent home (28 C.J.S. §1).
It denotes a fixed permanent residence to which when absent for business, or pleasure, or for like reasons one intends to
return, and depends on facts and circumstances, in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA
966, 969)
Domicile is classified into domicile of origin and domicile of choice. The law attributes to every individual a domicile of
origin, which is the domicile of his parents, or of the head of his family, or of the person on whom he is legally dependent
at the time of his birth. While the domicile of origin is generally the place where one is born or reared, it maybe elsewhere
(28 C.J.S. §5). Domicile of choice, on the other hand, is the place which the person has elected and chosen for himself to
displace his previous domicile; it has for its true basis or foundation the intention of the person (28 C.J.S. §6). In order to
hold that a person has abandoned his domicile and acquired a new one called domicile of choice, the following requisites
must concur, namely, (a) residence or bodily presence in the new locality, (b) intention to remain there or animus
manendi, and (c) an intention to abandon the old domicile or animus non revertendi (Romualdez v. RTC, Br. 7, Tacloban
City, 226 SCRA 408, 415). A third classification is domicile by operation of law which attributes to a person a domicile
independent of his own intention or actual residence, ordinarily resulting from legal domestic relations, as that of the wife
arising from marriage, or the relation of a parent and a child (28 C.J.S. §7).
In election law, when our Constitution speaks of residence for election purposes it means domicile (Co v. Electoral Tribunal
of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent
Commission on Elections misapplied this concept, of domicile which led to petitioner's disqualification by ruling that
petitioner failed to comply with the constitutionally mandated one-year residence requirement. Apparently, public
respondent Commission deemed as conclusive petitioner's stay and registration as voter in many places as conduct
disclosing her intent to abandon her established domicile of origin in Tacloban, Leyte. In several decisions, though, the
Court has laid down the rule that registration of a voter in a place other than his place of origin is not sufficient to constitute
abandonment or loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent Commission offered no cogent
reason to depart from this rule except to surmise petitioner's intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to her marriage, a domicile
by operation of law. The proposition is that upon the death of her husband in 1989 she retains her husband's domicile, i.e.,
Batac, Ilocos Norte, until she makes an actual change thereof. I find this proposition quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with another, i.e., Batac, Ilocos Norte,
upon her marriage in 1954 with then Congressman Marcos. By legal fiction she followed the domicile of her husband. In
my view, the reason for the law is for the spouses to fully and effectively perform their marital duties and obligations to
one another.1 The question of domicile, however, is not affected by the fact that it was the legal or moral duty of the
individual to reside in a given place (28 C.J.S. §11). Thus, while the wife retains her marital domicile so long as the marriage
subsists, she automatically loses it upon the latter's termination, for the reason behind the law then ceases. Otherwise,
petitioner, after her marriage was ended by the death of her husband, would be placed in a quite absurd and unfair
situation of having been freed from all wifely obligations yet made to hold on to one which no longer serves any
meaningful purpose.
It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's death
without even signifying her intention to that effect. It is for the private respondent to prove, not for petitioner to disprove,
that petitioner has effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear rule
is that it is the party (herein private respondent) claiming that a person has abandoned or lost his residence of origin who
must show and prove preponderantly such abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. §16), because
the presumption is strongly in favor of an original or former domicile, as against an acquired one (28 C.J.S. §16). Private
respondent unfortunately failed to discharge this burden as the record is devoid of convincing proof that petitioner has
acquired whether voluntarily or involuntarily, a new domicile to replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with the constitutional one-year residence
requirement. After her exile abroad, she returned to the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the
Presidential Commission on Good Government which sequestered her residential house and other properties forbade her
necessitating her transient stay in various places in Manila (Affidavit p.6, attached as Annex I of the Petition). In 1992, she
ran for the position of president writing in her certificate of candidacy her residence as San Juan, Metro Manila. After her
loss therein, she went back to Tacloban City, acquired her residence certificate2 and resided with her brother in San Jose.
She resided in San Jose, Tacloban City until August of 1994 when she was allowed by the PCGG to move and reside in her
sequestered residential house in Olot, Tolosa, Leyte (Annex I, p. 6).3 It was in the same month of August when she applied
for the cancellation of her previous registration in San Juan, Metro Manila in order to register anew as voter of Olot,
Tolosa, Leyte, which she did on January 28, 1995. From this sequence of events, I find it quite improper to use as the
reckoning period of the one-year residence requirement the date when she applied for the cancellation of her previous
registration in San Juan, Metro Manila. The fact which private respondent never bothered to disprove is that petitioner
transferred her residence after the 1992 presidential election from San Juan, Metro Manila to San Jose, Tacloban City, and
resided therein until August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing that both
Tacloban City and Tolosa, Leyte are within the First Congressional District of Leyte, it indubitably stands that she had more
than a year of residence in the constituency she sought to be elected. Petitioner, therefore, has satisfactorily complied
with the one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified from running for
Representative of her District and that, in the event that she should, nevertheless, muster a majority vote, her
proclamation should be suspended. Not by a straightforward ruling did the COMELEC pronounce its decision as has been
its unvarying practice in the past, but by a startling succession of "reverse somersaults." Indicative of its shifting stance vis-
a-vis petitioner's certificate of candidacy were first, the action of its Second Division disqualifying her and canceling her
original Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en banc of her Motion
for Reconsideration on May 7, 1995, a day before the election; then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that the results of the canvass should
show that she obtained the highest number of votes (obviously noting that petitioner had won overwhelmingly over her
opponent), but almost simultaneously reversing itself by directing that even if she wins, her proclamation should
nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at bench is the interpretation to be given to
the one-year residency requirement imposed by the Constitution on aspirants for a Congressional seat.1
Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election purposes, it is
important to determine whether petitioner's domicile was in the First District of Leyte and if so, whether she had resided
there for at least a period of one year. Undisputed is her domicile of origin, Tacloban, where her parents lived at the time
of her birth. Depending on what theory one adopts, the same may have been changed when she married Ferdinand E.
Marcos, then domiciled in Batac, by operation of law. Assuming it did, his death certainly released her from the obligation
to live with him at the residence fixed by him during his lifetime. What may confuse the layman at this point is the fact
that the term "domicile" may refer to "domicile of origin," "domicile of choice," or "domicile by operation of law," which
subject we shall not belabor since it has been amply discussed by the ponente and in the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to the effect of the husband's death on the
domicile of the widow. Some scholars opine that the widow's domicile remains unchanged; that the deceased husband's
wishes perforce still bind the wife he has left behind. Given this interpretation, the widow cannot possibly go far enough
to sever the domiciliary tie imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or domicile of the family,
as laid down in the Civil Code,2 but to continue giving obeisance to his wishes even after the rationale underlying the
mutual duty of the spouses to live together has ceased, is to close one's eyes to the stark realities of the present.
At the other extreme is the position that the widow automatically reverts to her domicile of origin upon the demise of her
husband. Does the law so abhor a vacuum that the widow has to be endowed somehow with a domicile? To answer this
question which is far from rhetorical, one will have to keep in mind the basic principles of domicile. Everyone must have
a domicile. Then one must have only a single domicile for the same purpose at any given time. Once established, a domicile
remains until a new one is acquired, for no person lives who has no domicile, as defined by the law be is subject to.
At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more murky by the
conflicting opinions of foreign legal authorities. This being the state of things, it is imperative as it is opportune to illumine
the darkness with the beacon light of truth, as dictated by experience and the necessity of according petitioner her right
to choose her domicile in keeping with the enlightened global trend to recognize and protect the human rights of women,
no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights are concerned, is a
relatively recent phenomenon that took seed only in the middle of this century. It is a historical fact that for over three
centuries, the Philippines had been colonized by Spain, a conservative, Catholic country which transplanted to our shores
the Old World cultures, mores and attitudes and values. Through the imposition on our government of the Spanish Civil
Code in 1889, the people, both men and women, had no choice but to accept such concepts as the husband's being the
head of the family and the wife's subordination to his authority. In such role, his was the right to make vital decisions for
the family. Many instances come to mind, foremost being what is related to the issue before us, namely, that "the husband
shall fix the residence of the family." 3 Because he is made responsible for the support of the wife and the rest of the
family, 4 he is also empowered to be the administrator of the conjugal property, with a few exceptions 5 and may,
therefore, dispose of the conjugal partnership property for the purposes specified under the law;6 whereas, as a general
rule, the wife cannot bind the conjugal partnership without the husband's consent.7 As regards the property pertaining
to the children under parental authority, the father is the legal administrator and only in his absence may the mother
assume his powers.8 Demeaning to the wife's dignity are certain strictures on her personal freedoms, practically
relegating her to the position of minors and disabled persons. To illustrate a few: The wife cannot, without the
husband's consent, acquire any gratuitous title, except from her ascendants, descendants, parents-in-law, and
collateral relatives within the fourth degree.9 With respect to her employment, the husband wields a veto power in the
case the wife exercises her profession or occupation or engages in business, provided his income is sufficient for the
family, according to its social standing and his opposition is founded on serious and valid grounds. 10 Most offensive, if
not repulsive, to the liberal-minded is the effective prohibition upon a widow to get married till after three hundred
days following the death of her husband, unless in the meantime, she has given birth to a child. 11 The mother who
contracts a subsequent marriage loses the parental authority over her children, unless the deceased husband, father of
the latter, has expressly provided in his will that his widow might marry again, and has ordered that in such case she
should keep and exercise parental authority over their children. 12 Again, an instance of a husband's overarching
influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no protest from them until
the concept of human rights and equality between and among nations and individuals found hospitable lodgment in
the United Nations Charter of which the Philippines was one of the original signatories. By then, the Spanish
"conquistadores" had been overthrown by the American forces at the turn of the century. The bedrock of the U.N.
Charter was firmly anchored on this credo: "to reaffirm faith in the fundamental human rights, in the dignity and worth
of the human person, in the equal rights of men and women." (Emphasis supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the burgeoning of the feminist
movement. What may be regarded as the international bill of rights for women was implanted in the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by the U.N. General Assembly which
entered into force as an international treaty on September 3, 1981. In ratifying the instrument, the Philippines bound
itself to implement its liberating spirit and letter, for its Constitution, no less, declared that "The Philippines. . . adopts
the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations." 13 One such principle embodied in the CEDAW is
granting to men and women "the same rights with regard to the law relating to the movement of persons and
the freedom to choose their residence and domicile." 14(Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the 1987 Constitution of the
Philippines and later, in the Family Code, 15 both of which were speedily approved by the first lady President of the
country, Corazon C. Aquino. Notable for its emphasis on the human rights of all individuals and its bias for equality
between the sexes are the following provisions: "The State values the dignity of every human person and guarantees
full respect for human rights"16 and "The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men."17
A major accomplishment of women in their quest for equality with men and the elimination of discriminatory provisions
of law was the deletion in the Family Code of almost all of the unreasonable strictures on wives and the grant to them of
personal rights equal to that of their husbands. Specifically, the husband and wife are now given the right jointly to fix the
family domicile;18 concomitant to the spouses' being jointly responsible for the support of the family is the right and duty
of both spouses to manage the household;19 the administration and the enjoyment of the community property shall
belong to both spouses jointly;20 the father and mother shall now jointly exercise legal guardianship over the property of
their unemancipated common child21 and several others.
Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned, Congress passed a law
popularly known as "Women in Development and Nation Building Act"22 Among the rights given to married women
evidencing their capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements under the
same conditions as men;
(2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans and
non material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and
(4) Married women shall have rights equal to those of married men in applying for passports, secure visas and other travel
documents, without need to secure the consent of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court now be the first to
respond to its clarion call that "Women's Rights are Human Rights" and that "All obstacles to women's full participation in
decision-making at all levels, including the family" should be removed. Having been herself a Member of the Philippine
Delegation to the International Women's Year Conference in Mexico in 1975, this writer is only too keenly aware of the
unremitting struggle being waged by women the world over, Filipino women not excluded, to be accepted as equals of
men and to tear down the walls of discrimination that hold them back from their proper places under the sun.
In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more rights to
women hitherto denied them and eliminating whatever pockets of discrimination still exist in their civil, political and social
life, can it still be insisted that widows are not at liberty to choose their domicile upon the death of their husbands but
must retain the same, regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the domicile of the
departed husband, if at all she was before. Neither does she automatically revert to her domicile of origin, but exercising
free will, she may opt to reestablish her domicile of origin. In returning to Tacloban and subsequently, to Barangay Olot,
Tolosa, both of which are located in the First District of Leyte, petitioner amply demonstrated by overt acts, her election
of a domicile of choice, in this case, a reversion to her domicile of origin. Added together, the time when she set up her
domicile in the two places sufficed to meet the one-year requirement to run as Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and render
steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A compliant
transience of a constitution belittles its basic function and weakens its goals. A constitution may well become outdated by
the realities of time. When it does, it must be changed but while it remains, we owe it respect and allegiance. Anarchy,
open or subtle, has never been, nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes,
or the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessary
implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These
provisions read:
Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines
and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not
less than one year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge
of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal
shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who
shall be chosen on the basis of proportional representation from the political parties and the parties or organizations
registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulations
relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to the contrary,
should include its authority to pass upon the qualification and disqualification prescribed by law of candidates to an
elective office. Indeed, pre-proclamation controversies are expressly placed under the COMELEC's jurisdiction to hear and
resolve (Art. IX, C, Sec. 3, Constitution).
The matter before us specifically calls for the observance of the constitutional one-year residency requirement. The issue
(whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to
such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject
only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term
"residence" has a broader connotation that may mean permanent (domicile), official (place where one's official duties
may require him to stay) or temporary (the place where he sojourns during a considerable length of time). For civil law
purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural person
is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as used in
the election law is synonymous with "domicile," which imports not only an intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention." "Domicile" denotes a fixed permanent
residence to which when absent for business or pleasure, or for like reasons, one intends to return. . . . . Residence thus
acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by
choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an
intention to abandon the old domicile. In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.
Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave abuse of
discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal
concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since become a
"member" of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation
of a candidate is just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in
an election exercise. I believe, it is not. A ministerial duty is an obligation the performance of which, being adequately
defined, does not allow the use of further judgment or discretion. The COMELEC, in its particular case, is tasked with the
full responsibility of ascertaining all the facts and conditions such as may be required by law before a proclamation is
properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of
authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their
exclusive domain. The nagging question, if it were otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to later come up with its own judgment in a contest "relating to
the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of Republic
Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
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.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven
days before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for
him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final, judgment before an election
to be disqualified, and he is voted for and receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instances
they ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at the argument that it should be
sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be
counted in his or her favor and must accordingly be considered to be stray votes. The argument, nevertheless, is far
outweighed by the rationale of the now prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil.
238 [1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137
SCRA 740 [1985]), was restored, along with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by
the Labo (176 SCRA 1 (1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235
SCRA 436 [1994]) rulings. Benito vs. Comelec was a unanimous decision penned by Justice Kapunan and concurred in by
Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and
Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent, who filed the quo warrantopetition, can replace
the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in
the election, he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that
case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified
as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default.
That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr.,
Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad
Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official
leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo
v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine
first announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez,
Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and
Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.) another took no part,
(Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate
who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in
the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in
the election. (20 Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible
for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number
of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts
a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was
alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J., separate opinion:
In my view the issue in this case is whether the Commission on Elections has the power to disqualify candidates on the
ground that they lack eligibility for the office to which they seek to be elected. I think that it has none and that the
qualifications of candidates may be questioned only in the event they are elected, by filing a petition for quo warranto or
an election protest in the appropriate forum, not necessarily in the COMELEC but, as in this case, in the House of
Representatives Electoral Tribunal. That the parties in this case took part in the proceedings in the COMELEC is of no
moment. Such proceedings were unauthorized and were not rendered valid by their agreement to submit their dispute
to that body.
The various election laws will be searched in vain for authorized proceedings for determining a candidate's qualifications
for an office before his election. There are none in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law
of 1987 (R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166). There are, in other words, no
provisions for pre-proclamation contests but only election protests or quo warrantoproceedings against winning
candidates.
To be sure, there are provisions denominated for "disqualification," but they are not concerned with a declaration of the
ineligibility of a candidate. These provisions are concerned with the incapacity (due to insanity, incompetence or
conviction of an offense) of a person either to be a candidate or to continue as a candidate for public office. There is also
a provision for the denial or cancellation of certificates of candidacy, but it applies only to cases involving false
representations as to certain matters required by law to be stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
§ 12. Disqualifications. — Any person who has been declared by competent authority insane or incompetent, or has been
sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to
a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his
service of sentence, unless within the same period he again becomes disqualified. (Emphasis added)
§ 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision of
a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism
to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83,
85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if
he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as
permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the
election laws. (Emphasis added)
§ 78. Petition to deny due course to or cancel a certificate of
candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate
of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis
added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
§ 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 for 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. (Emphasis added).
§ 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall
apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa
Blg. 881.
and the Local Government Code of 1991 (R.A. No. 7160):
§ 40. Disqualifications. — The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail
of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For Cancellation and
Disqualification," contained no allegation that private respondent Imelda Romualdez-Marcos made material
representations in her certificate of candidacy which were false, it sought her disqualification on the ground that "on the
basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified from running for the position of
Representative, considering that on election day, May 8, 1995, [she] would have resided less than ten (10) months in the
district where she is seeking to be elected." For its part, the COMELEC's Second Division, in its resolution of April 24, 1995,
cancelled her certificate of candidacy and corrected certificate of candidacy on the basis of its finding that petitioner is
"not qualified to run for the position of Member of the House of Representatives for the First Legislative District of Leyte"
and not because of any finding that she had made false representations as to material matters in her certificate of
candidacy.
Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of candidacy under §
78 of the Omnibus Election Code, but essentially a petition to declare private respondent ineligible. It is important to note
this, because, as will presently be explained, proceedings under § 78 have for their purpose to disqualify a person from
being a candidate, whereas quo warranto proceedings have for their purpose to disqualify a person from holding public
office. Jurisdiction over quo warranto proceedings involving members of the House of Representatives is vested in the
Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of candidacy, the
allegations were that the respondent candidates had made false representations in their certificates of candidacy with
regard to their citizenship,1 age,2 or residence.3 But in the generality of cases in which this Court passed upon the
qualifications of respondents for office, this Court did so in the context of election protests 4 or quo
warrantoproceedings5 filed after the proclamation of the respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the
qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility
for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election
offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his disqualification is being sought. That is why it is provided
that if the grounds for disqualification are established, a candidate will not be voted for; if he has been voted for, the votes
in his favor will not be counted; and if for some reason he has been voted for and he has won, either he will not be
proclaimed or his proclamation will be set aside.6
Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this case, his domicile,
may take a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in
the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence
was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the summary character of
proceedings relating to certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers.7 The law is satisfied if candidates state in their certificates of candidacy
that they are eligible for the position which they seek to fill, leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in cases involving charges of false representations made in
certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President,
Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve the prerogatives
of the House of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of Congress or of the President and Vice President, as the case may
be.
By providing in § 253 for the remedy of quo warranto for determining an elected official's qualifications after the results
of elections are proclaimed, while being conspicuously silent about a pre-proclamation remedy based on the same ground,
the Omnibus Election Code, or OEC, by its silence underscores the policy of not authorizing any inquiry into the
qualifications of candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC
amended its rules on February 15, 1993 so as to provide in Rule 25, § 1 the following:
Grounds for disqualification. — Any candidate who does not possess all the qualifications of a candidate as provided for
by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act
is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its
rulemaking power under Art. IX, A, § 6 of the Constitution, cannot do. It is noteworthy that the Constitution withholds
from the COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. (Art. IX, C, § 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to
the evident intention of the law. For not only in their grounds but also in their consequences are proceedings for
"disqualification" different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated,
are based on grounds specified in §§ 12 and 68 of the Omnibus Election Code and in § 40 of the Local Government Code
and are for the purpose of barring an individual from becoming a candidate or from continuing as a candidate for public
office. In a word, their purpose is to eliminate a candidate from the race either from the start or during its progress.
"Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for
holding public office and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from
office.
Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified
from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy
in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in § 2 of the law does not imply
that he does not suffer from any of disqualifications provided in § 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election practices or
offenses, like other pre-proclamation remedies, are aimed at the detestable practice of "grabbing the proclamation and
prolonging the election protest,"8 through the use of "manufactured" election returns or resort to other trickery for the
purpose of altering the results of the election. This rationale does not apply to cases for determining a candidate's
qualifications for office before the election. To the contrary, it is the candidate against whom a proceeding for
disqualification is brought who could be prejudiced because he could be prevented from assuming office even though in
end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest or action for quo
warranto filed pursuant to § 253 of the Omnibus Election Code within 10 days after his proclamation. With respect to
elective local officials (e.g., Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such petition must
be filed either with the COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as provided in Art. IX, C, § 2(2) of
the Constitution. In the case of the President and Vice President, the petition must be filed with the Presidential Electoral
Tribunal (Art. VII, § 4, last paragraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in the case
of Congressmen, with the House of Representatives Electoral Tribunal. (Art. VI, § 17) There is greater reason for not
allowing before the election the filing of disqualification proceedings based on alleged ineligibility in the case of candidates
for President, Vice President, Senators and members of the House of Representatives, because of the same policy
prohibiting the filing of pre-proclamation cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its proceedings in
that case, including its questioned orders, are void; and that the eligibility of petitioner Imelda Romualdez-Marcos for the
office of Representative of the First District of Leyte may only be inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on Elections in SPA No. 95-009,
including its questioned orders doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner
Imelda Romualdez-Marcos ineligible and ordering her proclamation as Representative of the First District of Leyte
suspended. To the extent that Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the disqualification
of candidates on the ground of ineligibility for the office, it should considered void.
The provincial board of canvassers should now proceed with the proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with the provision itself.
The controversy should not be blurred by what, to me, are academic disquisitions. In this particular controversy, the
Constitutional provision on point states that — "no person shall be a member of the House of Representatives unless he
is a natural-born citizen of the Philippines, and on the day of the election, is at least twenty-five (25) years of age, able to
read and write, and except the party list representatives, a registered voter in the district in which he shall be elected, and
a resident thereof for a period of not less than one year immediately preceding the day of the election." (Article VI, section
6)
It has been argued that for purposes of our election laws, the term residence has been understood as synonymous
with domicile. This argument has been validated by no less than the Court in numerous cases1 where significantly
the factual circumstances clearly and convincingly proved that a person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with his personal presence in the place, coupled with conduct indicative of such
intention.
With this basic thesis in mind, it would not be difficult to conceive of different modalities within which the phrase "a
resident thereof (meaning, the legislative district) for a period of not less than one year" would fit.
The first instance is where a person's residence and domicile coincide in which case a person only has to prove that he has
been domiciled in a permanent location for not less than a year before the election.
A second situation is where a person maintains a residence apart from his domicile in which case he would have the luxury
of district shopping, provided of course, he satisfies the one-year residence period in the district as the minimum period
for eligibility to the position of congressional representative for the district.
In either case, one would not be constitutionally disqualified for abandoning his residence in order to return to his domicile
of origin, or better still, domicile of choice; neither would one be disqualified for abandoning altogether his domicile in
favor of his residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a person maintains several residences in different districts.
Since his domicile of origin continues as an option as long as there is no effective abandonment (animus non revertendi),
he can practically choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a period of not less than
one year immediately preceding the day of the election", he must be a resident in the district where he desires to be
elected.
To my mind, the one year residence period is crucial regardless of whether or not the term "residence" is to be
synonymous with "domicile." In other words, the candidate's intent and actual presence in one district must
in allsituations satisfy the length of time prescribed by the fundamental law. And this, because of a definite Constitutional
purpose. He must be familiar with the environment and problems of a district he intends to represent in Congress and the
one-year residence in said district would be the minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now assailed decision of the
Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en banc) —
In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban
City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1948 when she graduated from high school. She
pursued her college studies in St. Paul's College, now Divine Word University of Tacloban, where she earned her degree
in Education. Thereafter, she taught in the Leyte Chinese High School, still in Tacloban City. In 1952 she went to Manila to
work with her cousin, the late Speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she
married ex-president Ferdinand Marcos when he was still a congressman of Ilocos Norte. She lived with him in Batac,
Ilocos Norte and registered there as a voter. When her husband was elected Senator of the Republic in 1959, she and her
husband lived together in San Juan, Rizal where she registered as a voter. In 1965 when her husband was elected President
of the Republic of the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of the Batasang Pambansa, Minister of Human
Settlements and Governor of Metro Manila. She claimed that in February 1986, she and her family were abducted and
kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992 respondent ran for election as
President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and
registered voter of San Juan, Metro Manila. On August 24, 1994, respondent filed a letter with the election officer of San
Juan, Metro Manila, requesting for cancellation of her registration in the Permanent List of Voters in Precinct No. 157 of
San Juan, Metro Manila, in order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B,
Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of Voter's Previous Registration
(Annex 2-C, Answer) stating that she is a duly registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she intends
to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte. She filed with the Board
of Election Inspectors CE Form No. 1, Voter Registration Record No. 94-3349772, wherein she alleged that she has resided
in the municipality of Tolosa for a period of 6 months (Annex A, Petition).
On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte, a Certificate of Candidacy
for the position of Representative of the First District of Leyte wherein she also alleged that she has been a resident in the
constituency where she seeks to be elected for a period of 7 months. The pertinent entries therein are as follows:
7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker
8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE ELECTED IMMEDIATELY PRECEDING ELECTION: ________
Years SevenMonths
10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the Republic of the Philippines and
will maintain true faith and allegiance thereto; That I will obey the laws, legal orders and decrees promulgated by the duly-
constituted authorities; That the obligation imposed by my oath is assumed voluntarily, without mental reservation or
purpose of evasion; and That the facts stated herein are true to the best of my knowledge.
(Sgd.) Imelda Romualdez-Marcos
2
(Signature of Candidate)
Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive component or seed of her
disqualification. It is contained in her answer under oath of "seven months" to the query of "residence in the constituency
wherein I seek to be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in holding that petitioner is
disqualified from the position of representative for the 1st congressional district of Leyte in the elections of 8 May 1995,
for failure to meet the "not less than one-year residence in the constituency (1st district, Leyte) immediately preceding
the day of election (8 May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the next important issue
to resolve is whether or not the Comelec can order the Board of Canvassers to determine and proclaim the winner out of
the remaining qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R. 86564, August 1, 1989,
176 SCRA 1 which gave the rationale as laid down in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by those who have received the highest number of votes
cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be
declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes
cast in the election. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible
for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number
of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts
a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was
alive, qualified, or eligible, they should not be treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other purposes) (84 O.G.
905, 22 February 1988) it is provided that:
. . . — 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.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of the provision quoted
above. As the law now stands, the legislative policy does not limit its concern with the effect of a final judgement of
disqualification only before the election, but even during or after the election. The law is clear that in all situations, the
votes cast for a disqualified candidate SHALL NOT BE COUNTED. The law has also validated the jurisdiction of the Court or
Commission on Election to continue hearing the petition for disqualification in case a candidate is voted for and receives
the highest number of votes, if for any reason, he is not declared by final judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation (when evidence of his guilt is
strong) is also explicit under the law. What happens then when after the elections are over, one is declared disqualified?
Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the highest number of
votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning
candidate is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes
as a result of the votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-
examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications
prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the
ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of Leyte to proclaim the
candidate receiving the highest number of votes, from among the qualified candidates, as the duly elected representative
of the 1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the same conclusion
drawn therefrom Hence, this dissent which assuredly is not formulated "on the basis of the personality of a petitioner in
a case."
I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to this case, and which
I have simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban City, she being a legitimate
daughter of parents who appear to have taken up permanent residence therein. She also went to school there and, for a
time, taught in one of the schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos Norte, by operation of law
she acquired a new domicile in that place in 1954.
3. In the successive years and during the events that happened thereafter, her husband having been elected as a Senator
and then as President, she lived with him and their family in San Juan, Rizal and then in Malacanang Palace in San Miguel,
Manila.
4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then in San Juan, Rizal, and also in
San Miguel, Manila, all these merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those lofty positions successively, ever abandoned his
domicile of origin in Batac, Ilocos Norte where he maintained his residence and invariably voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos family in Honolulu, Hawaii,
U.S.A., she eventually returned to the Philippines in 1991 and resided in different places which she claimed to have been
merely temporary residences.
7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of candidacy she indicated that
she was then a registered voter and resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her registration in the Permanent List of Voters in Precinct
No. 157 of San Juan, Metro Manila in order that she may "be re-registered or transferred to Brgy. Olot, Tolosa, Leyte." On
August 31, 1994, she followed this up with her Sworn Application for Cancellation of Voter's Previous Registration wherein
she stated that she was a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she
intended to register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte, for which purpose she
filed with the therein Board of Election Inspectors a voter's registration record form alleging that she had resided in that
municipality for six months.
10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of Representative of the First District of
Leyte wherein she alleged that she had been a resident for "Seven Months" of the constituency where she sought to be
elected.
11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein her answer in the original
certificate of candidacy to item "8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:" was changed or replaced with a new entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with the residency
requirement of one year as mandated by no less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation on the difference between residence and
domicile. We have had enough of that and I understand that for purposes of political law and, for that matter of
international law, residence is understood to be synonymous with domicile. That is so understood in our jurisprudence
and in American Law, in contradistinction to the concept of residence for purposes of civil, commercial and procedural
laws whenever an issue thereon is relevant or controlling.
Consequently, since in the present case the question of petitioner's residence is integrated in and inseparable from her
domicile, I am addressing the issue from the standpoint of the concept of the latter term, specifically its permutations into
the domicile of origin, domicile of choice and domicile by operation of law, as understood in American law from which for
this case we have taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or what is termed the "domicile of origin,"
constitutes the domicile of an infant until abandoned, or until the acquisition of a new domicile in a different place.1 In
the instant case, we may grant that petitioner's domicile of origin, 2 at least as of 1938, was what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth, domicile by choice, and
domicile by operation of law. The first is the common case of the place of birth or domicilium originis, the second is that
which is voluntarily acquired by a party or domicilium propio motu; the last which is consequential, as that of a wife arising
from marriage,3 is sometimes called domicilium necesarium. There is no debate that the domicile of origin can be lost or
replaced by a domicile of choice or a domicile by operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or
American but of our own enactment, 4 she acquired her husband's domicile of origin in Batac, Ilocos Norte and
correspondingly lost her own domicile of origin in Tacloban City.
Her subsequent changes of residence — to San Juan, Rizal, then to San Miguel, Manila, thereafter to Honolulu, Hawaii,
and back to now San Juan, Metro Manila — do not appear to have resulted in her thereby acquiring new domiciles of
choice. In fact, it appears that her having resided in those places was by reason of the fortunes or misfortunes of her
husband and his peregrinations in the assumption of new official positions or the loss of them. Her residence in Honolulu
and, of course, those after her return to the Philippines were, as she claimed, against her will or only for transient purposes
which could not have invested them with the status of domiciles of choice.5
After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite residency in Tacloban
City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to acquire any other domicile of choice which
could have resulted in the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note the majority's
own submission 6 that, to successfully effect a change of domicile, one must demonstrate (a) an actual removal or an
actual change of domicile, (b) a bona fide intention of abandoning the former place of residence and establishing a new
one, and (c) acts which correspond with the purpose.
We consequently have to also note that these requirements for the acquisition of a domicile of choice apply whether what
is sought to be changed or substituted is a domicile of origin (domicilium originis) or a domicile by operation of law
(domicilium necesarium). Since petitioner had lost her domicilium originis which had been replaced by her domicilium
necesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which, if at all, can be the object of legal change
under the contingencies of the case at bar.
To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner Regalado E. Maambong
in SPA 95-009 of the Commission on Elections,7 and advances this novel proposition.
It may be said that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President
Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law (domicilium necesarium), her legal domicile at the time of her
marriage became Batac, Ilocos Norte although there were no indications of an intention on her part to abandon her
domicile of origin. Because of her husband's subsequent death and through the operation of the provisions of the New
Family Code already in force at the time, however, her legal domicile automatically reverted to her domicile of origin. . . .
(Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium necesarium in Batac, Ilocos
Norte, the majority insists on making a qualification that she did not intend to abandon her domicile of origin. I find this
bewildering since, in this situation, it is the law that declares where petitioner's domicile is at any given time, and not her
self-serving or putative intent to hold on to her former domicile. Otherwise, contrary to their own admission that one
cannot have more than one domicile at a time,8 the majority would be suggesting that petitioner retained Tacloban City
as (for lack of a term in law since it does not exist therein) the equivalent of what is fancied as a reserved, dormant,
potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance with law. However, we
are here being titillated with the possibility of an automatic reversion to or reacquisition of a domicile of origin after the
termination of the cause for its loss by operation of law. The majority agrees that since petitioner lost her domicile of
origin by her marriage, the termination of the marriage also terminates that effect thereof. I am impressed by the
ingeniousness of this theory which proves that, indeed, necessity is the mother of inventions. Regretfully, I find some
difficulty in accepting either the logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily abandons the former in
favor of the latter. If, thereafter, he abandons that chosen domicile, he does not per se recover his original domicile unless,
by subsequent acts legally indicative thereof, he evinces his intent and desire to establish the same as his new domicile,
which is precisely what petitioner belatedly and, evidently just for purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile of origin, not only
because there is no legal authority therefor but because it would be absurd Pursued to its logical consequence, that theory
of ipso jure reversion would rule out the fact that said party could already very well have obtained another domicile, either
of choice or by operation of law, other than his domicile of origin. Significantly and obviously for this reason, the Family
Code, which the majority inexplicably invokes, advisedly does not regulate this contingency since it would impinge on
one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we assume that she
entered into the marital state against her will) but, on top of that, such abandonment was further affirmed through her
acquisition of a new domicile by operation of law. In fact, this is even a case of both voluntary and legal abandonment of
a domicile of origin. With much more reason, therefore, should we reject the proposition that with the termination of her
marriage in 1989, petitioner had supposedly per se and ipso facto reacquired her domicile of origin which she lost in 1954.
Otherwise, this would be tantamount to saying that during the period of marital coverture, she was simultaneously in
possession and enjoyment of a domicile of origin which was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husband's death the wife has the right to elect her
own domicile,9 she nevertheless retains the last domicile of her deceased husband until she makes an actual change. 10 In
the absence of affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal residence follows
that of her husband and will continue after his death. 11
I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of the Family
Code. All that is of any relevance therein is that under this new code, the right and power to fix the family domicile is now
shared by the spouses. I cannot perceive how that joint right, which in the first place was never exercised by the spouses,
could affect the domicile fixed by the law for petitioner in 1954 and, for her husband, long prior thereto. It is true that a
wife now has the coordinate power to determine the conjugal or family domicile, but that has no bearing on this case.
With the death of her husband, and each of her children having gotten married and established their own respective
domiciles, the exercise of that joint power was and is no longer called for or material in the present factual setting of this
controversy. Instead, what is of concern in petitioner's case was the matter of her having acquired or not her own domicile
of choice.
I agree with the majority's discourse on the virtues of the growing and expanded participation of women in the affairs of
the nation, with equal rights and recognition by Constitution and statutory conferment. However, I have searched in vain
for a specific law or judicial pronouncement which either expressly or by necessary implication supports the majority's
desired theory of automatic reacquisition of or reversion to the domicilium originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern this issue, there is a world of difference; and, unquestionably,
this should be resolved by legislative articulation but not by the eloquence of the well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having automatically reacquired
any domicile therein, she cannot legally claim that her residency in the political constituency of which it is a part continued
since her birth up to the present. Respondent commission was, therefore, correct in rejecting her pretension to that effect
in her amended/corrected certificate of candidacy, and in holding her to her admission in the original certificate that she
had actually resided in that constituency for only seven months prior to the election. These considerations render it
unnecessary to further pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan, more particularly on
the issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the COMELEC may be brought
to this Court only by the special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA
251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess of jurisdiction or with
grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since the COMELEC has, undoubtedly, jurisdiction over the
private respondent's petition, the only issue left is whether it acted with grave abuse of discretion in disqualifying the
petitioner.
My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second Division and
the En Banc resolution of 7 May 1995 discloses total absence of abuse of discretion, much less grave abuse thereof. The
resolution of the Second Division dispassionately and objectively discussed in minute details the facts which established
beyond cavil that herein petitioner was disqualified as a candidate on the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied, miscomprehended, or misunderstood facts or circumstances of
substance pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the petitioner has
abandoned Tolosa as her domicile of origin, which is allegedly within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or by documentary
evidence, overwhelming proof of the loss or abandonment of her domicile of origin, which is Tacloban City and not Tolosa,
Leyte. Assuming that she decided to live again in her domicile of origin, that became her second domicile of choice, where
her stay, unfortunately, was for only seven months before the day of the election. She was then disqualified to be a
candidate for the position of Representative of the First Congressional District of Leyte. A holding to the contrary would
be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or Tolosa, Leyte. Nevertheless,
she lost it by operation of law sometime in May 1954 upon her marriage to the then Congressman (later, President)
Ferdinand E. Marcos. A domicile by operation of law is that domicile which the law attributes to a person, independently
of his own intention or actual residence, as results from legal domestic relations as that of the wife arising from marriage
(28 C.J.S. Domicile § 7, 11). Under the governing law then, Article 110 of the Civil Code, her new domicile or her domicile
of choice was the domicile of her husband, which was Batac, Ilocos Norte. Said Article reads as follows:
Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband
if he should live abroad unless in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the husband has a predominant right because he is
empowered by law to fix the family residence. This right even predominates over some rights recognized by law in the
wife. For instance, under article 117 the wife may engage in business or practice a profession or occupation. But because
of the power of the husband to fix the family domicilehe may fix it at such a place as would make it impossible for the wife
to continue in business or in her profession. For justifiable reasons, however, the wife may be exempted from living in the
residence chosen by the husband. The husband cannot validly allege desertion by the wife who refuses to follow him to a
new place of residence, when it appears that they have lived for years in a suitable home belonging to the wife, and that
his choice of a different home is not made in good faith. (Commentaries and Jurisprudence on the Civil Code of the
Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her own domicile and, by operation of law, acquires that of her
husband, no matter where the wife actually lives or what she believes or intends. Her domicile is fixed in the sense that it
is declared to be the same as his, and subject to certain limitations, he can change her domicile by changing his own (25
Am Jur 2d Domicile § 48, 37).
It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family domicile is no longer
the sole prerogative of the husband, but is now a joint decision of the spouses, and in case of disagreement the court shall
decide. The said article uses the term "family domicile," and not family residence, as "the spouses may have multiple
residences, and the wife may elect to remain in one of such residences, which may destroy the duty of the spouses to live
together and its corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988],
102).
The theory of automatic restoration of a woman's domicile of origin upon the death of her husband, which the majority
opinion adopts to overcome the legal effect of the petitioner's marriage on her domicile, is unsupported by law and by
jurisprudence. The settled doctrine is that after the husband's death the wife has a right to elect her own domicile, but
she retains the last domicile of her husband until she makes an actual change (28 C.J.S. Domicile § 12, 27). Or, on the death
of the husband, the power of the wife to acquire her own domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile § 62, 45). Note that what is revived
is not her domicile of origin but her power to acquire her own domicile.
Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the time of his death —
which was Batac, Ilocos Norte, since their residences in San Juan, Metro Manila, and San Miguel, Manila, were their
residences for convenience to enable her husband to effectively perform his official duties. Their residence in San Juan
was a conjugal home, and it was there to which she returned in 1991 when she was already a widow. In her sworn
certificate of candidacy for the Office of the President in the synchronized elections of May 1992, she indicated therein
that she was a resident of San Juan, Metro Manila. She also voted in the said elections in that place.
On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a widow to acquire her own
domicile in Tolosa, Leyte, through her sworn statement requesting the Election Officer of San Juan, Metro Manila, to
cancel her registration in the permanent list of voters in Precinct 157 thereat and praying that she be "re-registered or
transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and permanent residence" (photocopy of Exhibit "B,"
attached as Annex "2" of private respondent Montejo's Comment). Notably, she contradicted this sworn statement
regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992 (photocopy of Exhibit "C," attached
as Annex "3," Id.), her Voter Registration Record sworn to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex
"5," Id.), and her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.),
she solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In the affidavit attached
to her Answer to the petition for disqualification (Annex "I" of Petition), she declared under oath that her "domicile or
residence is Tacloban City." If she did intend to return to such domicile or residence of origin why did she inform the
Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's Registration Record
and in her certificate of candidacy that her residence is Olot, Tolosa, Leyte? While this uncertainty is not important insofar
as residence in the congressional district is concerned, it nevertheless proves that forty-one years had already lapsed since
she had lost or abandoned her domicile of origin by virtue of marriage and that such length of time diminished her power
of recollection or blurred her memory.
I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and the subsequent
cases which established the principle that absence from original residence or domicile of origin to pursue studies, practice
one's profession, or engage in business in other states does not constitute loss of such residence or domicile. So is the
reliance on Section 117 of the Omnibus Election Code which provides that transfer of residence to any other place by
reason of one's "occupation; profession; employment in private and public service; educational activities; work in military
or naval reservations; service in the army, navy or air force, the constabulary or national police force; or confinement or
detention in government institutions in accordance with law" is not deemed as loss of original residence. Those cases and
legal provision do not include marriage of a woman. The reason for the exclusion is, of course, Article 110 of the Civil Code.
If it were the intention of this Court or of the legislature to consider the marriage of a woman as a circumstance which
would not operate as an abandonment of domicile (of origin or of choice), then such cases and legal provision should have
expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit (Annex "A" of her
Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or residence of origin is Tacloban City," and
that she "never intended to abandon this domicile or residence of origin to which [she] always intended to return
whenever absent." Such a claim of intention cannot prevail over the effect of Article 110 of the Civil Code. Besides, the
facts and circumstances or the vicissitudes of the petitioner's life after her marriage in 1954 conclusively establish that she
had indeed abandoned her domicile of origin and had acquired a new one animo et facto (KOSSUTH KENT KENNAN, A
Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioner's claim that she "merely committed an honest mistake"
in writing down the word "seven" in the space provided for the residency qualification requirement in the certificate of
candidacy. Such a claim is self-serving and, in the light of the foregoing disquisitions, would be all sound and fury signifying
nothing. To me, she did not commit any mistake, honest or otherwise; what she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the affirmative of an issue has
the burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of
Appeals, 221 SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the petitioner could not deny
the legal consequence thereof on the change of her domicile to that of her husband. The majority opinion rules or at least
concludes that "[b]y operation of law (domicilium necesarium), her legal domicile at the time of her marriage automatically
became Batac, Ilocos Norte." That conclusion is consistent with Article 110 of the Civil Code. Since she is presumed to
retain her deceased husband's domicile until she exercises her revived power to acquire her own domicile, the burden is
upon her to prove that she has exercised her right to acquire her own domicile. She miserably failed to discharge that
burden.
I vote to deny the petition.

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES
QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment
and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of Justice;
FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V.
RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of
Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as
Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as
Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development
Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

DECISION
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both
seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25,
1987. The pertinent provisions of the assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold
not more than two positions in the government and government corporations and receive the corresponding
compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils
or bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive
Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position
in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions other
than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least
one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or
assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and
assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to
the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, 2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along
with the other public officials enumerated in the list attached to the petitions as Annex “C” in G.R. No. 83815 3 and as
Annex “B” in G.R. No. 83896 4 from holding any other office or employment during their tenure. In addition to seeking a
declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further
seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary
restraining order directing public respondents therein to cease and desist from holding, in addition to their primary
positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries,
allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and compelling
public respondents to return, reimburse or refund any and all amounts or benefits that they may have received from such
positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted “absolute and
self-executing” provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section 13,
Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring
that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including
membership in the boards of government corporations: (a) when directly provided for in the Constitution as in the case
of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1,
Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions; and that on the
basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July
27, 1987: promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they
allegedly “lumped together” Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article
I-XB. This “strained linkage” between the two provisions, each addressed to a distinct and separate group of public officers
–– one, the President and her official family, and the other, public servants in general –– allegedly “abolished the clearly
separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the
President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of
government expected to lead by example.” 7 Article IX-B, Section 7, par. (2) 8 provides:
Sec. 7. . . . . .
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 Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and
clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10 being the first official
construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB
of the Constitution, involving the same subject of appointments or designations of an appointive executive official to
positions other than his primary position, is “reasonably valid and constitutionally firm,” and that Executive Order No. 284,
promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ
Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284
as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed by the
primary functions of the public official, but only to the holding of multiple positions which are not related to or necessarily
included in the position of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission that
it adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by
virtue of the phrase “unless otherwise provided in this Constitution,” the only exceptions against holding any other office
or employment in Government are those provided in the Constitution, namely: (1) The Vice-President may be appointed
as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-
officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service
Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and
cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the
Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their
deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The
disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners
insist that because of the phrase “unless otherwise provided in this Constitution” used in Section 13 of Article VII, the
exception must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to become a
Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated
an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand,
maintain that the phrase “unless otherwise provided in the Constitution” in Section 13, Article VII makes reference to
Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials
in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: “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
corporation or their subsidiaries.”
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it
has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its
adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of
the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to
ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and
calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or
boards of various government agencies and instrumentalities, including government-owned and controlled corporations,
became prevalent during the time legislative powers in this country were exercised by former President Ferdinand E.
Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and
government-owned and controlled corporations created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were designated to head or sit as members of the board
with the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of these
instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials
who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in government
was strongly denounced on the floor of the Batasang Pambansa. 12 This condemnation came in reaction to the published
report of the Commission on Audit, entitled “1983 Summary Annual Audit Report on: Government-Owned and Controlled
Corporations, Self-Governing Boards and Commissions” which carried as its Figure No. 4 a “Roaster of Membership in
Governing Boards of Government-Owned and Controlled Corporations as of December 31, 1983.”
Particularly odious and revolting to the people’s sense of propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22);
Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of
thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo
Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional
Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its
proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that
flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani
A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during the
campaign for its ratification was the assurance given by its proponents that the scandalous practice of Cabinet members
holding multiple positions in the government and collecting unconscionably excessive compensation therefrom would be
discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against
the holding of multiple offices or employment in the government subsuming both elective and appointive public officials,
the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting
the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent
of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as
holding other offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution
on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section
13, Article VI, “(N)o Senator or Member of the House of Representatives may hold any other office or employment in the
Government . . .”. Under Section 5(4), Article XVI, “(N)o member of the armed forces in the active service shall, at any
time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled
corporations or any of their subsidiaries.” Even Section 7 (2), Article IX-B, relied upon by respondents provides “(U)nless
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.”
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition
pertains to an office or employment in the government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that “(T)he President, Vice-President,
the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold
any other office or employment during their tenure.” In the latter provision, the disqualification is absolute, not being
qualified by the phrase “in the Government.” The prohibition imposed on the President and his official family is therefore
all-embracing and covers both public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides: “They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in
any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries.” These sweeping, all-embracing prohibitions
imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or
employees such as the Members of Congress, members of the civil service in general and members of the armed forces,
are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to
impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also
succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the
General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, “We actually
have to be stricter with the President and the members of the Cabinet because they exercise more powers and, therefore,
more cheeks and restraints on them are called for because there is more possibility of abuse in their case.” 14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions, members of
the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other
words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public officials
and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase “unless otherwise provided in this Constitution” in Section 13, Article VII cannot
possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said
qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and
purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of
the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during
their tenure. Respondents’ interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par.
(2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-
ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and the generality of
civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office
or position in the government during their tenure.
Moreover, respondents’ reading of the provisions in question would render certain parts of the Constitution inoperative.
This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other
office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1)
of Article I-XB is absolutely ineligible “for appointment or designation in any capacity to any public office or position during
his tenure.” Surely, to say that the phrase “unless otherwise provided in this Constitution” found in Section 13, Article VII
has reference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of the Constitution
authorizing the Vice-President to become a member of the Cabinet, 15 and to act as President without relinquishing the
Vice-Presidency where the President shall not have been chosen or fails to qualify. 16 Such absurd consequence can be
avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing
the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must
Section 7, par. (2) of Article I-XB be construed vis-à-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from
all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into
view and to be so interpreted as to effectuate the great purposes of the instrument. 17 Sections bearing on a particular
subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution 18 and one
section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render
every word operative, rather than one which may make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President,
Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this prohibition must be read with equal severity.
On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive
and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the
language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal
negation. 21 The phrase “unless otherwise provided in this Constitution” must be given a literal interpretation to refer only
to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the
Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2)
and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section
8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution
must not, however, be construed as applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and as required 22 by the primary functions of said
officials’ office. The reason is that these posts do no comprise “any other office” within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and functions on said officials. 23 To
characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines
cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can
the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and
Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members.
The respective undersecretaries and assistant secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council
(NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for
policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective undersecretaries
and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing
policy direction in the areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a
continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable;
and unreasonable or absurd consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the
concerned official’s office. The term ex-officio means “from office; by virtue of office.” It refers to an “authority derived
from official character merely, not expressly conferred upon the individual character, but rather annexed to the official
position.” Ex-officio likewise denotes an “act done in an official character, or as a consequence of office, and without any
other appointment or authority than that conferred by the office.” 27 An ex-officio member of a board is one who is a
member by virtue of his title to a certain office, and without further warrant or appointment. 28 To illustrate, by express
provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the
Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and
Inspection Board, 31 thus: “An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman
and members of the Board to qualify they need only be designated by the respective department heads. With the
exception of the representative from the private sector, they sit ex-officio. In order to be designated they must already be
holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment
in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The same is true with
respect to the representatives from the other offices. No new appointments are necessary. This is as it should be, because
the representatives so designated merely perform duties in the Board in addition to those already performed under their
original appointments.” 32
The term “primary” used to describe “functions” refers to the order of importance and thus means chief or principal
function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be
closely related to, but must be required by the official’s primary functions. Examples of designations to positions by virtue
of one’s primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the
Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil
Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise
alien to the primary function of a cabinet official, such additional functions would fall under the purview of “any other
office” prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member of the Board
of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which confer on the cabinet
official management functions and/or monetary compensation, such as but not limited to chairmanships or directorships
in government-owned or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants
which are not inconsistent with those already prescribed by their offices or appointments by virtue of their special
knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is
a practice justified by the demands of efficiency, policy direction, continuity and coordination among the different offices
in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national
interest and general welfare and delivering basic services to the people. It is consistent with the power vested on the
President and his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and offices
and to ensure that the laws are faithfully executed. 35 Without these additional duties and functions being assigned to the
President and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in
an ex-officio capacity as provided by law and as required by their primary functions, they would be supervision, thereby
deprived of the means for control and resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the
primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without
receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official
concerned has no right to receive additional compensation for his services in the said position. The reason is that these
services are already paid for and covered by the compensation attached to his principal office. It should be obvious that
if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually
and in legal contemplation performing the primary function of his principal office in defining policy in monetary and
banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled
to collect any extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some
other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the
Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to
Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception “unless required by
the functions of his position,” 36 express reference to certain high-ranking appointive public officials like members of the
Cabinet were made. 37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there
are instances when although not required by current law, membership of certain high-ranking executive officials in other
offices and corporations is necessary by reason of said officials’ primary functions. The example given by Commissioner
Monsod was the Minister of Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of the official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is
by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary
session of September 27, 1986. Under consideration then was Section 3 of Committee Resolution No. 531 which was the
proposed article on General Provisions. 39 At that time, the article on the Civil Service Commission had been approved on
third reading on July 22, 1986, 40 while the article on the Executive Department, containing the more specific prohibition
in Section 13, had also been earlier approved on third reading on August 26, 1986. 41It was only after the draft Constitution
had undergone reformatting and “styling” by the Committee on Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded “Unless otherwise allowed by law or by the primary functions of his
position. . . .”
What was clearly being discussed then were general principles which would serve as constitutional guidelines in the
absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion
was the adoption of the qualified and delimited phrase “primary functions” as the basis of an exception to the general
rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific prohibition
in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in
then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service
Commission.
That this exception would in the final analysis apply also to the President and his official family is by reason of the legal
principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-
B At any rate, we have made it clear that only the additional functions and duties “required,” as opposed to “allowed,” by
the primary functions may be considered as not constituting “any other office.”
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order
to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides
fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention “are of value as showing the views of the individual members, and as indicating the reasons for
their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe
the constitution from what appears upon its face.” 43 The proper interpretation therefore depends more on how it was
understood by the people adopting it than in the framers’ understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President,
Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or
employment in the government, except in those cases specified in the Constitution itself and as above clarified with
respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the
primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate
and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions
which cannot override the constitution’s manifest intent and the people’ understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987
Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position
to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually
allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article
VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict application of the
prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue
of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without
additional compensation as provided by law and as required by the primary functions of his office do not fall under the
definition of “any other office” within the contemplation of the constitutional prohibition. With respect to other offices
or employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real.
Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized
knowledge, skills and expertise. If maximum benefits are to be derived from a department head’s ability and expertise, he
should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices 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. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development,
far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in
more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of
Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of
National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague
to immediately relinquish their other offices or employment, as herein defined, in the government, including government-
owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the petitions have
become moot and academic as they are no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to
emoluments for actual services rendered. 46 It has been held that “in cases where there is no de jure, officer, a de
facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust
that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any one for
such services. 47 Any per diem, allowances or other emoluments received by the respondents by virtue of actual services
rendered in the questioned positions may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado and
Davide, Jr., JJ., concur.
Sarmiento and Griño-Aquino, JJ., took no part.

[G.R. No. 120099. July 24, 1996]

EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.
DECISION
FRANCISCO, J.:
Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez, Jr. (Rodriguez and Marquez, for brevity)
were protagonists for the gubernatorial post of Quezon Province in the May 1992 elections. Rodriguez won and was
proclaimed duly-elected governor.
Marquez challenged Rodriguez victory via petition for quo warranto before the COMELEC (EPC No. 92-28). Marquez
revealed that Rodriguez left the United States where a charge, filed on November 12, 1985, is pending against the latter
before the Los Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal
property. Rodriguez is therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under
Section 40(e) of the Local Government Code (R.A. 7160), so argued Marquez.
The COMELEC dismissed Marquez quo warranto petition (EPC No. 92-28) in a resolution of February 2, 1993, and likewise
denied a reconsideration thereof.
Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for certiorari, docketed as G.R.
No. 112889. The crux of said petition is whether Rodriguez is a "fugitive from justice" as contemplated by Section 40(e) of
the Local Government Code based on the alleged pendency of a criminal charge against him (as previously mentioned).
In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC" promulgated on April 18, 1995, now
appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as the MARQUEZ Decision, declared that:
x x x, fugitive from justice includes not only those who flee after conviction to avoid punishment but likewise those who,
after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence (x x x), and it may be
so conceded as expressing the general and ordinary connotation of the term."[1]
Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed upon by the
Court. That task was to devolve on the COMELEC upon remand of the case to it, with the directive to proceed therewith
with dispatch conformably with the MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He also filed an
"Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" to which was attached a
certification from the Commission on Immigration showing that Rodriguez left the US on June 25, 1985 roughly five (5)
months prior to the institution of the criminal complaint filed against him before the Los Angeles court. The Court however
denied a reconsideration of the MARQUEZ Decision.
In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time,
Marquez challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the
same allegation that Rodriguez is a "fugitive from justice." This petition for disqualification (SPA No. 95-089) was filed by
Marquez on April 11, 1995 when Rodriguez' petition for certiorari (112889) from where the April 18, 1995 MARQUEZ
Decision sprung was still then pending before the Court.
On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated
Resolution for EPC No. 92-28 (quo warranto case) and SPA No. 95-089 (disqualification case). In justifying a joint resolution
of these two (2) cases, the COMELEC explained that:
1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases;
2. the parties, facts and issue involved are identical in both cases
3. the same evidence is to be utilized in both cases in determining the common issue of whether Rodriguez is a "fugitive
from justice"
4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a consolidated resolution
of the two (2) cases is not procedurally flawed.
Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind the MARQUEZ
Decision definition of "fugitive from justice", found Rodriguez to be one. Such finding was essentially based on Marquez'
documentary evidence consisting of
1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles Municipal Court against
Rodriguez, and
2. an authenticated copy of the felony complaint
which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the case on April 26,
1995 following the COMELEC's denial of Rodriguez' motion for postponement. With the walk-out, the COMELEC
considered Rodriguez as having waived his right to disprove the authenticity of Marquez' aforementioned documentary
evidence. The COMELEC thus made the following analysis:
"The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal complaint against
the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an
outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice. The
Commission cannot look with favor on respondent's defense that long before the felony complaint was allegedly filed,
respondent was already in the Philippines and he did not know of the filing of the same nor was he aware that he was
being proceeded against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be
deemed a fugitive from justice, because to be so, one must be aware of the filing of the criminal complaint, and his
disappearance in the place where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a
clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not even fortified with any
attached document to show when he left the United States and when he returned to this country, facts upon which the
conclusion of absence of knowledge about the criminal complaint may be derived. On the contrary, the fact of arrest of
respondent's wife on November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid for
respondent in that country can hardly rebut whatever presumption of knowledge there is against the respondent."[2]
And proceeding therefrom, the COMELEC, in the dispositive portion, declared:
"WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby ordered disqualified
or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to
immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon Province in the
May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside."
At any rate, Rodriguez again emerged as the victorious candidate in the May 8, 1995 election for the position of governor.
On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the COMELEC granted
on May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed Rodriguez on May 12, 1995.
The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995 Resolution suspending
Rodriguez' proclamation thus gave rise to the filing of the instant petition for certiorari (G.R. No. 120099) on May 16, 1995.
On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation Of Rodriguez To Proclaim Marquez And
To Cite The Provincial Board of Canvassers in Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089).
Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified Rodriguez' proclamation
and ordered certain members of the Quezon Province Provincial Board of Canvassers to explain why they should not be
cited in contempt for disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation. But with
respect to Marquez' motion for his proclamation, the COMELEC deferred action until after this Court has resolved the
instant petition (G.R. No. 120099).
Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23, 1995 Resolution,
apart from the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and Order to suspend Rodriguez'
proclamation, respectively).
As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No. 120099) on July 13, 1995.
Marquez, on August 3, 1995, filed an "Urgent Motion For Temporary Restraining Order Or Preliminary Injunction" which
sought to restrain and enjoin Rodriguez "from exercising the powers, functions and prerogatives of Governor of Quezon
x x x." Acting favorably thereon, the Court in a Resolution dated August 8, 1995 issued a temporary restraining
order.Rodriguez' "Urgent Motion To Lift Temporary Restraining Order And/Or For Reconsideration" was denied by the
Court in an August 15, 1995 Resolution. Another similar urgent motion was later on filed by Rodriguez which the Court
also denied.
In a Resolution dated October 24, 1995, the Court
"x x x RESOLVED to DIRECT the Chairman of the Commission on Elections ('COMELEC') to designate a Commissioner or a
ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo
Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent
Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within the legal
concept of a fugitive from justice. Private respondent Marquez may likewise, if he so desires, introduce additional and
admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may
be applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings completed and the
corresponding report submitted to this Court within thirty (30) days from notice hereof."
The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled "EVIDENCE OF THE
PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that
Rodriguez is NOT a "fugitive from justice" as defined in the main opinion of the MARQUEZ Decision, thus making a 180-
degree turnaround from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined
that intent to evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez'
case because evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal
charge was instituted in the Los Angeles Court (November 12, 1985).
But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on
whether it read and applied correctly the MARQUEZ Decisiondefinition of "fugitive from justice". So as not to miss
anything, we quote the COMELEC's observations in full:
x x x. The main opinion's definition of a 'fugitive from justice includes not only those who flee after conviction to avoid
punishment but also those who, after being charged, flee to avoid prosecution.' It proceeded to state that:
This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p. 399 by F.B. Moreno;
Black's Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137 SE 2d 102, 103; Hughes v. Pflanz, 138 Federal
Reporter 980; Tobin v. Casaus, 275 Pacific Reporter 2d p. 792), and it may be so conceded as expressing the general and
ordinary connotation of the term.
But in the majority of the cases cited, the definition of the term 'fugitive from justice' contemplates other instances not
explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition of the term by referring to a 'fugitive
from justice' as:
(A) person, who, having committed a crime, flees from jurisdiction of the court where crime was committed or departs
from his usual place of abode and conceals himself within the district. x x x
Then, citing King v. Noe, the definition continues and conceptualizes a 'fugitive from justice' as:
x x x a person who, having committed or been charged with a crime in one state, has left its jurisdiction and is found within
the territory of another when it is sought to subject him to the criminal process of the former state. (our emphasis)
In Hughes v. Pflanz, the term was defined as:
a person who, having committed within a state a crime, when sought for, to be subjected to criminal process, is found
within the territory of another state.
Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:
expression which refers to one having committed, or being accused, of a crime in one jurisdiction and is absent for any
reason from that jurisdiction.
Specifically, one who flees to avoid punishment x x x (Italics ours)
From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from justice are: (a) a person
committed a 'crime' or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the
court where said crime was committed or his usual place of abode.
Filing of charges prior to flight is not always an antecedent requirement to label one a 'fugitive from justice. Mere
commission of a 'crime' without charges having been filed for the same and flight subsequent thereto sufficiently meet
the definition. Attention is directed at the use of the word 'crime' which is not employed to connote guilt or conviction for
the commission thereof. Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for being
a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being that a person
'was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within
the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had
jumped bail or escaped. The disqualification then is based on his flight from justice.
Other rulings of the United States Supreme Court further amplify the view that intent and purpose for departure is
inconsequential to the inquiry. The texts, which are persuasive in our jurisdiction, are more unequivocal in their
pronouncements. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly (116 US 80) the United States Supreme Court held:
x x x it is not necessary that the party should have left the state or the judicial district where the crime is alleged to have
been committed, after an indictment found, or for the purpose of avoiding an anticipated prosecution, but that, having
committed a crime within a state or district, he has left and is found in another jurisdiction (Italics supplied)
Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakable language:
The simple fact that they (person who have committed crime within a state) are not within the state to answer its criminal
process when required renders them, in legal intendment, fugitives from justice.
THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT THERE ARE
PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER
A 'FUGITIVE FROM JUSTICE.'
From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from justice hinges on whether
or not Rodriguez' evidence shall be measured against the two instances mentioned in the main opinion, or is to be
expanded as to include other situations alluded to by the foreign jurisprudence cited by the Court. In fact, the spirited
legal fray between the parties in this case focused on each camp's attempt to construe the Court's definition so as to fit
or to exclude petitioner within the definition of a 'fugitive from justice'. Considering, therefore, the equally valid yet
different interpretations resulting from the Supreme Court decision in G.R. No. 112889, the Commission deems it most
conformable to said decision to evaluate the evidence in light of the varied constructions open to it and to respectfully
submit the final determination of the case to the Honorable Supreme Court as the final interpreter of the law."
The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice, the determination of
which, as we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decision and in the Court's October 24,
1995 Resolution), must conform to how such term has been defined by the Court in the MARQUEZ Decision. To reiterate,
a "fugitive from justice":
"x x x includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to
avoid prosecution."
The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular
jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by
the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction.
Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June
25, 1985, as per certifications issued by the Bureau of Immigrations dated April 27[3] and June 26 of 1995,[4] preceded the
filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the
arrest warrant by that same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known
about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest
warrant much less conviction to speak of yet at such time. What prosecution or punishment then was Rodriguez
deliberately running away from with his departure from the US? The very essence of being a "fugitive from justice" under
the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez.
With that, the Court gives due credit to the COMELEC in having made the. same analysis in its "x x x COMMISSION'S
EVALUATION". There are, in fact, other observations consistent with such analysis made by the poll body that are equally
formidable so as to merit their adoption as part of this decision, to wit:
"It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent to evade the law. This was
done by offering for admission a voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87 inclusive) on
the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the sole purpose
of establishing the fact that it was impossible for petitioner not to have known of said investigation due to its
magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive or
prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of
those who would be charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of a well-
publicized announcement to the perpetrators of the imminent filing of charges against them. And having been
forewarned, every effort to sabotage the investigation may be resorted to by its intended objects. But if private
respondent's attempt to show Rodriguez' intent to evade the law at the time he left the United States has any legal
consequence at all, it will be nothing more than proof that even private respondent accepts that intent to evade the law
is a material element in the definition of a fugitive.
"The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed
cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events
which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at hand in
the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently proves
that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political
campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the country, the
upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the more colorful
events in Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and precipitated changes in the
political climate. And being a figure in these developments, petitioner Rodriguez began serving his home province as OIC-
Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues
to be involved in politics in the same capacity as re-elected Governor in 1992 and the disputed re-election in
1995. Altogether, these landmark dates hem in for petitioner a period of relentless, intensive and extensive activity of
varied political campaigns first against the Marcos government, then for the governorship. And serving the people of
Quezon province as such, the position entails absolute dedication of one's time to the demands of the office.
"Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United
States, it becomes immaterial under such construction to determine the exact time when he was made aware
thereof. While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that
a person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in
view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good
faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed
against him while in the relative peace and service of his own country, the fact that he does not subject himself to the
jurisdiction of the former state does not qualify him outright as a fugitive from justice.
"The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of
another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's
case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already
left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of
an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that
he did and to return to the Philippines. No justifiable reason existed to curtail or fetter petitioner's exercise of his right to
leave the United State and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish
petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory
at the time he was sought to be placed under arrest and to answer for charges filed against him.
"Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his
circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary
burden and tedious process of defending himself before the country's courts?
"It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the
performance of duties and obligations that are supererogatory in nature. We do not dispute that an alleged 'fugitive from
justice' must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing of
charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a particular
state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his departure from the
United States may not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-
submission to the jurisdiction of the former country does not operate to label petitioner automatically a fugitive from
justice. As he was a public officer appointed and elected immediately after his return to the country, petitioner Rodriguez
had every reason to devote utmost priority to the service of his office. He could not have gone back to the United States
in the middle of his term nor could he have traveled intermittently thereto without jeopardizing the interest of the public
he serves. To require that of petitioner would be to put him in a paradoxical quandary where he is compelled to violate
the very functions of his office."
However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to urge the Court to
re-define "fugitive from justice." They espouse the broader concept of the term as culled from foreign authorities (mainly
of U.S. vintage) cited in the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from justice" by the mere fact that
he leaves the jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been
filed at the time of his flight.
Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-definition of "fugitive from
justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition. The
various definitions of that doctrine have been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit:
"'Law of the case' has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever
is once irrevocably established as the controlling legal rule of decision between the same parties in the same case
continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before the court." (21 C.J.S. 330)
"It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially
the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on the prior appeal
are the law of the case on all subsequent appeals and will not be considered or readjudicated therein." (5 C.J.S. 1267)
"In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded
the cause for further action below, it will refuse to examine question other than those arising subsequently to such
determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has
proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second
appeal.
"As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision is
right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing." (5 C.J.S. 1276-77).
"Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent
appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the
facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned
in the opinion." (5 C.J.S. 1286-87).
To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice")
are involved in the MARQUEZ Decision and the instant petition.The MARQUEZ Decision was an appeal from EPC No. 92-
28 (the Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28
although the COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of
Rodriguez). Therefore, what was irrevocably established as the controlling legal rule in the MARQUEZ Decision must
govern the instant petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion
in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and the COMELEC,
with their proposed expanded definition, seem to trivialize.
Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink
dried in the MARQUEZ Decision.
To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to
run for any elective local position under Section 40(e) of the Local Government Code, should be understood according to
the definition given in the MARQUEZ Decision, to wit:
"A 'fugitive from justice' includes not only those who flee after conviction to avoid punishment but likewise those
who, after being charged, flee to avoid prosecution." (Italics ours.)"
Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction
or at least, a charge has already been filed, at the time of flight.Not being a "fugitive from justice" under this definition,
Rodriguez cannot be denied the Quezon Province gubernatorial post.
WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed Resolutions of the
COMELEC dated May 7, 1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation)
and June 23, 1995 (Resolution nullifying Rodriguez' proclamation and ordering the Quezon Province Provincial Board of
Canvassers to explain why they should not be cited in contempt) are SET ASIDE.
SO ORDERED.

[G.R. No. 130872. March 25, 1999]

FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners, vs. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the Sandiganbayan of thirteen (13)
counts of estafa through falsification of public documents.[1] They now seek a review of their conviction as they insist on
their innocence.
Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son, his co-petitioner Lenlie
Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay Bagong Silang, Municipality of Santa
Cruz, and concurrently a member of its Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays.
In the 1985 election for the Kabataang Barangay Jowil Red[2] won as KB Chairman of Barangay Matalaba, Santa
Cruz. Parenthetically, Lenlie Lecaroz did not run as candidate in this electoral exercise as he was no longer qualified for
the position after having already passed the age limit fixed by law.
Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as member of the Sangguniang
Bayan of Santa Cruz representing the KBs of the municipality. Imee Marcos-Manotoc, then the National Chairperson of
the organization, sent a telegram to Red confirming his appointment and advising him further that copies of his
appointment papers would be sent to him in due time through the KB Regional Office.[3] Red received the telegram on 2
January 1986 and showed it immediately to Mayor Francisco M. Lecaroz.
On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral representative of the KBs to
the SB, Red attended the meeting of the Sanggunian upon the invitation of one of its members, Kagawad Rogato
Lumawig. In that meeting, Mayor Francisco M. Lecaroz informed Red that he could not yet sit as member of the municipal
council until his appointment had been cleared by the Governor of Marinduque. Nonetheless, the telegram was included
in the agenda as one of the subjects discussed in the meeting.
Red finally received his appointment papers sometime in January 1986.[4] But it was only on 23 April 1986, when then
President Corazon C. Aquino was already in power,[5] that he forwarded these documents to Mayor Lecaroz. This
notwithstanding, Red was still not allowed by the mayor to sit as sectoral representative in the Sanggunian.
Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie Lecaroz of twenty-six (26)
sets of payrolls for the twenty-six (26) quincenas covering the period 16 January 1986 to 30 January 1987. Lenlie Lecaroz
signed the payroll for 1-15 January 1986 and then authorized someone else to sign all the other payrolls for the
succeeding quincenas and claim the corresponding salaries in his behalf.
On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment papers from
President Marcos, Red was finally able to secure from the Aquino Administration a confirmation of his appointment as KB
Sectoral Representative to the Sanggunian Bayan of Santa Cruz.
Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against Mayor Francisco Lecaroz
and Lenlie Lecaroz arising from the refusal of the two officials to let him assume the position of KB sectoral
representative. After preliminary investigation, the Ombudsman filed with the Sandiganbayan thirteen (13) Informations
for estafa through falsification of public documents against petitioners, and one (1) Information for violation of Sec. 3, par.
(e), of RA No. 3019, the Anti-Graft and Corrupt Practices Act, against Mayor Lecaroz alone.
On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on all counts of estafa
through falsification of public documents and sentenced each of them to -
a) imprisonment for an indeterminate period ranging from a minimum of FIVE (5) YEARS, ELEVEN (11) MONTHS AND ONE
(1) DAY of prision correccional to a maximum of TEN (10) YEARS AND ONE (1) DAY of prison mayor FOR EACH OF THE
ABOVE CASES;
b) a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH OF THE ABOVE CASES or a total of SIXTY-FIVE
THOUSAND PESOS (P65,000), and
c) perpetual special disqualification from public office in accordance with Art. 214 of the Revised Penal Code.
x x x (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SIX HUNDRED SEVENTY-FIVE PESOS
(P23,675), the amount unlawfully obtained, to the Municipality of Sta.Cruz, Marinduque in restitution.
The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of office sometime in 1985
before then Assemblywoman Carmencita O. Reyes his assumption of the KB presidency upon the expiration of the term
of accused Lenlie Lecaroz was valid. Conversely, the accused Lenlie Lecaroz ceased to be a member of the KB on the last
Sunday of November 1985 and, as such, was no longer the legitimate representative of the youth sector in the municipal
council of Sta. Cruz, Marinduque.
In convicting both accused on the falsification charges, the Sandiganbayan elucidated -
x x x x when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of his son, the accused LENLIE LECAROZ,
in the payroll of the municipality of Sta. Cruz for the payroll period starting January 15, 1986, reinstating accused LENLIE
LECAROZ to his position in the Sangguniang Bayan, he was deliberately stating a falsity when he certified that LENLIE
LECAROZ was a member of the Sangguniang Bayan. The fact is that even accused LENLIE LECAROZ himself no longer
attended the sessions of the Sangguniang Bayan of Sta. Cruz, and starting with the payroll for January 16 to 31, 1986, did
not personally pick up his salaries anymore.
The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code which reads:
Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. - The penalty of prision mayor and a
fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary public who, taking advantage
of his official position, shall falsify a document by committing any of the following acts: x x x x 4. Making untruthful
statements in a narration of facts.
xxxx
Clearly, falsification of public documents has been committed by accused MAYOR LECAROZ.
Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able to draw salaries from the municipality
to which he was not entitled for services he had admittedly not rendered. This constitutes Estafa x x x x the deceit being
the falsification made, and the prejudice being that caused to the municipality of Sta. Cruz, Marinduque for having paid
salaries to LENLIE LECAROZ who was not entitled thereto.
Conspiracy was alleged in the Informations herein, and the Court found the allegation sufficiently substantiated by the
evidence presented.
There is no justifiable reason why accused MAYOR LECAROZ should have reinstated his son LENLIE in the municipal payrolls
from January 16, 1986 to January 31, 1987, yet he did so. He could not have had any other purpose than to enable his son
LENLIE to draw salaries thereby. This conclusion is inescapable considering that the very purpose of a payroll is precisely
that -- to authorize the payment of salaries. And LENLIE LECAROZ did his part by actually drawing the salaries during the
periods covered, albeit through another person whom he had authorized.
By the facts proven, there was conspiracy in the commission of Estafa between father and son.
However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3.019, the Sandiganbayan acquitted Mayor
Francisco Lecaroz. It found that Red was neither authorized to sit as member of the SB because he was not properly
appointed thereto nor had he shown to the mayor sufficient basis for his alleged right to a seat in the municipal council. On
this basis, the court a quo concluded that Mayor Lecaroz was legally justified in not allowing Red to assume the position
of Kagawad.
On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision filed by the accused. This
prompted herein petitioners to elevate their cause to us charging that the Sandiganbayan erred:
First, in holding that Red had validly and effectively assumed the office of KB Federation President by virtue of his oath
taken before then Assemblywoman Carmencita Reyes on 27 September 1985, and in concluding that the tenure of accused
Lenlie Lecaroz as president of the KB and his coterminous term of office as KB representative to the SB had accordingly
expired;
Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth representative to the SB had
expired, in holding that accused Lenlie Lecaroz could no longer occupy the office, even in a holdover capacity, despite the
vacancy therein;
Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation president had expired, in holding that
by reason thereof accused Lenlie Lecaroz became legally disqualified from continuing in office as KB Sectoral
Representative to the SB even in a holdover capacity;
Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the provisions of the pertinent
Ministry of Interior and Local Governments (MILG) interpretative circulars, accused Lenlie Lecaroz was legally entitled and
even mandated to continue in office in a holdover capacity;
Fifth, in holding that the accused had committed the crime of falsification within the contemplation of Art. 171 of The
Revised Penal Code, and in not holding that the crime of estafa of which they had been convicted required criminal intent
and malice as essential elements;
Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold over, still the trial court erred in
not holding - considering the difficult legal questions involved - that the accused acted in good faith and committed merely
an error of judgment, without malice and criminal intent; and,
Seventh, in convicting the accused for crimes committed in a manner different from that alleged in the Information under
which the accused were arraigned and tried.
The petition is meritorious. The basic propositions upon which the Sandiganbayan premised its conviction of the accused
are: (a) although Jowil Red was duly elected KB Chairman he could not validly assume a seat in the Sanggunian as KB
sectoral representative for failure to show a valid appointment; and, (b) Lenlie Lecaroz who was the incumbent KB
representative could not hold over after his term expired because pertinent laws do not provide for holdover.
To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth sectoral representatives to
the SB and of the KB Federation Presidents. Section 7 of BP Blg. 51 and Sec. 1 of the KB Constitution respectively provide
-
Sec. 7. Term of Office. - Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold
office for a term of six (6) years, which shall commence on the first Monday of March 1980.
In the case of the members of the sanggunian representing the association of barangay councils and the president of the
federation of kabataang barangay, their terms of office shall be coterminous with their tenure is president of their
respective association and federation .
xxxx
Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the last Sunday of November
1985 or such time that the newly elected officers shall have qualified and assumed office in accordance with this
Constitution.
The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he did not present an
authenticated copy of his appointment papers; neither did he take a valid oath of office. Resultantly, this enabled
petitioner Lenlie Lecaroz to continue as member of the SB although in a holdover capacity since his term had already
expired. The Sandiganbayan however rejected this postulate declaring that the holdover provision under Sec. 1 quoted
above pertains only to positions in the KB, clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51,
there can be no holdover with respect to positions in the SB.
We disagree with the Sandiganbayan. The concept of holdover when applied to a public officer implies that the office has
a fixed term and the incumbent is holding onto the succeeding term.[6] It is usually provided by law that officers elected
or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and
qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no
successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and
qualified, even though it be beyond the term fixed by law.[7]
In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his post after the
expiration of his term in case his successor fails to qualify, it does not also say that he is proscribed from holding
over. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in
office until his successor is appointed or chosen and has qualified.[8] The legislative intent of not allowing holdover must
be clearly expressed or at least implied in the legislative enactment,[9] otherwise it is reasonable to assume that the law-
making body favors the same.
Indeed, the law abhors a vacuum in public offices,[10] and courts generally indulge in the strong presumption against a
legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for
any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions.[11] This is founded on
obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience
from suffering because of a vacancy[12] and to avoid a hiatus in the performance of government functions.[13]
The Sandiganbayan maintained that by taking his oath of office before Assemblywoman Reyes in 1985 Red validly assumed
the presidency of the KB upon the expiration of the term of Lenlie Lecaroz.It should be noted however that under the
provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI thereof, members of the then Batasang
Pambansa were not authorized to administer oaths. It was only after the approval of RA No. 6733[14]on 25 July 1989 and
its subsequent publication in a newspaper of general circulation that members of both Houses of Congress were vested
for the first time with the general authority to administer oaths. Clearly, under this circumstance, the oath of office taken
by Jowil Red before a member of the Batasang Pambansa who had no authority to administer oaths, was invalid and
amounted to no oath at all.
To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the
office.[15] Only when the public officer has satisfied the prerequisite of oath that his right to enter into the position
becomes plenary and complete. Until then, he has none at all. And for as long as he has not qualified, the holdover officer
is the rightful occupant. It is thus clear in the present case that since Red never qualified for the post, petitioner Lenlie
Lecaroz remained KB representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a de
jure officer,[16]or at least a de facto officer[17] entitled to receive the salaries and all the emoluments appertaining to the
position. As such, he could not be considered an intruder and liable for encroachment of public office.[18]
On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were convicted, i.e., estafa through
falsification of public documents under Art. 171, par. 4, of The Revised Penal Code, are intentional felonies for which
liability attaches only when it is shown that the malefactors acted with criminal intent or malice.[19] If what is proven is
mere judgmental error on the part of the person committing the act, no malice or criminal intent can be rightfully imputed
to him. Was criminal intent then demonstrated to justify petitioners' conviction? It does not so appear in the case at bar.
Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum, nisi mens sit rea. There
can be no crime when the criminal mind is wanting. As a general rule, ignorance or mistake as to particular facts, honest
and real, will exempt the doer from felonious responsibility. The exception of course is neglect in the discharge of a duty
or indifference to consequences, which is equivalent to a criminal intent, for in this instance, the element of malicious
intent is supplied by the element of negligence and imprudence[20] In the instant case, there are clear manifestations of
good faith and lack of criminal intent on the part of petitioners.
First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986, what he presented to Mayor
Francisco Lecaroz was a mere telegram purportedly sent by Imee Marcos-Manotoc informing him of his supposed
appointment to the SB, together with a photocopy of a "Mass Appointment." Without authenticated copies of the
appointment papers, Red had no right to assume office as KB representative to the Sanggunian, and petitioner Mayor
Lecaroz had every right to withhold recognition, as he did, of Red as a member of the Sanggunian.
Second. It appears from the records that although Red received his appointment papers signed by President Marcos in
January 1986, he forwarded the same to Mayor Francisco Lecaroz only on 23 April 1986 during which time President
Marcos had already been deposed and President Aquino had already taken over the helm of government. On 25 March
1986 the Freedom Constitution came into being providing in Sec. 2 of Art. III thereof that -
Sec. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by. proclamation or executive order or upon the designation of their successors if such appointment
is made within a period of one (1) year from February 26, 1986 (underscoring supplied).
Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the provincial governor
forwarded the papers of Jowil Red to then Minister of Interior and Local Government Aquilino Pimentel, Jr., requesting
advice on the validity of the appointment signed by former President Marcos. The response was the issuance of MILG
Provincial Memorandum-Circular No. 86-02[21] and Memorandum-Circular No. 86-17[22] stating that -
PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02
2. That newly elected KB Federation Presidents, without their respective authenticated appointments from the president,
cannot, in any way, represent their associations in any sangguniang bayan/sangguniang panlalawigan, as the case may be,
although they are still considered presidents of their federations by virtue of the July 1985 elections.
MEMORANDUM CIRCULAR NO. 86-17
It is informed, however, that until replaced by the Office of the President or by this Ministry the appointive members of
the various Sangguniang Bayan, Sangguniang Panlunsod, and the Sangguniang Panlalawigan shall continue to hold office
and to receive compensation due them under existing laws, rules and regulations.
The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars virtually confirmed the right
of incumbent KB Federation Presidents to hold and maintain their positions until duly replaced either by the President
herself or by the Interior Ministry. Explicit therein was the caveat that newly elected KB Federation Presidents could not
assume the right to represent their respective associations in any Sanggunian unless their appointments were
authenticated by then President Aquino herself. Truly, prudence impelled Mayor Lecaroz to take the necessary steps to
verify the legitimacy of Red's appointment to the Sanggunian.
Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of Presidents Macapagal,
Marcos and Aquino concerning the doctrine of holdover. This consistently expressed the view espoused by the executive
branch for more than thirty (30) years that the mere fixing of the term of office in a statute without an express prohibition
against holdover is not indicative of a legislative intent to prohibit it, in light of the legal principle that just as nature abhors
a vacuum so does the law abhor a vacancy in the government.[23] Reliance by petitioners on these opinions, as well as on
the pertinent directives of the then Ministry of Interior and Local Government, provided them with an unassailable status
of good faith in holding over and acting on such basis; and,
Fourth. It is difficult to accept that a person, particularly one who is highly regarded and respected in the community,
would deliberately blemish his good name, and worse, involve his own son in a misconduct for a measly sum
of P23,675.00, such as this case before us. As aptly deduced by Justice Del Rosario[24]
If I were to commit a crime, would I involve my son in it? And if I were a town mayor, would I ruin my name for the measly
sum of P1,894.00 a month? My natural instinct as a father to protect my own son and the desire, basic in every man, to
preserve one's honor and reputation would suggest a resounding NO to both questions. But the prosecution ventured to
prove in these thirteen cases that precisely because they were father and son and despite the relatively small amount
involved, accused Mayor Francisco Lecaroz conspired with Lenlie Lecaroz to falsify several municipal payrolls for the
purpose of swindling their own town of the amount of P1,894.00 a month, and the majority has found them guilty. I find
discomfort with this verdict basically for the reason that there was no criminal intent on their part to falsify any document
or to swindle the government.
The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith.[25] In Cabungcal v.
Cordova[26] we affirmed the doctrine that an erroneous interpretation of the meaning of the provisions of an ordinance by
a city mayor does not amount to bad faith that would entitle an aggrieved party to damages against that official. We
reiterated this principle in Mabutol v. Pascual[27] which held that public officials may not be liable for damages in the
discharge of their official functions absent any bad faith. Sanders v. Veridiano II[28] expanded the concept by declaring that
under the law on public officers, acts done in the performance of official duty are protected by the presumption of good
faith.
In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2) circumstances which
purportedly indicated criminal intent. It pointed out that the name of accused Lenlie Lecaroz was not in the municipal
payroll for the first quincena of 1986 which meant that his term had finally ended, and that the reinstatement of Lenlie
Lecaroz by Mayor Francisco Lecaroz in the payroll periods from 15 January 1986 and thereafter for the next twelve and a
half (12 -1/2) months was for no other purpose than to enable him to draw salaries from the municipality. [29] There is
however no evidence, documentary or otherwise, that Mayor Francisco Lecaroz himself caused the name of Lenlie Lecaroz
to be dropped from the payroll for the first quincena of January 1986. On the contrary, it is significant that while Lenlie
Lecaroz' name did not appear in the payroll for the first quincena of January 1986, yet, in the payroll for the
next quincena accused Lenlie Lecaroz was paid for both the first and second quincenas, and not merely for the second half
of the month which would have been the case if he was actually "dropped" from the payroll for the first fifteen (15) days
and then "reinstated" in the succeeding payroll period, as held by the court a quo.
From all indications, it is possible that the omission was due to the inadequate documentation of Red's appointment to
and assumption of office, or the result of a mere clerical error which was later rectified in the succeeding payroll. This
however cannot be confirmed by the evidence at hand. But since a doubt is now created about the import of such
omission, the principle of equipoise should properly apply. This rule demands that all reasonable doubt intended to
demonstrate error and not a crime should be resolved in favor of the accused. If the inculpatory facts and circumstances
are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other with
his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.[30]
Petitioners have been convicted for falsification of public documents through an untruthful narration of facts under Art.
171, par. 4, of The Revised Penal Code. For the offense to be established, the following elements must concur: (a) the
offender makes in a document statements in a narration of facts; (b) the offender has a legal obligation to disclose the
truth of the facts narrated; (c) the facts narrated by the offender are absolutely false; and, (d) the perversion of truth in
the narration of facts was made with the wrongful intent of injuring a third person.
The first and third elements of the offense have not been established in this case. In approving the payment of salaries to
Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded certifications thus -
I hereby certify on my official oath that the above payroll is correct, and that the services above stated have been duly
rendered. Payment for such services is also hereby approved from the appropriations indicated.
When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration of facts but a conclusion
of law expressing his belief that Lenlie Lecaroz was legally holding over as member of the Sanggunian and thus entitled to
the emoluments attached to the position. This is an opinion undoubtedly involving a legal matter, and any
"misrepresentation" of this kind cannot constitute the crime of false pretenses.[31] In People v. Yanza[32] we ruled -
Now then, considering that when defendant certified she was eligible for the position, she practically wrote a conclusion
of law which turned out to be inexact or erroneous - not entirely groundless - we are all of the opinion that she may not
be declared guilty of falsification, specially because the law which she has allegedly violated (Art. 171, Revised Penal Code,
in connection with other provisions), punishes the making of untruthful statements in a narration of facts - emphasis on
facts x x x x Unfortunately, she made a mistake of judgment; but she could not be held thereby to have intentionally made
a false statement of fact in violation of Art. 171 above-mentioned.
The third element requiring that the narration of facts be absolutely false is not even adequately satisfied as the belief of
Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover member of the Sanggunian was not entirely bereft of basis,
anchored as it was on the universally accepted doctrine of holdover. La mera inexactitude no es bastante para integrar
este delito.[33] If the statements are not altogether false, there being some colorable truth in them, the crime of falsification
is deemed not to have been committed.
Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was not proved in this case. The court a
quo used as indication of conspiracy the fact that the accused Mayor certified the payrolls authorizing payment of
compensation to his son Lenlie Lecaroz and that as a consequence thereof the latter collected his salaries. These are not
legally acceptable indicia, for they are the very same acts alleged in the Informations as constituting the crime of estafa
through falsification. They cannot qualify as proof of complicity or unity of criminal intent. Conspiracy must be established
separately from the crime itself and must meet the same degree of proof, i.e., proof beyond reasonable doubt. While
conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before,
during and after the commission of the crime, all taken together however, the evidence must reasonably be strong enough
to show community of criminal design.[34]
Perhaps subliminally aware of the paucity of evidence to support it, and if only to buttress its finding of conspiracy, the
Sandiganbayan stressed that the two accused are father and son. Granting that this is not even ad hominem, we are
unaware of any presumption in law that a conspiracy exists simply because the conspirators are father and son or related
by blood.
WHEREFORE, the petition is GRANTED. The assailed Decision of 7 October 1994 and Resolution of 1 October 1997 of the
Sandiganbayan are REVERSED and SET ASIDE, and petitioners FRANCISCO M. LECAROZ and LENLIE LECAROZ are
ACQUITTED of all the thirteen (13) counts of estafa through falsification of public documents (Crim. Cases Nos. 13904-
13916). The bail bonds posted for their provisional liberty are cancelled and released. Costs de oficio.
SO ORDERED.
Puno, Mendoza, Quisumbing, and Buena, JJ., concur.

[G.R. No. 138489. November 29, 2001]

ELEANOR DELA CRUZ, FEDERICO LUCHICO, JR., SOLEDAD EMILIA CRUZ, JOEL LUSTRIA, HENRY PAREL, HELENA HABULAN,
PORFIRIO VILLENA, JOSEPH FRANCIA, CARMELLA TORRES, JOB DAVID, CESAR MEJIA, MA. LOURDES V. DEDAL, ALICE
TIONGSON, REYDELUZ CONFERIDO, PHILIPPE LIM, NERISSA SANCHEZ, MARY LUZ ELAINE PURACAN, RODOLFO QUIMBO,
TITO GENILO and OSCAR ABUNDO, as members of the Board of the National Housing Authority from the period covering
1991-1996, petitioners, vs. COMMISSION ON AUDIT, represented by its Commissioners, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
This petition for certiorari[1] assails the Decision No. 98-381 dated September 22, 1998, rendered by the Commission on
Audit (COA), denying petitioners appeal from the Notice of Disallowance No. 97-011-061 issued by the NHA Resident
Auditor on October 23, 1997. Such Notice disallowed payment to petitioners of their representation allowances and per
diems for the period from August 19, 1991 to August 31, 1996 in the total amount of P276,600.00.
Petitioners, numbering 20, were members of the Board of Directors of the National Housing Authority (NHA) from 1991
to 1996.
On September 19, 1997, the COA issued Memorandum No. 97-038[2] directing all unit heads/auditors/team leaders of the
national government agencies and government-owned and controlled corporations which have effected payment of any
form of additional compensation or remuneration to cabinet secretaries, their deputies and assistants, or their
representatives, in violation of the rule on multiple positions, to (a) immediately cause the disallowance of such additional
compensation or remuneration given to and received by the concerned officials, and (b) effect the refund of the same
from the time of the finality of the Supreme Court En Banc Decision in the consolidated cases of Civil Liberties Union vs.
Exexcutive Secretary and Anti-Graft League of the Philippines, Inc. et al. vs. Secretary of Agrarian Reform, et
al., promulgated on February 22, 1991.[3] The COA Memorandum further stated that the said Supreme Court Decision,
which became final and executory on August 19, 1991,[4]declared Executive Order No. 284 unconstitutional insofar as it
allows Cabinet members, their deputies and assistants to hold other offices, in addition to their primary offices, and to
receive compensation therefor.
Accordingly, on October 23, 1997, NHA Resident Auditor Salvador J. Vasquez issued Notice of Disallowance No. 97-011-
061[5] disallowing in audit the payment of representation allowances and per diems of "Cabinet members who were
the ex- officio members of the NHA Board of Directors and/or their respective alternates who actually received the
payments." The total disallowed amount of P276,600 paid as representation allowances and per diems to each of the
petitioners named below, covering the period from August 19, 1991 to August 31, 1996, is broken down as follows: [6]
NATIONAL HOUSING AUTHORITY
SCHEDULE OF PAID REPRESENTATION/PER DIEM OF THE BOARD OF DIRECTORS
For the period August 19, 1991 to August 31, 1996
AGENCY MEMBERS OF BOARD OF AMOUNT DISALLOWED
DIRECTORS
DOF Eleanor dela Cruz P25,200.00
(1991-1993)
DTI Federico Luchico, Jr. 36,450.00
(1991-1992)
DOF Soledad Emilia Cruz 57,300.00
(1992-1995)
DOLE Joel Lustria 4,500.00
(1992)
DOLE Henry Parel 2,250.00
(1992)
DOF Helena Habulan 4,050.00
(1993-1994)
DOF Porfirio Villena 6,750.00
(1993)
DTI Joseph Francia 73,500.00
(1993-1995)
DOLE Carmela Torres 4,500.00
(1993)
DPWH Job David 6,750.00
(1993-1994)
DPWH Cesar Mejia 3,150.00
(1993)
DOF Ma. Lourdes V. Dedal 2,250.00
(1993)
DTI Alice Tiongson 900.00
(1994)
DOLE Reynaluz Conferido 11,250.00
(1994-1995)
DOLE Philippe Lim 4,500.00
(1994-1995)
DOF Nerissa Sanchez 2,700.00
(1995)
DOF Mary Luz Elaine Puracan 1,800.00
(1995)
DOLE Rodolfo Quimbo 7,200.00
(1995)
DOLE Tito Genilo 14,400.00
(1995)
DPWH Oscar Abundo 7,200.00
(1995-1996) _____________
P276,600.00
============
Petitioners, through then Chairman Dionisio C. Dela Serna of the NHA Board of Directors, appealed from the Notice of
Disallowance to the Commission on Audit[7] based on the following grounds:
1. The Decision of the Supreme Court in Civil Liberties Union and Anti-Graft League of the Philippines, Inc. was clarified in
the Resolution of the Court En Banc on August 1, 1991, in that the constitutional ban against dual or multiple positions
applies only to the members of the Cabinet, their deputies or assistants. It does not cover other appointive officials with
equivalent rank or those lower than the position of Assistant Secretary; and
2. The NHA Directors are not Secretaries, Undersecretaries or Assistant Secretaries and that they occupy positions lower
than the position of Assistant Secretary.
On September 22, 1998, the COA issued Decision No. 98-381[8] denying petitioners' appeal, thus:
After circumspect evaluation of the facts and issues raised herein, this Commission finds the instant appeal devoid of
merit. It must be stressed at the outset that the Directors concerned were not sitting in the NHA Board in their own right
but as representatives of cabinet members and who are constitutionally prohibited from holding any other office or
employment and receive compensation therefor, during their tenure (Section 13, Article VII, Constitution; Civil Liberties
Union vs. Executive Secretary, 194 SCRA 317).
It may be conceded that the directors concerned occupy positions lower than Assistant Secretary which may exempt them
from the prohibition (under) the doctrine enunciated in Civil Liberties Union vs. Executive Secretary, supra. However, their
positions are merely derivative; they derive their authority as agents of the authority they are representing; their power
and authority is sourced from the power and authority of the cabinet members they are sitting for. Sans the cabinet
members, they are non-entities, without power and without personality to act in any manner with respect to the official
transactions of the NHA. The agent or representative can only validly act and receive benefits for such action if the
principal authority he is representing can legally do so for the agent can only do so much as his principal can do. The agent
can never be larger than the principal. If the principal is absolutely barred from holding any position in and absolutely
prohibited from receiving any remuneration from the NHA or any government agency, for that matter, so must the agent
be. Indeed, the water cannot rise above its source.[9]
Hence, this petition.
Presidential Decree No. 757 is the law "Creating the National Housing Authority and dissolving the existing housing
agencies, defining its powers and functions, providing funds therefor, and for other purposes." Section 7 thereof provides:
SEC. 7. Board of Directors. - The Authority shall be governed by a Board of Directors, hereinafter referred to as the Board,
which shall be composed of the Secretary of Public Works, Transportation and Communication, the Director-General of
the National Economic and Development Authority, the Secretary of Finance, the Secretary of Labor, the Secretary of
Industry, the Executive Secretary and the General Manager of the Authority. From among the members, the President
will appoint a chairman. The members of the Board may have their respective alternates who shall be the officials next in
rank to them and whose acts shall be considered the acts of their principals with the right to receive their benefit:
Provided, that in the absence of the Chairman, the Board shall elect a temporary presiding officer. x x x (Emphasis ours)
It bears stressing that under the above provisions, the persons mandated by law to sit as members of the NHA Board are
the following: (1) the Secretary of Public Works, Transportation and Communications, (2) the Director-General of the
National Economic and Development Authority, (3) the Secretary of Finance, (4) the Secretary of Labor, (5) the Secretary
of Industry, (6) the Executive Secretary, and (7) the General Manager of the NHA. While petitioners are not among those
officers, however, they are alternates of the said officers, whose acts shall be considered the acts of their principals.
On this point, Section 13, Art. VII of the 1987 Constitution, provides:
SEC. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during
their tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or
instrumentality thereof, including any government-owned or controlled corporations or their subsidiaries. They shall
strictly avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his
tenure be appointed as Members of the Constitutional Commissions, or the Office of Ombudsman, or as Secretaries,
Undersecretaries, Chairmen, or heads of bureaus of offices, including government-owned or controlled corporations and
their subsidiaries.
Interpreting the foregoing Constitutional provisions, this Court, in Civil Liberties Union and Anti-Graft League of the
Philippines, Inc.,[10] held:
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution
must not, however, be construed as applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said
officials' office. The reason is that these posts do not comprise any other office within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and functions on said officials. x x x
xxxxxxxxx
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the
concerned officials office. The term ex-officio means from office; by virtue of office. It refers to an authority derived from
official character merely, not expressly conferred upon the individual character, but rather annexed to the official
position. Ex-officio likewise denotes an act done in an official character, or as a consequence of office, and without any
other appointment or authority than that conferred by the office. An ex-officio member of a board is one who is a member
by virtue of his title to a certain office, and without further warrant or appointment. To illustrate, by express provision of
law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports
Authority, and the Light Rail Transit Authority.
xxxxxxxxx
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official
concerned has no right to receive additional compensation for his services in the said position. The reason is that these
services are already paid for and covered by the compensation attached to his principal office. It should be obvious that
if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually
and in legal contemplation performing the primary function of his principal office in defining policy in monetary banking
matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to
collect any extra compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some
other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the
Constitution.
xxxxxxxxx
(Emphasis ours)
Since the Executive Department Secretaries, as ex-oficio members of the NHA Board, are prohibited from receiving extra
(additional) compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other such
euphemism," it follows that petitioners who sit as their alternates cannot likewise be entitled to receive such
compensation. A contrary rule would give petitioners a better right than their principals.
We thus rule that in rendering its challenged Decision, the COA did not gravely abuse its discretion.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo, Ynares-Santiago, De Leon ,
Jr., and Carpio, JJ., concur.
Quisumbing, J., no part. Former DOLE Secretary.
Buena, J., on official leave.

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.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.

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 the proviso 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",4since 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 appointive official 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
19
Law, 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," 21and 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.
Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo and Quiason, JJ., concur.
Padilla, J., is on leave.

321 Phil. 931

DAVIDE, JR., J.:

In a verified complaint dated 19 October 1988 and received by the Office of the Court Administrator on 18 November
1988, the complainant charges the respondent with having misrepresented himself as a full-fledged lawyer and having
acted as one of the authorized representatives of the complainant and his co-complainants in labor cases filed with
Regional Arbitration Branch VI of the National Labor Relations Commission (NLRC) of Bacolod City despite the fact that he
is a court employee.

Then Deputy Court Administrator Meynardo A. Tiro referred the complaint to the respondent through the Presiding Judge
of Branch 45 of the Regional Trial Court (RTC) of Bacolod City and required him to comment thereon.

In his Comment/Explanation, the respondent admits having assisted the complainants in the aforementioned labor cases;
denies having misrepresented himself as a lawyer; and explained the nature of the assistance he had given to the
complainants. According to him, when he first met complainant Abeto in December 1986, he frankly informed the latter
that he is only a court employee and that he is only assisting or helping Mr. Arturo Ronquillo, for at that time no lawyer
dared to assist the complainants in filing their cases. This Arturo Ronquillo is the Vice President of the Workers
Amalgamated Union of the Philippines (WAUP) whose assistance was sought by complainant Abeto and the other
complainants in the labor cases for the filing and prosecution of their cases. The respondent further alleges that the instant
complaint arose out of ill-feeling and is designed to malign and destroy his name and reputation as a court employee. He
manifests, however, that "in the event that his good motives and intentions in helping the poor and downtrodden
workers/employees of BISCOM Central would be considered not in consonance with Memorandum Circular No. 17 dated
September 4, 1986 issued by the Executive Department and is prohibited by Administrative Circular No. 5 issued by the
Supreme Court, Manila, then [he] will readily and obediently submit to the sound discretion of the Honorable Supreme
Court."

On 28 August 1989, then Deputy Court Administrator Juanito Bernad submitted a memorandum recommending that the
complaint against the respondent for misrepresentation be dismissed, but that he be advised to heed the Civil Service
Rules and this Court's memorandum circular prohibiting government employees from engaging in any private business,
vocation, or profession without permission from this Court.

In his Letter-Petition dated 11 July 1995, the respondent asked for an early resolution of this case, which he considers
baseless as it is but an offshoot of a petty misunderstanding between him and the complainant. He also invited the
attention of this Court to the complainant's affidavit of desistance and letter to the Court requesting that this case be
dismissed. He later submitted the said affidavit and letter.

In the resolution of 18 September 1995, this Court directed the Office of the Court Administrator to reevaluate this case
and to submit a report thereon.

On 13 October 1995, Deputy Court Administrator Zenaida N. Elepaño submitted a Memorandum, duly approved by the
Court Administrator, wherein she made the following findings and conclusion:

It is worth mentioning here Sec. 12, Rule XVIII of the Revised Civil Service Rules which provides that:

"Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected
with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of
Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties
and responsibilities require that their entire time be at the disposal of the Government: Provided, further, That if an
employee is granted permission to engage, in outside activities, the time so devoted outside of office hours should be
fixed by the chief of the agency to the end that it will not impair in any way the efficiency of the officer or employee: And
provided, finally, That no permission is necessary in the case of investments, made by an officer or employee, which do
not involve any real or apparent conflict between his private interests and public duties, or in any way influence him in
the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer or member
of the board of directors."

Moreover in Administrative Circular No. 5 dated 4 October 1988 the Court expressed the view that

"The entire time of Judiciary officials and employees must be devoted to government service to insure efficient and speedy
administration of justice considering the express prohibition in the Rules of Court and the nature of their work which
requires them to serve with the highest degree of efficiency and responsibility, in order to maintain public confidence in
the Judiciary."

These circumstances obtaining, we believe that the stenographer Garcesa merits at the very least a reprimand for
engaging in a limited law practice. (Italics supplied)

She then recommends:

IN VIEW OF THE FOREGOING, it is respectfully recommended that the penalty of REPRIMAND be imposed on Manuel
Garcesa, Stenographer Reporter, RTC, Branch 45, Bacolod City for failure to heed the abovequoted Civil Service rule and
the Supreme Court Administrative Circular which prohibits government employees from engaging in any private business,
vocation, or profession without permission from the Court.

We agree with the recommendation of Deputy Court Administrator Elepaño. Indeed, per Annex "A" of the complaint, the
respondent and one Arturo Ronquillo signed as "Authorized Representatives" of the complainants in an Ex-Parte Formal
Manifestation dated 11 August 1988 in the following labor cases: RAB VI Cases Nos. 0272-86, 0304-86, 01-0067-87, 06-
0295-87, and 04-0202-87. And in his Comment/Explanation, he admitted having given or extended "casual assistance" to
Mr. Arturo Ronquillo in the filing and prosecution of the said cases. His justification therefor -- to help the poor and
downtrodden workers of BISCOM Central -- will not absolve him from administrative liability for the violation of Section
12, Rule XVIII of the Revised Civil Service Rules and of the rulings of this Court inValdez and in Rabanal which were
incorporated in Administrative Circular No. 5 of 4 October 1988.
He could not, however, be liable for unauthorized practice of law, since there is no convincing evidence that he
misrepresented himself as a lawyer. Moreover, his appearance was in his capacity as one of the representatives of the
complainants in the labor cases and not as a lawyer. Under Section 6, Rule IV of the Revised Rules of Procedure of the
NLRC in force at that time, a non-lawyer may appear before the NLRC or any Labor Arbiter if he represents himself as a
party to the case, represents an organization or its members, or is a duly accredited member of a free legal aid staff of the
Department of Labor and Employment or of any other legal aid office accredited by the Department of Justice or the
Integrated Bar of the Philippines.

Neither could he be liable under Memorandum Circular No. 17 dated 4 September 1986 of the Office of the President
declaring that the authority to grant permission to any official or employee to engage in outside activities shall be granted
by the head of the ministry (department) or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service
Rules. Said Memorandum Circular No. 17 was declared by this Court inapplicable to officials or employees of the
courts. Thus, in its Administrative Circular No. 5 dated 4 October 1988, this Court stated:

However, in its En Banc resolution dated October 1, 1987, denying the request of Atty. Froilan L. Valdez of the Office of
Associate Justice Ameurfina Melencio-Herrera, to be commissioned as a Notary Public, the Court expressed the view that
the provisions of Memorandum Circular No. 17 of the Executive Department are not applicable to officials or employees
of the courts considering the express prohibition in the Rules of Court and the nature of their work which requires them
to serve with the highest degree of efficiency and responsibility, in order to maintain public confidence in the Judiciary.
The same, policy was adopted in Administrative Matter No. 88-6-002-SC, June 21, 1988, where the court denied the
request of Ms. Esther C. Rabanal, Technical Assistant II, Leave Section, Office of the Administrative Services of this Court,
to work as an insurance agent after office hours including Saturdays, Sundays and holidays. Indeed, the entire time of
Judiciary officials and employees must be devoted to government service to insure efficient and speedy administration of
justice.

ACCORDINGLY, all officials and employees of the Judiciary are hereby enjoined from being commissioned as insurance
agents or from engaging in any such related activities, and, to immediately desist therefrom if presently engaged thereat.

This prohibition is directed against "moonlighting," which amounts to malfeasance in office (Biyaheros Mart Livelihood
Association, Inc. vs. Cabusao, 232 SCRA 707 [1994]).

WHEREFORE, for malfeasance in office consisting in the violation of Section 12, Rule XVIII of the Revised Civil Service Rules
and of the rulings of this Court of 1 October 1987 in the case of Atty. Froilan L. Valdez and of 21 June 1988 in the case of
Ms. Esther C. Rabanal embodied in Administrative Circular No. 5 dated 4 October 1988, respondent MANUEL GARCESA is
hereby REPRIMANDED and warned that the commission of the same or similar acts in the future shall be dealt with more
severely.

SO ORDERED.

[A.M. No. P-97-1247. May 14, 1997]

(Formerly A.M. OCA I.P.I.1 No. P-97-1247)
NARITA RABE, complainant, vs. DELSA M. FLORES, Interpreter III, RTC, Branch IV, Panabo, Davao, respondent.
DECISION
PER CURIAM:
In an administrative complaint for "Conduct Unbecoming a Government Employee, Acts Prejudicial to the Interest of the
Service and Abuse of Authority" dated August 18, 1995, Complainant Narita Rabe,2 by counsel, charged Respondent Delsa
M. Flores, Interpreter III at the Regional Trial Court, Branch IV, Panabo, Davao, as follows:3
"(Mrs.) Flores took advantage of her position as a court employee by claiming a stall at the extension of the Public Public
(sic) Market when she is (sic) not a member of our client's association and was never a party to Civil Case No. 89-23. She
herself knows (sic) that the stalls in the said area had already been awarded to our client's members pursuant to the
decision of the court on October 30, 1991. Worse, she took the law into her hands when she destroyed the stall of our
client and brought the materials to the police station of Panabo, Davao."
After respondent filed her answer, the Court issued a Resolution dated January 17, 1996, absolving her of the charge. In
the same resolution, however, the Court required respondent to explain why she should not be administratively dealt
with for the following:4
"x x x a) why she obtained a certification dated June 18, 1991 issued by Atty. Victor R. Ginete, Clerk of Court, same court,
that she started performing her duties as (an) interpreter on May 16, 1991 when (1) according to a certification dated
June 17, 1991 issued by Mr. Jose B. Avenido, Municipal Treasurer, Panabo Davao, she was employed in the office of the
Municipal Assessor as Assessment Clerk I since February 1, 1990 to June 3, 1991 with her last salary being paid by said
office on June 3, 1991; and (2) she took her oath of office before Judge Mariano C. Tupas only on June 17, 1991;
b) why she did not report said business interest in her sworn statement of Assets, Liabilities and Net Worth, Disclosure of
Business Interests and Financial Connections, and Identification of Relatives in the Government Service for the years 1991,
1992, 1993, and 1994;
c) why she has not divested herself of her interest in said business within sixty (60) days from her assumption into (sic)
office; and
d) why she has indicated in her DTRs for August 1995 that she worked on August 15-18, 21, 23-25 and 28-31 and for
September, 1995 that she worked for all its twenty one (21) working days when her Contract of Lease with the Municipal
Government of Panabo for the market stall in its Section 7 clearly states that she has to personally conduct her business
and be present at the stall otherwise the same would be canceled as per its Section 13."
Respondent Flores, in a letter dated February 13, 1996, explains that, as stated in the certification of Atty. Ginete, she
assumed her job in the Regional Trial Court, Branch IV, Panabo, Davao on May 16, 1991, in compliance with the directive
from this Court for her to start working on the said date. Respondent further states that "even prior to said date (May 16,
1991)" she already reported to the court in order to familiarize herself with the scope of her duties.5
Respondent Flores also admits that she had received from the municipality a salary for the period May 16 1991 May 31,
1991, notwithstanding her transfer to the judiciary on May 16, 1991. She submits, however, the following justification:6
"I admit that I received my last salary in the amount of One Thousand and 80/100 (P1,000.80) Pesos from the Local
Government Unit from May 16-31, 1991 but farthest from my mind is the intent to defraud the government. It was my
desire all the time to refund the amount the moment my salary is received from the Supreme Court, unfortunately more
often than not (the salary) is received three or four months after assumption of office.
As we all know the month of May and June is the time we enroll our children in school thus the money I got that month
from the Local Government Unit came handy in defraying registration expenses of my four children. The passage of time
coupled with some intervening events, made me oblivious of my obligation to refund the money. However, when my
attention was called on the day I received the copy of the resolution, I took no time in refunding the same."
Respondent alleges that the certification of Municipal Treasurer Jose V. Avenido is inaccurate because it was on January
25, 1990 that she was appointed as Assessment Clerk I.7According to respondent, she took her oath on June 17, 1991,
simply because it was on that date that she received a copy of her oath form.8
Respondent avers that she did not divulge any business interest in her Sworn Statement of Assets and Liabilities and
Financial Disclosure for the years 1991-1994 because she "was never engaged in business during said period although I
had a stall in the market."9
Respondent further avers that her Daily Time Record indicated that she held office on August 15, 18, 21, 23 to 25 and 28,
31 and all the working days of September, 1995 "because in truth and in fact x x x (she) did hold office on those days." This
was because her contract of lease with the Municipal Government of Panabo was never implemented as it became the
subject of "Civil Case No. 95-53 -- Panabo Public Market Vendors Assn. Inc. and Pag-ibig Ng Gulayan Ass. Inc. Vs.
Municipality of Panabo, et al., for Declaration of Nullity of Mun. Ord. No. XLV, Series of 1994."10
The Court referred the matter to the Office of the Court Administrator for evaluation, report and recommendation. In its
report, the OCA found respondent guilty of dishonesty and failure to report her business interest, and recommended that
the penalty of dismissal be imposed on her. The Court finds that the report and recommendation of the OCA is in accord
with the evidence and the law. We hold the explanation of respondent unsatisfactory. Respondent's misconduct is evident
from the records.
By her own admission, respondent had collected her salary from the Municipality of Panabo for the period of May 16-31,
1991, when she was already working at the RTC. She knew that she was no longer entitled to a salary from the municipal
government, but she took it just the same. She returned the amount only upon receipt of the Court Resolution dated
January 17, 1996, or more than five (5) years later. We cannot countenance the same. Respondent's conduct is plain
dishonesty.
Her explanation, as observed earlier, is unsatisfactory. Her overriding need for money from the municipal government,
aggravated by the alleged delay in the processing of her initial salary from the Court, does not justify receipt of a salary
not due her. We sympathize with respondent's sad plight of being the sole breadwinner of her family, with her husband
and parents to feed and children to send to school. This, however, is not an acceptable excuse for her misconduct. If
poverty and pressing financial need could justify stealing, the government would have been bankrupt long ago. A public
servant should never expect to become wealthy in government.
But there is really more to respondents' defense of poverty. If respondent was just driven by dire pecuniary need,
respondent should have returned the salary she had obtained from the Municipal Government of Panabo as soon as she
obtained her salary from the court. However, she returned the money only after receipt of the Court's Resolution dated
January 17, 1996, saying that she forgot all about it. Forgetfulness or failure to remember is never a rational or acceptable
explanation.
In Macario Flores vs. Nonilon Caniya, Deputy Sheriff, RTC, Imus, Cavite,11 this Court ruled that a sheriff who failed to issue
an official receipt for the money entrusted to him for the purpose of satisfying a judgment debt, "had really wanted to
misappropriate the said amount." Inevitably, he was dismissed from service with forfeiture of all retirement benefits and
accrued leave credits, with prejudice to re-employment in any branch or instrumentality of the government, including
government-owned or controlled corporations.
It is well to stress once again the constitutional declaration that a "(p)ublic office is a public trust. Public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives."12
We have repeatedly held that although every office in the government service is a public trust, no position exacts a greater
demand for moral righteousness and uprightness from an individual than in the judiciary. Personnel in the judiciary should
conduct themselves in such a manner as to be beyond reproach and suspicion, and free from any appearance of
impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday life. They
are strictly mandated to maintain good moral character at all times and to observe irreproachable behavior so as not to
outrage public decency.13
This Court, in JPDIO vs. Josephine Calaguas, Records Officer, OCC, MTCC, Angeles City,14 held:
"The Court must reiterate that a public office is a public trust. A public servant is expected to exhibit, at all times, the
highest degree of honesty and integrity and should be made accountable to all those whom he serves."
Respondent's malfeasance is a clear contravention of the constitutional dictum that the State shall "maintain honesty and
integrity in the public service and take positive and effective measures against graft and corruption."15
Under the Omnibus Rules Implementing Book V of EO No. 292 known as the "Administrative Code of 1987" and other
pertinent Civil Service Laws, the penalty for dishonesty is dismissal, even for the first offense.16 Accordingly, for
respondent's dishonesty in receiving and keeping what she was not lawfully entitled to, this Court has the duty to impose
on her the penalty prescribed by law: dismissal.
Apart from the above finding, we also note the contradiction between the certification issued by Municipal Treasurer Jose
Avenido stating that respondent had worked as an assessment clerk in his office up to June 3, 1991, and the certification
of Clerk of Court Victor Ginete stating that respondent started working as an interpreter on May 16, 1991. Although
specifically asked by the Court to explain this contradiction, respondent could only state that the certification of the
treasurer is inaccurate because she assumed her position as Assessment Clerk on January 25, 1990 and not on February
1, 1990 as written in the said certification. Respondent, however, failed to explain the gravamen of the inquiry, i.e., that
she was certified to be still connected with the Municipal Government of Panabo on June 3, 1991, notwithstanding her
assumption of her post in the Regional Trial Court as early as May 16, 1991. To the mind of the Court, respondent's inability
to explain this discrepancy is consistent with her failure to satisfactorily explain why she knowingly received and kept a
salary she was not entitled to. Worse, it may be indicative of a conscious design to hold two positions at the same time.
Aside from dishonesty, however, respondent is also guilty of failure to perform her legal obligation to disclose her business
interests. Respondent herself admitted that she "had a stall in the market." The Office of the Court Administrator also
found that she had been receiving rental payments from one Rodolfo Luay for the use of the market stall. That respondent
had a stall in the market was undoubtedly a business interest which should have been reported in her Sworn Statement
of Assets and Liabilities. Her failure to do so exposes her to administrative sanction.
Section 8 of Republic Act No. 6713 provides that it is the "obligation" of an employee to submit a sworn statement, as the
"public has a right to know" the employee's assets, liabilities, net worth and financial and business interests. Section 11 of
the same law prescribes the criminal and administrative penalty for violation of any provision thereof. Paragraph (b) of
Section 11 provides that "(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause
for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him."
In the present case, the failure of respondent to disclose her business interest which she herself admitted is inexcusable
and is a clear violation of Republic Act No. 6713.
The respondent's claim that her contract of lease of a market stall was never implemented because it became the subject
of a civil case, fails to convince us. We agree with the finding of the OCA on respondent's guilt for this separate offense. It
is a finding, which further supports its recommendation for respondent's dismissal, to wit:17
"The case respondent is referring to was filed in 1995. This can be seen from the number of the case which is 95-93. Earlier
than the filing of the case, respondent was already collecting rentals -- as early as February 22, 1991 -- from one Rodolfo
Luay who was operating a business without the necessary license.
Respondent should have, therefore, indicated in her 'Sworn Statement of Assets, Liabilities and Net Worth, Disclosure of
Business Interests and Financial Connections, and Identification of Relatives in the Government Service' for the years 1991,
1992, 1993, 1994 and 1995 that she had a market stall in the Public market of Panabo, Davao.
She admits that she never indicated such in her sworn statements.
As this Office had earlier stated in its Memorandum dated November 10, 1995 filed in connection with the instant
complaint:
'Such non-disclosure is punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand
(P5,000.00) pesos, or both. But even if no criminal prosecution is instituted against the offender, the offender can be
dismissed from the service if the violation is proven. Respondent 201 file speaks for itself.
Furthermore, respondent should have divested herself of her interest in said business within sixty (60) days from her
assumption into (sic) office. She has not. The penalty for non-disclosure of business interests and non-divestment is the
same."' (Citations omitted.)
In her explanation, respondent maintains the position that she has no business interest, implicitly contending that there
is nothing to divulge or divest from. As discussed above, respondent had a business interest. We do not find her
administratively liable, however, for failure to divest herself of the said interest. The requirement for public officers, in
general, to divest themselves of business interests upon assumption of a public office is prompted by the need to avoid
conflict of interests.18 In the absence of any showing that a business interest will result in a conflict of interest, divestment
of the same is unnecessary. In the present case, it seems a bit far-fetched to imagine that there is a conflict of interest
because an Interpreter III of the Regional Trial Court has a stall in the market. A court, generally, is not engaged in the
regulation of a public market, nor does it concern itself with the activities thereof. While respondent may not be compelled
to divest herself of her business interest, she had the legal obligation of divulging it.
WHEREFORE, in conformity with the recommendations of the Office of the Court Administrator, Interpreter III Delsa M.
Flores is hereby DISMISSED from service with FORFEITUREof all retirement benefits and accrued leave credits and
with PREJUDICE to re-employment in any branch or instrumentality of the government, including government-owned or
controlled corporations.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno Vitug, Kapunan, Mendoza, Francisco,
Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.
G.R. No. 111471 September 26, 1994
CITY MAYOR ROGELIO R. DEBULGADO and VICTORIA T. DEBULGADO, petitioners,
vs.
CIVIL SERVICE COMMISSION, respondent.
Marlon P. Ontal for petitioners.

FELICIANO, J.:
Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros Occidental. On 1 October 1992,
petitioner Mayor appointed his wife, petitioner Victoria T. Debulgado, as General Services Officer, that is, as head of the
Office of General Services 1 of the City Government of San Carlos.
Petitioner Victoria was one of three (3) employees of the City Government who were considered for the position of
General Services Officer. Before her promotion in 1992, she had been in the service of the City Government for about
thirty-two (32) years. She joined the City Government on 3 January 1961 as Assistant License Clerk. Through the years,
she rose from the ranks, successively occupying the following positions:
(a) Assistant Chief of the License & Fees Division, from 1 July 1965 to 30 June 1973;
(b) Chief of the License and Fees Division, from 1 July 1973 to 1 January 1981;
(c) Cashier, from 2 January 1981 to 30 June 1989; and
(d) Cashier IV, from 1 July 1989 to 30 September 1992. 2
On 1 October 1992, petitioner Victoria assumed the new post, and commenced discharging the functions, of General
Services Officer of San Carlos City and receiving the regular salary attached to that position.
On 16 December 1992, public respondent Civil Service Commission ("Commission") received a letter 3 from Congressman
Tranquilino B. Carmona of the First District of Negros Occidental, calling attention to the promotional appointment issued
by petitioner Mayor in favor of his wife.
The Commission directed its Regional Office No. 6-Iloilo City to submit a report on the appointment of petitioner Victoria.
From the report submitted by Director Jesse J. Caberoy of the Iloilo City-CSRO No. 6, the Commission found that petitioner
Mayor was the lawful husband of the appointee, petitioner Victoria, the two (2) having been married sometime in 1964.
Director Caberoy also reported that the appointment papers prepared by the Office of the City Mayor of San Carlos were
submitted to the Bacolod City CSC-Field Office on 28 October 1992, and that the appointment was thereafter approved
by Director Purita H. Escobia of that CSC-Field Office, on 18 November 1992.
Acting on the report of Director Caberoy, the Commission, in its Resolution No. 93-1427 dated 13 April 1993, recalled the
approval issued by Director Escobia and disapproved the promotion of petitioner Victoria to the position of General
Services Officer of San Carlos City upon the ground that that promotion violated the statutory prohibition against nepotic
appointments.
On 14 June 1993, petitioner Mayor and petitioner Victoria received a copy of Resolution No. 93-1427 of the
Commission. 4 Petitioners moved for reconsideration, contending that the statutory prohibition against nepotism was not
applicable to the appointment of Victoria as General Services Officer. Petitioners also asserted that the Commission had
deprived petitioner Victoria of her right to due process by unilaterally revoking her appointment. The motion for
reconsideration was denied by the Commission on 21 July 1993.
In this Petition for Certiorari, petitioner Mayor and petitioner Victoria contend that the Commission had gravely abused
its discretion in withdrawing and disapproving petitioner Victoria's promotional appointment. Petitioners assert that
Victoria can no longer be removed from the position of General Services Officer without giving her an opportunity to be
heard and to answer the charged of nepotism.
Petitioner Mayor denies that he had been motivated by personal reasons when he appointed his wife to the new post. He
states that his wife was the most qualified among the candidates for appointment to that position, she having worked for
the City Government for thirty-two (32) years and being highly recommended by the OIC-Treasurer of San Carlos City. 5 It
is also claimed by petitioner Mayor that his choice of his wife for the position was concurred in by the Sangguniang
Panglungsod. 6 He further avers that he had consulted the Field and Regional Officers of the Commission in Bacolod City,
and raised the question of applicability of the prohibition against nepotism to the then proposed promotion of his wife in
one of the seminars conducted by the Commission's Regional Office held in San Carlos City on 21 and 22 September 1992.
According to petitioner Mayor, one Gregorio C. Agdon, a supervising personnel specialist in the Commission's Bacolod
Office, informed him that the promotional appointment was not covered by the prohibition. 7
The basic contention of petitioners is that the prohibition against nepotic appointments is applicable only to original
appointments and not to promotional appointments. They believe that because petitioner Victoria was already in the
service of the City Government before she married petitioner Mayor, the reason behind the prohibition no longer applied
to her promotional appointment. Petitioners also affirm that petitioner Victoria deserves to be promoted to General
Services Officer, considering her long and faithful service to the City Government. 8
The task before this Court is, accordingly, two-fold:
(1) to determine whether a promotional appointment is covered by the legal prohibition against nepotism, or whether
that prohibition applies only to original appointments to the Civil Service; and
(2) to determine whether the Commission had gravely abused its discretion in recalling and disapproving the promotional
appointment given to petitioner Victoria after the Commission, through Director Escobia, had earlier approved that same
appointment, without giving an opportunity to petitioner Victoria to explain her side on the matter.
I
The prohibitory norm against nepotism in the public service is set out in Section 59, Book V of the Revised Administrative
Code of 1987 (also known as E.O. No. 292). Section 59 reads as follows:
Sec. 59. Nepotism — (1) All appointments in 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 operation 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.
The restriction mentioned in subsection (1) shall not be applicable to the case of a member of any family who, after his or
her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in
which event the employment or retention therein of both husband and wife may be allowed.
(3) In order to give immediate effect to these provisions, cases of previous appointment which are in contravention hereof
shall be corrected by transfer and pending such transfer, no promotion or salary increase shall be allowed in favor of the
relative or relatives who were appointed in violation of these provisions. (Emphasis supplied).
Section 6 of Rule XVIII, of the "Omnibus Rules Implementing Book V of Executive Order No. 292 and other Pertinent Civil
Service Laws," issued on 27 December 1991, implementing, among other things, the abovequoted Section 59, provides as
follows:
Sec. 6. No appointments in the national, provincial, city and municipal government or in any branch or instrumentality
thereof, including government-owned or controlled corporations with original charters shall be 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 the appointee.
Unless otherwise specifically provided by law, as used in this Section, the word "relative" and the members of the family
referred to are those related within the third degree either of consanguinity or of affinity.
The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity;
(b) teachers; (c) physicians; (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.
The restriction mentioned in the first paragraph of this Section shall not be applicable to the case of a member of any
family who after his or her appointment to any position in an office or bureau, contracts marriage with someone in the
same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed.
Cases of previous appointment which are in contravention hereof shall be corrected by transfer, and pending such transfer
no promotion or salary increase shall be allowed in favor of the relative or relatives who were appointed in violation of
these provisions. (Emphasis supplied)
It will be noted that the abovequoted Section 6 of Implementing Rule XVIII essentially tracks the provisions of Section 59,
Book V of E.O. No. 292. 9
We turn, therefore, to an analysis of Section 59, Book V of E.O. No. 292, quoted above. The noteworthy fact may be
pointed out, at the outset, that Section 59 as it exists today has been in our statute books in substantially identical form
and language for at least thirty (30) years. 10
A textual examination of Section 59 at once reveals that the prohibition was cast in comprehensive and unqualified terms.
Firstly, it explicitly covers "all appointments", without seeking to make any distinction between differing kinds or types of
appointments. Secondly, Section 59 covers all appointments to the national, provincial, city and municipal government,
as well as any branch or instrumentality thereof and all government owned or controlled corporations. Thirdly, there is a
list of exceptions set out in Section 59 itself, but it is a short list:
(a) persons employed in a confidential capacity;
(b) teachers;
(c) physicians; and
(d) members of the Armed Forces of the Philippines.
The list has not been added to or subtracted from for the past thirty (30) years. The list does not contain words like "and
other similar positions." Thus, the list appears to us to be a closed one, at least closed until lengthened or shortened by
Congress.
Section 59 of Book V, E.O. No. 292 should, of course, be read in connection with the Omnibus Implementing Rules.
Additional light is shed on the issue we here address by some provisions of these Rules. Section 1, Rule V of the Omnibus
Implementing Rules reads as follows:
Sec. 1. All appointments in the career service shall be made only according to merit and fitness to be determined as far as
practicable by competitive examinations.
As used in these Rules, any action denoting movement or progress of personnel in the civil service shall be known
as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment, detail, secondment,
reassignment, demotion and separation. All original appointments and personnel actions shall be in accordance with these
Rules and with other regulations and standards that may be promulgated by the Commission. (Emphasis supplied)
Section 1, Rule VII of the same Rules also bears upon our inquiry:
Sec. 1. The following constitute personnel actions: original appointment, appointment through certification, promotion,
transfer, reinstatement, reemployment, detail, secondment, demotion and separation. (Emphasis supplied)
Under the abovequoted provisions of the Implementing Rules, both an original appointment and a promotion are
particular species of personnel action. The original appointment of a civil service employee and all subsequent personnel
actions undertaken by or in respect of that employee such as promotion, transfer, reinstatement, reemployment, etc.,
must comply with the Implementing Rules including, of course, the prohibition against nepotism in Rule XVIII. To the
extent that all personnel actions occurring after an original appointment, require the issuance of a new appointment to
another position (or to the original position in case of reinstatement), we believe that such appointment must comply
with all applicable rules and prohibitions, including the statutory and regulatory prohibition against nepotism. To limit the
thrust of the prohibition against nepotism to the appointment issued at the time of initial entry into the government
service, and to insulate from that prohibition appointments subsequently issued when personnel actions are thereafter
taken in respect of the same employee, would be basically to render that prohibition, in the words of Laurel V, etc. v. Civil
Service Commission, 11 "meaningless and toothless."
Inquiry into the basic purpose or objective of the prohibition against nepotism also strongly indicates that that prohibition
was intended to be a comprehensive one. Section 1, Book V, E.O. No. 292 sets out the basic policy which pervades all the
provisions of our Civil Service law, including Section 59 thereof:
Sec. 1. Declaration of Policy. — The State shall insure and promote the Constitutional mandate that appointments in the
Civil Service shall be made only according to merit and fitness; . . . (Emphasis supplied)
Put succinctly, that purpose is to ensure that all appointments and other personnel actions in the civil service should be
based on merit and fitness and should never depend on how close or intimate an appointee is to the appointing power. 12
Laurel V, etc. v. Civil Service Commission supra, is instructive in this connection. In that case, petitioner Governor of
Batangas Province appointed or designated his brother, Benjamin Laurel, who had been holding a promotional
appointment as Civil Security Officer, a position classified as "primarily confidential" by the Civil Service, to the position of
Provincial Administrator, a position in the Career Civil Service. This Court held that the appointment or designation as
Acting Provincial Administrator was violative of the prohibition against nepotism, then embodied in Section 49, P.D. No.
807. Moreover, the Court emphatically agreed with the Civil Service Commission that "although what was extended to
Benjamin was merely a designation and not an appointment, . . . the prohibitive mantle on nepotism would include
designation, because what cannot be done directly, cannot be done indirectly:"
We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is nothing
more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion
the impact of its violation. The rule admits of no distinction between appointment and designation. Designation is also
defined as "an appointment or assignment to a particular office"; and "to designate" means "to indicate, select, appoint or
set apart for a purpose of duty." (Black's Law Dictionary, Fifth ed., 402)
xxx xxx xxx
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from
appointment. Reading this section with Section 25 of said decree, career service positions may be filled up only by
appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is
necessarily included in the term appointment, for it precisely accomplishes the same purpose. Moreover, if
a designation is not to be deemed included in the term appointment under Section 49 of P.D. No. 807, then the prohibition
on nepotism would be meaningless and toothless. Any appointing authority may circumvent it by merely designating, and
not appointing, a relative within the prohibited degree to a vacant position in the career service. Indeed, as correctly stated
by public respondent, "what cannot be done directly cannot be done indirectly." 13 (Emphasis partly in the original and
partly supplied; citation omitted)
Thus, the Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and
comprehensive.
One of the contentions of petitioner in the case at bar is that the ratio of the prohibition against nepotism is not applicable
here because petitioner Victoria was already in the government service at the time petitioners were married in 1964. It is
not disputed that the original 1961 appointment of petitioner Victoria as an Assistant License Clerk was not a nepotic
appointment. Indeed, Section 59 itself states, in the 4th paragraph thereof, that the prohibition against nepotism is not
applicable to the case of a member of any family who, after his or her appointment to any position in any office or
bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention
therein of both husband and wife may be allowed. (Emphasis supplied)
The subsequent marriage of one to the other of petitioners did not retroactively convert the original appointment of
petitioner Victoria into a prohibited nepotic one. It is the promotional appointment issued by petitioner Mayor to
petitioner Victoria in 1 October 1982 that is at stake.
Here, the basic argument of petitioners is that to read the prohibition in Section 59, Book V of E.O. No. 292 as applicable
both to original and promotional or subsequent appointments, would be to deprive the government of the services of
loyal and faithful employees who would thereby be penalized simply because the appointing or recommending official
happens to be related to the employees within the third degree of consanguinity or affinity.
A major difficulty with the petitioners' argument is that it tends to prove too much. For the appointee, whether in an
original or a promotion appointment, may in fact be quite loyal and efficient and hard-working; yet that circumstance will
not prevent the application of the prohibition certainly in respect of the original appointment. The Court is not unaware
of the difficulties that the comprehensive prohibition against nepotism would impose upon petitioner Victoria and others
who maybe in the same position. It is essential to stress, however, that the prohibition applies quite without regard to the
actual merits of the proposed appointee and to the good intentions of the appointing or recommending authority, and
that the prohibition against nepotism in appointments whether original or promotional, is not intended by the legislative
authority to penalize faithful service.
The purpose of Section 59 which shines through the comprehensive and unqualified language in which it was cast and has
remained for decades, is precisely to take out of the discretion of the appointing and recommending authority the matter
of appointing or recommending for appointment a relative. In other words, Section 59 insures the objectivity of the
appointing or recommending official by preventing that objectivity from being in fact tested. The importance of this
statutory objective is difficult to overstress in the culture in which we live and work in the Philippines, where family bonds
remain, in general, compelling and cohesive.
The conclusion we reach is that Section 59, Book V, E.O. No. 292 means exactly what it says in plain and ordinary language:
it refers to "all appointments" whether original or promotional in nature. The public policy embodied in Section 59 is
clearly fundamental in importance, and the Court has neither authority nor inclination to dilute that important public
policy by introducing a qualification here or a distinction there.
It follows that the promotional appointment of petitioner Victoria by her husband, petitioner Mayor, falls within the
prohibited class of appointments: the prohibited relationship between the appointing authority (petitioner Mayor) and
the appointee (wife Victoria) existed at the time the promotional appointment was issued. It is scarcely necessary to add
that the reasons which may have moved petitioner Mayor to issue the prohibited appointment are, as a matter of law,
not relevant in this connection. 14
II
We turn to the second issue where petitioners contend that when the promotional appointment of petitioner Victoria
was approved by Director Escobia, CSC Field Office, Bacolod City, that appointment become complete. When petitioner
Victoria took her oath of office and commenced the discharge of the duties of a General Services Officer, she acquired a
vested right to that position and cannot, according to petitioners, be removed from that position without due process of
law.
This argument misconceives the nature of the action taken by the respondent Commission. That action was not the
imposition of an administrative disciplinary measure upon petitioner Victoria, nor upon petitioner Mayor. There were no
administrative charges in respect of which petitioner Victoria would have been entitled to notice and hearing. The
Commission, in approving or disapproving an appointment, only examines the conformity of the appointment with
applicable provisions of law and whether the appointee possesses all the minimum qualifications and none of the
disqualifications. At all events, as the Solicitor General has noted, petitioner Victoria was afforded an opportunity to be
heard when she filed a motion for reconsideration with the Commission and there challenged the disapproval by the
Commission.
The action of the Commission was, in other words, taken in implementation of Section 59, Book V, E.O. No. 292 and the
relevant Implementing Regulations. Because the promotional appointment in favor of petitioner Victoria was a violation
of Section 59, it was null and void as being contra legem. Section 9 of Rule V of the Omnibus Implementing Regulations
sets out the principal legal consequence of an appointment issued in disregard of the statutory prohibition:
Sec. 9. An appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall
remain in force and effect until disapproved by the Commission. However, an appointment may be void from the
beginning due to fraud on the part of the appointee or because it was issued in violation of law. (Emphasis supplied)
A void appointment cannot give rise to security of tenure on the part of the holder of such appointment.
The Commission is empowered to take appropriate action on all appointments and other personnel actions, e.g.,
promotions. 15 Such power includes the authority to recall an appointment initially approved in disregard of applicable
provisions of Civil Service law and regulations. Section 20 of Rule VI of the Omnibus Implementing Rules makes this clear:
Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds:
(a) Non-compliance with the procedures/criteria provided in the agency's Merit Promotion Plan;
(b) Failure to pass through the agency's Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and employees relative to promotion; or
(d) Violation of other existing civil service law, rules and regulations. (Emphasis supplied).
The recall or withdrawal by the Commission of the approval which had been issued by one of its Field Officers, Director
Escobia, was accordingly lawful and appropriate, the promotional appointment of petitioner Victoria being void "from the
beginning." The approval issued by Director Escobia did not, as it could not, cure the intrinsic vice of that appointment.
We conclude, in respect of the second issue, that petitioners have not shown any grave abuse of discretion, amounting to
lack of excess of jurisdiction on the part of respondent Commission.
Petitioners have also complained that the letter of Congressman Carmona which had precipitated action on the part of
respondent Commission, was not a verified letter. They contend that the Commission could not or should not have acted
upon the charges raised in that letter.
We are not aware of any law or regulation requiring the letter written by the Congressman to be subscribed under oath
before the Commission could act thereon. Under its own rules and regulations, the Commission may
review motu proprio personnel actions involving the position of a Division Chief or above, such as the position of General
Services Officer. 16 We hold that the respondent Commission had authority, indeed the duty, to recall on its own initiative
the erroneous initial approval of the promotional appointment extended to petitioner Victoria, and to review the same de
novo.
WHEREFORE, for all the foregoing, the Petition for Certiorari must be DISMISSED for lack of merit. No pronouncement as
to costs.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza,
JJ., concur.
Bidin, J., is on leave.

[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 February 25, 1997, respondent Dacoycoy filed a motion for reconsideration; [4] however, on May 20, 1997, the Civil
Service Commission denied the motion.[5]
On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special civil action 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.
To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority
in the appointment of his two sons. Clearly, he is guilty of nepotism.
At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an
adverse decision of the appellate court in an administrative civil service disciplinary case. There is no question that
respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to
him.[10] He was the respondent official meted out the penalty of dismissal from the service. On appeal to the Court of
Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as
public respondent[11] as the government agency tasked with the duty to enforce the constitutional and statutory provisions
on the civil service.[12]
Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty
of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the
respondent, who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness
for the government.[13] Consequently, the Civil Service Commission has become the party adversely affected by such
ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the
Court of Appeals to the Supreme Court.[14] By this ruling, we now expressly abandon and overrule extant jurisprudence
that the phrase party adversely affected by the decision refers to the government employee against whom the
administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank
or salary, transfer, removal or dismissal from office[15] and not included are cases where the penalty imposed is suspension
for not more 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]
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]
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 CA-G.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.
Davide, Jr., C.J., Bellosillo, Kapunan, Panganiban, Purisima, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
Romero, J., please see dissenting opinion.
Melo, J., concurs and dissent in separate opinion.
Puno, J., please see concurring opinion.
Vitug, and Quisumbing, JJ., join the concurring and dissenting opinion of Justice Melo.
Mendoza, J., join the concurring opinion of Justice Puno.
 DANTE V. LIBAN, REYNALDO M. BERNARDO G. R. No. 175352
and SALVADOR M. VIARI,
Petitioners, Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
RICHARD J. GORDON, PEREZ,
Respondent. MENDOZA, and
SERENO, JJ.
PHILIPPINE NATIONAL RED CROSS,
Intervenor. Promulgated:

January 18, 2011

x--------------------------------------------------x

RESOLUTION

LEONARDO-DE CASTRO, J.:

This resolves the Motion for Clarification and/or for Reconsideration[1] filed on August 10, 2009 by respondent Richard
J. Gordon (respondent) of the Decisionpromulgated by this Court on July 15, 2009 (the Decision), the Motion for Partial
Reconsideration[2] filed on August 27, 2009 by movant-intervenor Philippine National Red Cross (PNRC), and the
latters Manifestation and Motion to Admit Attached Position Paper[3] filed on December 23, 2009.

In the Decision,[4] the Court held that respondent did not forfeit his seat in the Senate when he accepted the chairmanship
of the PNRC Board of Governors, as the office of the PNRC Chairman is not a government office or an office in a
government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987
Constitution.[5] The Decision, however, further declared void the PNRC Charter insofar as it creates the PNRC as a private
corporation and consequently ruled that the PNRC should incorporate under the Corporation Code and register with the
Securities and Exchange Commission if it wants to be a private corporation.[6] The dispositive portion of the Decision reads
as follows:
WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a government office
or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of
the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the
Philippine National Red Cross, or Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID
because they create the PNRC as a private corporation or grant it corporate powers.[7]
In his Motion for Clarification and/or for Reconsideration, respondent raises the following grounds: (1) as the issue of
constitutionality of Republic Act (R.A.) No. 95 was not raised by the parties, the Court went beyond the case in deciding
such issue; and (2) as the Court decided that Petitioners did not have standing to file the instant Petition, the
pronouncement of the Court on the validity of R.A. No. 95 should be considered obiter.[8]

Respondent argues that the validity of R.A. No. 95 was a non-issue; therefore, it was unnecessary for the Court to decide
on that question. Respondent cites Laurel v. Garcia,[9] wherein the Court said that it will not pass upon a constitutional
question although properly presented by the record if the case can be disposed of on some other ground and goes on to
claim that since this Court, in the Decision, disposed of the petition on some other ground, i.e., lack of standing of
petitioners, there was no need for it to delve into the validity of R.A. No. 95, and the rest of the judgment should be
deemed obiter.

In its Motion for Partial Reconsideration, PNRC prays that the Court sustain the constitutionality of its Charter on the
following grounds:

A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL REPUBLIC ACT NO. 95 AS AMENDED DEPRIVED
INTERVENOR PNRC OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS.

1. INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT CONTROVERSY.

2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS AMENDED WAS NEVER AN ISSUE IN THIS CASE.

B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE NO. 1264 AND NOT REPUBLIC ACT NO. 95. PRESIDENTIAL
DECREE NO. 1264 WAS NOT A CREATION OF CONGRESS.

C. PNRCS STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS OWN. WHILE IT IS PERFORMING HUMANITARIAN FUNCTIONS
AS AN AUXILIARY TO GOVERNMENT, IT IS A NEUTRAL ENTITY SEPARATE AND INDEPENDENT OF GOVERNMENT CONTROL,
YET IT DOES NOT QUALIFY AS STRICTLY PRIVATE IN CHARACTER.

In his Comment and Manifestation[10] filed on November 9, 2009, respondent manifests: (1) that he agrees with the
position taken by the PNRC in its Motion for Partial Reconsideration dated August 27, 2009; and (2) as of the writing of
said Comment and Manifestation, there was pending before the Congress of the Philippines a proposed bill entitled An
Act Recognizing the PNRC as an Independent, Autonomous, Non-Governmental Organization Auxiliary to the Authorities
of the Republic of the Philippines in the Humanitarian Field, to be Known as The Philippine Red Cross.[11]

After a thorough study of the arguments and points raised by the respondent as well as those of movant-intervenor in
their respective motions, we have reconsidered our pronouncements in our Decision dated July 15, 2009 with regard to
the nature of the PNRC and the constitutionality of some provisions of the PNRC Charter, R.A. No. 95, as amended.

As correctly pointed out in respondents Motion, the issue of constitutionality of R.A. No. 95 was not raised by the parties,
and was not among the issues defined in the body of the Decision; thus, it was not the very lis mota of the case. We have
reiterated the rule as to when the Court will consider the issue of constitutionality in Alvarez v. PICOP Resources,
Inc.,[12] thus:
This Court will not touch the issue of unconstitutionality unless it is the very lis mota. It is a well-established rule that a
court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such
question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the
court may [rest] its judgment, that course will be adopted and the constitutional question will be left for consideration
until such question will be unavoidable.[13]

Under the rule quoted above, therefore, this Court should not have declared void certain sections of R.A. No. 95, as
amended by Presidential Decree (P.D.) Nos. 1264 and 1643, the PNRC Charter. Instead, the Court should have exercised
judicial restraint on this matter, especially since there was some other ground upon which the Court could have based its
judgment. Furthermore, the PNRC, the entity most adversely affected by this declaration of unconstitutionality, which was
not even originally a party to this case, was being compelled, as a consequence of the Decision, to suddenly reorganize
and incorporate under the Corporation Code, after more than sixty (60) years of existence in this country.

Its existence as a chartered corporation remained unchallenged on ground of unconstitutionality notwithstanding

that R.A. No. 95 was enacted on March 22, 1947 during the effectivity of the 1935 Constitution, which provided for a
proscription against the creation of private corporations by special law, to wit:

SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations, unless such corporations are owned and controlled by the Government or any subdivision or instrumentality
thereof. (Art. XIV, 1935 Constitution.)

Similar provisions are found in Article XIV, Section 4 of the 1973 Constitution and Article XII, Section 16 of the 1987
Constitution. The latter reads:

SECTION 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations. Government-owned or controlled corporations may be created or established by special charters in the
interest of the common good and subject to the test of economic viability.

Since its enactment, the PNRC Charter was amended several times, particularly on June 11, 1953, August 16, 1971,
December 15, 1977, and October 1, 1979, by virtue of R.A. No. 855, R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643,
respectively. The passage of several laws relating to the PNRCs corporate existence notwithstanding the effectivity of the
constitutional proscription on the creation of private corporations by law, is a recognition that the PNRC is not strictly in
the nature of a private corporation contemplated by the aforesaid constitutional ban.

A closer look at the nature of the PNRC would show that there is none like it not just in terms of structure, but also in
terms of history, public service and official status accorded to it by the State and the international community. There is
merit in PNRCs contention that its structure is sui generis.

The PNRC succeeded the chapter of the American Red Cross which was in existence in the Philippines since 1917. It was
created by an Act of Congress after the Republic of the Philippines became an independent nation on July 6, 1946 and
proclaimed on February 14, 1947 its adherence to the Convention of Geneva of July 29, 1929 for the Amelioration of the
Condition of the Wounded and Sick of Armies in the Field (the Geneva Red Cross Convention). By that action the
Philippines indicated its desire to participate with the nations of the world in mitigating the suffering caused by war and
to establish in the Philippines a voluntary organization for that purpose and like other volunteer organizations established
in other countries which have ratified the Geneva Conventions, to promote the health and welfare of the people in peace
and in war.[14]
The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and 6373, and further amended by P.D. Nos. 1264 and 1643,
show the historical background and legal basis of the creation of the PNRC by legislative fiat, as a voluntary organization
impressed with public interest. Pertinently R.A. No. 95, as amended by P.D. 1264, provides:

WHEREAS, during the meeting in Geneva, Switzerland, on 22 August 1894, the nations of the world unanimously agreed
to diminish within their power the evils inherent in war;

WHEREAS, more than one hundred forty nations of the world have ratified or adhered to the Geneva Conventions of
August 12, 1949 for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field and at Sea,
The Prisoners of War, and The Civilian Population in Time of War referred to in this Charter as the Geneva Conventions;

WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946, and proclaimed on February
14, 1947 its adherence to the Geneva Conventions of 1929, and by the action, indicated its desire to participate with
the nations of the world in mitigating the suffering caused by war and to establish in the Philippines a voluntary
organization for that purpose as contemplated by the Geneva Conventions;

WHEREAS, there existed in the Philippines since 1917 a chapter of the American National Red Cross which was terminated
in view of the independence of the Philippines; and

WHEREAS, the volunteer organizations established in other countries which have ratified or adhered to the Geneva
Conventions assist in promoting the health and welfare of their people in peace and in war, and through their mutual
assistance and cooperation directly and through their international organizations promote better understanding and
sympathy among the people of the world;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the
Constitution as Commander-in-Chief of all the Armed Forces of the Philippines and pursuant to Proclamation No. 1081
dated September 21, 1972, and General Order No. 1 dated September 22, 1972, do hereby decree and order that Republic
Act No. 95, Charter of the Philippine National Red Cross (PNRC) as amended by Republic Acts No. 855 and 6373, be further
amended as follows:

Section 1. There is hereby created in the Republic of the Philippines a body corporate and politic to be the voluntary
organization officially designated to assist the Republic of the Philippines in discharging the obligations set forth in the
Geneva Conventions and to perform such other duties as are inherent upon a national Red Cross Society. The national
headquarters of this Corporation shall be located in Metropolitan Manila. (Emphasis supplied.)

The significant public service rendered by the PNRC can be gleaned from Section 3 of its Charter, which provides:

Section 3. That the purposes of this Corporation shall be as follows:

(a) To provide volunteer aid to the sick and wounded of armed forces in time of war, in accordance with the spirit of and
under the conditions prescribed by the Geneva Conventions to which the Republic of the Philippines proclaimed its
adherence;

(b) For the purposes mentioned in the preceding sub-section, to perform all duties devolving upon the Corporation as a
result of the adherence of the Republic of the Philippines to the said Convention;
(c) To act in matters of voluntary relief and in accordance with the authorities of the armed forces as a medium of
communication between people of the Republic of the Philippines and their Armed Forces, in time of peace and in time
of war, and to act in such matters between similar national societies of other governments and the Governments and
people and the Armed Forces of the Republic of the Philippines;

(d) To establish and maintain a system of national and international relief in time of peace and in time of war and apply
the same in meeting and emergency needs caused by typhoons, flood, fires, earthquakes, and other natural disasters and
to devise and carry on measures for minimizing the suffering caused by such disasters;

(e) To devise and promote such other services in time of peace and in time of war as may be found desirable in improving
the health, safety and welfare of the Filipino people;

(f) To devise such means as to make every citizen and/or resident of the Philippines a member of the Red Cross.

The PNRC is one of the National Red Cross and Red Crescent Societies, which, together with the International Committee
of the Red Cross (ICRC) and the IFRC and RCS, make up the International Red Cross and Red Crescent Movement (the
Movement). They constitute a worldwide humanitarian movement, whose mission is:

[T]o prevent and alleviate human suffering wherever it may be found, to protect life and health and ensure respect for
the human being, in particular in times of armed conflict and other emergencies, to work for the prevention of disease
and for the promotion of health and social welfare, to encourage voluntary service and a constant readiness to give help
by the members of the Movement, and a universal sense of solidarity towards all those in need of its protection and
assistance.[15]

The PNRC works closely with the ICRC and has been involved in humanitarian activities in the Philippines since
1982. Among others, these activities in the country include:

1. Giving protection and assistance to civilians displaced or otherwise affected by armed clashes between the
government and armed opposition groups, primarily in Mindanao;
2. Working to minimize the effects of armed hostilities and violence on the population;
3. Visiting detainees; and
4. Promoting awareness of international humanitarian law in the public and private sectors.[16]

National Societies such as the PNRC act as auxiliaries to the public authorities of their own countries in the humanitarian
field and provide a range of services including disaster relief and health and social programmes.

The International Federation of Red Cross (IFRC) and Red Crescent Societies (RCS) Position Paper,[17] submitted by the
PNRC, is instructive with regard to the elements of the specific nature of the National Societies such as the PNRC, to wit:

National Societies, such as the Philippine National Red Cross and its sister Red Cross and Red Crescent Societies, have
certain specificities deriving from the 1949 Geneva Convention and the Statutes of the International Red Cross and Red
Crescent Movement (the Movement). They are also guided by the seven Fundamental Principles of the Red Cross and Red
Crescent Movement: Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity and Universality.

A National Society partakes of a sui generis character. It is a protected component of the Red Cross movement under
Articles 24 and 26 of the First Geneva Convention, especially in times of armed conflict. These provisions require that the
staff of a National Society shall be respected and protected in all circumstances. Such protection is not ordinarily afforded
by an international treaty to ordinary private entities or even non-governmental organisations (NGOs). This sui
generis character is also emphasized by the Fourth Geneva Convention which holds that an Occupying Power cannot
require any change in the personnel or structure of a National Society. National societies are therefore organizations that
are directly regulated by international humanitarian law, in contrast to other ordinary private entities, including NGOs.

xxxx

In addition, National Societies are not only officially recognized by their public authorities as voluntary aid societies,
auxiliary to the public authorities in the humanitarian field, but also benefit from recognition at the International level. This
is considered to be an element distinguishing National Societies from other organisations (mainly NGOs) and other forms
of humanitarian response.

x x x. No other organisation belongs to a world-wide Movement in which all Societies have equal status and share equal
responsibilities and duties in helping each other. This is considered to be the essence of the Fundamental Principle of
Universality.

Furthermore, the National Societies are considered to be auxiliaries to the public authorities in the humanitarian field. x
x x.

The auxiliary status of [a] Red Cross Society means that it is at one and the same time a private institution and a public
service organization because the very nature of its work implies cooperation with the authorities, a link with the
State. In carrying out their major functions, Red Cross Societies give their humanitarian support to official bodies, in
general having larger resources than the Societies, working towards comparable ends in a given sector.

x x x No other organization has a duty to be its governments humanitarian partner while remaining
independent.[18] (Emphases ours.)

It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has remained valid and effective from the time
of its enactment in March 22, 1947 under the 1935 Constitution and during the effectivity of the 1973 Constitution and
the 1987 Constitution.

The PNRC Charter and its amendatory laws have not been questioned or challenged on constitutional grounds, not even
in this case before the Court now.

In the Decision, the Court, citing Feliciano v. Commission on Audit,[19] explained that the purpose of the constitutional
provision prohibiting Congress from creating private corporations was to prevent the granting of special privileges to
certain individuals, families, or groups, which were denied to other groups. Based on the above discussion, it can be seen
that the PNRC Charter does not come within the spirit of this constitutional provision, as it does not grant special privileges
to a particular individual, family, or group, but creates an entity that strives to serve the common good.

Furthermore, a strict and mechanical interpretation of Article XII, Section 16 of the 1987 Constitution will hinder the State
in adopting measures that will serve the public good or national interest. It should be noted that a special law, R.A. No.
9520, the Philippine Cooperative Code of 2008, and not the general corporation code, vests corporate power and
capacities upon cooperatives which are private corporations, in order to implement the States avowed policy.

In the Decision of July 15, 2009, the Court recognized the public service rendered by the PNRC as the governments partner
in the observance of its international commitments, to wit:
The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose mission is to bring timely, effective,
and compassionate humanitarian assistance for the most vulnerable without consideration of nationality, race, religion,
gender, social status, or political affiliation. The PNRC provides six major services: Blood Services, Disaster Management,
Safety Services, Community Health and Nursing, Social Services and Voluntary Service.

The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC as a voluntary organization
for the purpose contemplated in the Geneva Convention of 27 July 1929. x x x.[20] (Citations omitted.)

So must this Court recognize too the countrys adherence to the Geneva Convention and respect the unique status of
the PNRC in consonance with its treaty obligations. The Geneva Convention has the force and effect of law.[21] Under the
Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the
land.[22] This constitutional provision must be reconciled and harmonized with Article XII, Section 16 of the Constitution,
instead of using the latter to negate the former.

By requiring the PNRC to organize under the Corporation Code just like any other private corporation, the Decision of July
15, 2009 lost sight of the PNRCs special status under international humanitarian law and as an auxiliary of the State,
designated to assist it in discharging its obligations under the Geneva Conventions. Although the PNRC is called to be
independent under its Fundamental Principles, it interprets such independence as inclusive of its duty to be the
governments humanitarian partner. To be recognized in the International Committee, the PNRC must have an
autonomous status, and carry out its humanitarian mission in a neutral and impartial manner.

However, in accordance with the Fundamental Principle of Voluntary Service of National Societies of the Movement, the
PNRC must be distinguished from private and profit-making entities. It is the main characteristic of National Societies that
they are not inspired by the desire for financial gain but by individual commitment and devotion to a humanitarian purpose
freely chosen or accepted as part of the service that National Societies through its volunteers and/or members render to
the Community.[23]

The PNRC, as a National Society of the International Red Cross and Red Crescent Movement, can neither be classified as
an instrumentality of the State, so as not to lose its character of neutrality as well as its independence, nor strictly as a
private corporation since it is regulated by international humanitarian law and is treated as an auxiliary of the State.[24]

Based on the above, the sui generis status of the PNRC is now sufficiently established. Although it is neither a subdivision,
agency, or instrumentality of the government, nor a government-owned or -controlled corporation or a subsidiary thereof,
as succinctly explained in the Decision of July 15, 2009, so much so that respondent, under the Decision, was correctly
allowed to hold his position as Chairman thereof concurrently while he served as a Senator, such a conclusion
does not ipso facto imply that the PNRC is a private corporation within the contemplation of the provision of the
Constitution, that must be organized under the Corporation Code. As correctly mentioned by Justice Roberto A. Abad,
the sui generis character of PNRC requires us to approach controversies involving the PNRC on a case-to-case basis.

In sum, the PNRC enjoys a special status as an important ally and auxiliary of the government in the humanitarian field in
accordance with its commitments under international law. This Court cannot all of a sudden refuse to recognize its
existence, especially since the issue of the constitutionality of the PNRC Charter was never raised by the parties. It bears
emphasizing that the PNRC has responded to almost all national disasters since 1947, and is widely known to provide a
substantial portion of the countrys blood requirements. Its humanitarian work is unparalleled. The Court should not shake
its existence to the core in an untimely and drastic manner that would not only have negative consequences to those who
depend on it in times of disaster and armed hostilities but also have adverse effects on the image of the Philippines in the
international community. The sections of the PNRC Charter that were declared void must therefore stay.
WHEREFORE, premises considered, respondent Richard J. Gordons Motion for Clarification and/or for
Reconsideration and movant-intervenor PNRCs Motion for Partial Reconsideration of the Decision in G.R. No.
175352 dated July 15, 2009 are GRANTED. The constitutionality of R.A. No. 95, as amended, the charter of the Philippine
National Red Cross, was not raised by the parties as an issue and should not have been passed upon by this Court. The
structure of the PNRC is sui generis being neither strictly private nor public in nature. R.A. No. 95 remains valid and
constitutional in its entirety. The dispositive portion of the Decision should therefore be MODIFIED by deleting the second
sentence, to now read as follows:

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a government office
or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of
the 1987 Constitution.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

No part
RENATO C. CORONA
Chief Justice

See dissenting opinion I join the dissent of J. Carpio

ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice
 I join the dissent of J. Carpio
ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

See my concurring opinion

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice

I join J. Carpio in his dissent

JOSE PORTUGAL PEREZ JOSE C. MENDOZA
Associate Justice Associate Justice

I agree with the dissent of J. Carpio

MARIA LOURDES P. A. SERENO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.
 RENATO C. CORONA
Chief Justice

G.R. NO. L-69137 August 5, 1986

FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.
Jose Batiquin for petitioner-appellant.
Fausto F. Tugade for private respondent-appellee.

CRUZ, J.:
Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of this case
may be briefly narrated as follows:
The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on
February 18, 1983. 1 The appointment was described as permanent" but the Civil Service Commission approved it as
"temporary," subject to the final action taken in the protest filed by the private respondent and another employee, and
provided "there (was) no pending administrative case against the appointee, no pending protest against the appointment
nor any decision by competent authority that will adversely affect the approval of the appointment." 2 On March 22, 1984,
after protracted hearings the legality of which does not have to be decided here, the Civil Service Commission found the
private respondent better qualified than the petitioner for the contested position and, accordingly, directed "that Felicula
Tuozo be appointed to the position of Administrative Officer 11 in the Administrative Division, Cebu City, in place of
Felimon Luego whose appointment as Administrative Officer II is hereby revoked."3 The private respondent was so
appointed on June 28, 1984, by the new mayor, Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent
appointment, is now before us to question that order and the private respondent's title.
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?
The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the instant
case because his appointment was temporary and therefore could be withdrawn at will, with or without cause. Having
accepted such an appointment, it is argued, the petitioner waived his security of tenure and consequently ran the risk of
an abrupt separation from his office without violation of the Constitution.5
While the principle is correct, and we have applied it many times,6 it is not correctly applied in this case. The argument
begs the question. The appointment of the petitioner was not temporary but permanent and was therefore protected by
Constitution. The appointing authority indicated that it was permanent, as he had the right to do so, and it was not for
the respondent Civil Service Commission to reverse him and call it temporary.
The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was
clearly described as "Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What
was temporary was the approval of the appointment, not the appointment it sell And what made the approval temporary
was the fact that it was made to depend on the condition specified therein and on the verification of the qualifications of
the appointee to the position.
The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the
appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements
of the Civil Service Law. When the appointee is qualified and authorizing the other legal requirements are satisfied, the
Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended lies in the official vested by law with
the appointing power and not the Civil Service Commission. The Commissioner of Civil Service is not empowered to
determine the kind or nature of the appointment extended by the appointing officer. When the appointee is qualified, as
in this case, the Commissioner of Civil Service has no choice but to attest to the appointment. Under the Civil Service Law,
Presidential Decree No. 807, the Commissioner is not authorized to curtail the discretion of the appointing official on the
nature or kind of the appointment to be extended. 8
Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee is qualified for the
position to which he has been named. As we have repeatedly held, such attestation is required of the Commissioner of
Civil Service merely as a check to assure compliance with Civil Service Laws.9
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.
It is different where the Constitution or the law subjects the appointment to the approval of another officer or body, like
the Commission on Appointments under 1935 Constitution. 10 Appointments made by the President of the Philippines had
to be confirmed by that body and could not be issued or were invalidated without such confirmation. In fact, confirmation
by the Commission on Appointments was then considered part of the appointing process, which was held complete only
after such confirmation. 11
Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to refuse
to concur with it even if the President's choice possessed all the qualifications prescribed by law. No similar arrangement
is provided for in the Civil Service Decree. On the contrary, the Civil Service Commission is limited only to the non-
discretionary authority of determining whether or not the person appointed meets all the required conditions laid down
by the law.
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 shag 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 on--or as the Decree says, "approves" or "disapproves" an
appointment made by the proper authorities.
Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were
qualified for the position in controversy. 12 That recognition alone rendered it functus officio in 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.
In preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V, Section 9,
of Civil Service Rules on Personnel Actions and Policies, which provides that "whenever there are two or more employees
who are next-in-rank, preference shall be given to the employee who is most competent and qualified and who has the
appropriate civil service eligibility." This rule is inapplicable, however, because neither of the claimants is next in rank.
Moreover, the next-in-rank rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer of
present employees, reinstatement, re-employment, or appointment of outsiders who have the appropriate eligibility. 13
There are apparently no political overtones in this case, which looks to be an honest contention between two public
functionaries who each sincerely claims to be entitled to the position in dispute. This is gratifying for politics should never
be permitted to interfere in the apolitical organization of the Civil Service, which is supposed to serve all the people
regardless of partisan considerations. This political detachment will be impaired if the security of tenure clause in the
Constitution is emasculated and appointments in the Civil Service are revoked and changed at will to suit the motivations
and even the fancies of whatever party may be in power.
WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside, and the
petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated
February 18, 1983. No costs.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur.

G.R. No. L-26785 May 23, 1991

DEOGRACIAS A. REGIS, JR., petitioner,
vs.
SERGIO OSMEÑA, JR., VICENTE PACIFICO, CITY OF CEBU, CITY COUNCIL OF CEBU, CITY TREASURER AND CITY
AUDITOR, respondents.
Basilio E. Duaban for petitioner.

DAVIDE, JR., J.:

This is an appeal from the Decision1 of the Court of First Instance of Cebu dated 28 December 1965 in Civil Case No. R-
8778, dismissing the petition for Mandamus filed on 9 March 1965 by petitioner to compel respondents to reinstate him
to his former position as driver, Motorized Section of the Cebu City Police Department (CPD), with back salaries from the
date of his ouster until reinstatement, and to pay him moral and exemplary damages and attorney's fees.2
The material operative facts in this case, as admitted by the parties in the stipulation of facts they submitted in the court
below and as established by the other evidence introduced by them pursuant to the reservations they made in the
stipulation of facts are as follows:
I. Per stipulation of facts:3
1. On January 8, 1958, petitioner was appointed by then Cebu City Mayor, Ramon Duterte, as driver, Motorized Division
of the Cebu Police Department, with a yearly compensation of P1,440.00, as shown by a true copy of his appointment
hereto attached and marked Annex "A";
2. On January 8, 1960, petitioner was issued another appointment as "driver" of the Cebu Police Department, at an
increased yearly compensation at P1,560.00, a true copy of which is hereto attached and marked Annex "A-1";
3 On December 21, 1961, petitioner was issued another appointment by then Cebu City Mayor Carlos J. Cuizon as "Driver,
Civilian Employee" of the Cebu Police Department at the increased yearly compensation of P1,920.00 a true copy of which
is hereto attached and marked as Annex "A-2";
4. On November 7, 1963, petitioner was extended an appointment as "driver (Radio Patrol) Civilian Employee" of the Cebu
Police Department at the increased yearly compensation of P2,040.00, true copy of which is marked as Annex "A-3";
5 On April 14, 1964, petitioner was removed from his position in the Cebu Police Department without prior investigation
or hearing, the termination having been made in a letter of dismissal quoted as follows:
REPUBLIC OF THE PHILIPPINES
CITY OF CEBU
Office of the Mayor

April 14, 1964

Mr. Deogracias A. Regis, Jr.
Driver, Cebu Police Department
Cebu City
Sir:
There being no more need for your service as Driver in the Cebu Police Department, your provisional appointment thereto
is hereby terminated effective April 16, 1964. Please turn over any government property that may have been issued to
you to the proper property custodian and have yourself cleared of any accountability during the period of your service.
Respectfully,
By order of the Mayor:
(SGD.) Vicente V. Pacifico Secretary to the Mayor
6. Petitioner is a civil service eligible, having passed the patrolman and/or detective (qualified) civil service examination
on July 20, 1963 with a rating of 76.85% as shown in the attached copy of "Report of Ratings" marked Annex "B";
7. Petitioner is a fourth year student in the College of Liberal Arts in the University of the Visayas as shown by the attached
certification marked Annex "C";
8. The position of the petitioner, after his removal, was filled up by the respondent City Mayor with the appointment of
Eduardo Gabiana, a non-civil service eligible as shown in his appointment hereto attached and marked Annex "D";
9. On August 20, 1964, after his removal, the petitioner addressed similarly worded letters to the President of the
Philippines and the Civil Service Commissioner, hereto attached as Annexes "E" and "E-1", protesting and appealing his
unlawful removal and demanding his reinstatement. Under date of September 4, 1964, the Executive Secretary to the
President indorsed the above-mentioned letter to the Commissioner of Civil Service, as shown in the first indorsement
hereto attached as Annex "E-2". Since the filing of the instant action, the petitioner has not been afforded the relief of
reinstatement by either the Office of the President of the Philippines or by the Civil Service Commissioner.
Parties, however, will submit evidence to establish facts not herein stipulated.
Cebu City, August 20, 1965.
(SGD.) FERNANDO S. RUIZ (SGD.) JOSE BATIQUIN
(T) FERNANDO S. RUIZ (T) JOSE BATIQUIN
Attorney for the Assistant City Fiscal
Petitioner Counsel for the
2nd Floor, Aboitiz Respondents
Building Cebu City
Magallanes corner
Jakosalem
Cebu City
II. Per additional evidence formally adduced during the hearing:
10. Petitioner received his civil service eligibility for patrolman-detective on 8 March 1964, a photostatic of which was
filed, for record purposes, with the clerk in charge of the record section of the CPD on 12 March 1964 (Exhs. "F", "F-1");
his efficiency rating is 88%, the highest among the drivers of the CPD he is the only civil service eligible among the drivers
in the CPD; after his ouster, the City of Cebu created positions of drivers; and he attributed his ouster to politics, alleging
that he was being suspected as a supporter of the faction of then Congressman Durano, the political rival of respondent
Mayor Osmeña;4and
11. The records of the Regional Office of the Civil Service Commission in Cebu City do not show that petitioner possesses
any civil service eligibility at the time he was appointed as driver.5
This Court further observes that the actions of the Civil Service Commission on the appointments of petitioner admitted
in the Stipulation of Facts and attached thereto as Annexes "A", "A-1", "A-2" and "A-3" were as follows:
1. Appointment dated 8 January 1958 — Noted as temporary pending receipt of the required medical certificate, subject
to availability of funds and provided that there is no pending administrative or criminal case against appointee and that
the separation of the former incumbent is in order;
2. Appointment dated 8 January 1960 — Approved under Section 24(c) or R.A. No. 2260 as an exception to Section 256 of
the Revised Administrative Code, and subject to availability of funds;
3. Appointment dated 21 December 1961 — Approved under Section 24(c) of R.A. No. 2260, subject to availability of funds
and as exceptional case under Sec. 256 of the Revised Administrative Code, provided there is no pending administrative
or criminal case against the appointee and provided that his efficiency rating for the semester ending 6-30-61 is not below
85%; and
4. Appointment dated 7 November 1963—Approved under Section 24(c) of R.A. No. 2260, subject to availability of funds
and subject to Section 20 of R.A. No. 2260, provided there is no pending administrative or criminal case against the
appointee.
The last three appointments were for salary adjustments.
In its Decision of 28 December 1965, the court below dismissed the petition on the ground that petitioner's questioned
appointment was temporary in nature and, therefore, terminable at the pleasure of the appointing power. Expounding
on this, it says:
xxx xxx xxx
As for the first issue the answer is that his status at the time of his ouster on April 16, 1964 was that of temporary driver
of the CPD. His appointments on January 8, 1958, January 8, 1960, December 21, 1961 and on November 7, 1963 were all
temporary in nature. It is true that on March 5, 1964 the Civil Service Commission certified to his having passed the
patrolman/detective civil service examination with a rating of 75.85%, but said examination is not intended for or
appropriate to, the position of driver; hence, it did not convert his temporary status of driver to a permanent one. (Sec. 8,
Rule IV, Civil Service Rules.) Then again, the mere certification of the Civil Service Commission of his civil service eligibility
for patrolman/detective did not amount to his appointment. The appointing power, the City Mayor, has the right of choice
which he may exercise freely according to his judgment, deciding for himself who is best qualified for any competitive
position in the Civil Service. The Civil Service Commission does not ensure any appointment; it only certifies an eligible to
be possessed of the qualification, as required for a position classified under its rules. (Jimenez vs. General Francisco, etc.,
et al., G.R. No. L-9699, Feb. 28, 1957; Vol. 53 O.G. Aug. 15, 1957, p. 4804.)
The appointment of the petitioner being temporary or provisional in nature, the duration of temporary appointment
should not exceed six months. (Sec. 24, Rep. Act 226.) After the expiration of said period, petitioner could have been
removed at will by the appointment power; his continuance thereafter as a temporary employee was only an extension
of grace. (Jimenez vs. General Francisco, etc., et al., supra.)
Temporary appointment is similar to one made in an acting capacity, the essence of which lies in its temporary character
and its terminability at pleasure by the appointing power. And one who bears such an appointment cannot complain if it
is terminated at a moment's notice. (Cuadra vs. Cordova, G.R. No. L-11602, April 21, 1958; Vol. 54 O.G. Dec. 8, 1958, p.
8063.)6
Hence, this appeal.
In his Brief petitioner assigns only one error: The court a quo erred in dismissing his petition.7
In support thereof he argues that his removal on the ground that there was "no more need for your service" was not real
and true but a mere pretext, for after his ouster one Eduardo Gabiana, a non-civil service eligible, was appointed to the
vacated position and in the succeeding budget of the City of Cebu more positions of driver were created; at the time of
his ouster he was already a civil service eligible, having passed the patrolman-detective (qualifying) civil service
examination given in July of 1963, and respondents knew of this fact. Moreover, said removal was not for cause, and it
was done without due process in violation of Section 32 of R.A. No. 2260 which provides that 44 no officer or employee
in the civil service shall be removed or suspended except for cause provided by law and after due process."
Petitioner further argues that his last appointment of 7 November 1963 was approved under Section 24(c) of R.A. No.
2260; therefore, it was a provisional and not a temporary appointment as erroneously classified by the court a quo.
Republic Act No. 2260 makes a distinction between provisional and temporary appointments. The former is governed by
Section 24(c) while the latter is covered by Section 24(d) thereof. According to him, his appointment was provisional
because at the time it was extended he was not yet a civil service eligible. He was still awaiting for the results of the
examination for patrolman-detective (qualifying) given by the Civil Service Commission in July of 1963; however, he
received his report of rating on 8 March 1963 indicating that he passed it; consequently, instead of dismissing him, the
City Mayor should have extended to him a permanent appointment inasmuch as he had already become a civil service
eligible. In short, he claims that his patrolman-detective eligibility is appropriate to his position considering the nature of
his office prior to his removal which authorized him to wear the uniform and badge of a regular member of the Cebu
Police Department, carry an official firearm, wear an ID as a regular member of the city police, and to make arrests.
Finally, petitioner submits that as member of the Cebu City Police at the time of his removal, his separation from the
service could only be done under R.A. No. 557 under which the City Mayor can only prefer charges but cannot remove.
Respondents filed their Brief after the expiration of the reglementary period. Upon motion of petitioner dated 29 March
19678 this Court ordered their brief stricken off the record.9
We agree with the petitioner that the trial court erred in holding that his appointment is temporary in nature. Obviously,
the trial court failed to appreciate the clear distinction between a temporary appointment and a provisional appointment.
It had either confused one for the other or considered one as synonymous with the other as shown in the opening
sentence of the first paragraph of the portions of the decision hereinbefore quoted wherein it categorized the
appointment of petitioner as "temporary or provisional in nature."
As correctly stated by petitioner, provisional appointments are governed by paragraph (c) of Section 24 of R.A. No. 2260
while temporary appointments are covered by paragraph (d) of said Section. For convenience We quote both paragraphs:
xxx xxx xxx
(c) Provisional appointments — A provisional appointment may be issued upon prior authorization of the Commissioner
in accordance with the provisions of the Act and the rules and standards promulgated in pursuance thereto to a person
who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a
regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest
of the service and there is no appropriate register of eligibles at the time of appointment.
(d) Temporary appointment. — A person may receive a temporary appointment to a position needed only for a limited
period not exceeding six months, provided that a preference in filling such position be given to persons on appropriate
eligible lists.
In Festejo vs. Barreras, et al., L-25074, 27 December 1969,10 We made a distinction between a provisional appointment
and temporary appointment thus:
xxx xxx xxx
There is no basis nor logic in appellants' contention that there is no difference between a temporary appointment under
Section 24(d) of the Civil Service Act which reads thus:
Temporary Appointment. — A person may receive a temporary appointment to a position needed only for a limited period
not exceeding six months, provided that preference in filing such position be given to persons on appropriate eligible lists.
and a provisional appointment under Section 24(c) which says:
Provincial appointment. — A provisional appointment may be issued upon the prior authorization of the Commissioner in
accordance with the provisions of this Act and the rules and standards promulgated in pursuance thereto to a person who
has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular
position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the
service and there is no appropriate register of eligibles at the time of appointment.
According to appellants, "while they may be different in the degree of permanence, in that temporary appointments are
generally for and within specified periods of time, their nature as being subject to termination by the appointing power
remains the same." Such contention petition is untenable.
Even from a cursory reading of these two provisions, one can readily see that each of them contemplates an entirely
different situation from the other. Indeed, as pointed out by His Honor, the trial judge, it is contrary to the ordinary rules
of legal hermeneutics to assume that the lawmakers intended these two separate provisions in a seemingly single
enumeration of categories of appointments to have the same import or significance. Whereas a temporary appointment
is designed to fill "a position needed only for a limited period not exceeding six months, a provisional appointment, on the
other hand, is intended for the contingency that "a vacancy occurs and the filling thereof is necessary in the interest of
the service and there is no appropriate register of eligibles at the time of appointment." In other words, the reason for
extending a provisional appointment is not because there is an occasional work or job to be done which is expected to be
finished in not more than six months but because the interest of the service requires that certain work be done or functions
be performed by a regular employee, only that there is no one with appropriate eligibility, who can be appointed to do it,
hence any other eligible may be appointed to perform such work or functions in the meanwhile that a suitable eligible
does not qualify for the position. This is clearly implied by the mandate of the provision that a provisional appointment
may be extended only to "a person who has not qualified in an appropriate examination but who otherwise meets the
requirements for appointment to a regular position in the competitive service," meaning one who must anyway be a civil
service eligible. On the other hand, again, in the case of a temporary appointment, all that the law enjoins is that
"preference in filling such position be given to persons on appropriate eligible lists." And merely giving preference, of
course, presupposes that even a non-eligible may be appointed. As a matter of fact, under this provision, even if the
appointee has the required civil service eligibility, his appointment is still temporary, simply because such is the nature of
the work to be done. The decisions cited by appellants are not in point. They all refer to temporary appointments as such.
None of them involves a provisional appointment like the one herein in question.
In Ata, et al. vs. Namocatcat, et al., L-39703, 30 October 1972,11 We further elaborated on the distinction:
. . . A provisional appointment is one which may be issued, upon the prior authorization of the Commissioner of Civil
Service in accordance with the provisions of the Civil Service Law and the rules and standards promulgated thereunder,
to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for
appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is
necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment (Sec.
24(c), supra). On the other hand, a temporary appointment given to a non-civil service eligible is without a definite tenure
of office and is dependent upon the pleasure of the appointing power." (Citing Cuadra vs. Cordova, 103 Phil. 391; Pinullar
vs. President of the Senate, 104 Phil. 131, 135).
As early as Piñero, et al. vs. Hechanova, et al., L-22562, 22 October 1966,12 We held:
. . . Even in the case of those holding provisional or probationary appointments . . . the invalidity thereof can not be
declared unless it is first shown that there were appropriate eligibles at the time they were appointed . . .
In Ferrer vs. Hechanova, L-24416, 25 January 1967,13 We held:
. . . A provisional appointment is good only until replacement by a civil service eligible and in no case beyond thirty (30)
days from the date of receipt by the appointing officer of the certificate of eligibility (Sec. 24(c), R.A. 2260; Rule VI, Secs.
13 and 14, Revised Civil Service Rules; Piñero vs. Hechanova, supra).
In Ramos vs. Subido, L-26090, September 6, 1967,14 We ruled:
The position in question is under the classified service; Ramos accepted Ms latest appointment thereto, dated July 1, 1963,
without having the requisite appropriate civil service eligibility for said position. Accordingly, his appointment can only be
deemed provisional and good only until replacement by one holding such appropriate eligibility, in no case to extend more
than thirty days from receipt of the appointing officer of the list of eligibles (Ferrer vs. Hechanova, L-24418, January 25,
1967).
In Aguilar vs. Hon. Augusto L. Valencia, et al., L-30396, 30 July 1971,15 We affirmed the decision of the trial court holding
that provisional appointments under Sec. 24(c) of R.A. No. 2260 can only by terminated thirty days after receipt by the
appointing power of a list of eligibles from the Civil Service Commission.
In Lamata, et al. vs. Cusi, et al., L-32619, 31 October 1972,16 We reiterated our rulings in Piñero vs. Hechanova, Ferrer vs.
Hechanova, and Ramos vs. Subido.
Accordingly, since there was no certificate of civil service eligibility received by respondent City Mayor, the provisional
appointment of petitioner remained valid and subsisting. Prior to such receipt petitioner may only be removed for cause
as provided by law under Section 32 of R.A. No. 2260. That there was "no more need" for his service was not a valid and
lawful cause and even if it were so, it could not be availed of in this case since, as admitted by the parties, immediately
after the ouster a non-civil service eligible was appointed to replace petitioner and more driver positions were included
in the succeeding budget of the City of Cebu. These facts negated the pretended basis for the dismissal. The real hidden
cause was not that service of the nature and character rendered by petitioner was no longer needed, but that petitioner
had become unacceptable to the appointing authority. Petitioner testified that his removal was politically motivated, he
was suspected of supporting the faction of Mr. Durano, a political enemy of respondent City Mayor. We are not inclined
to give full faith and credit to this testimony considering that this point was not even alleged in the petition.
We agree, however, with the court below that the patrolman-detective civil service eligibility of petitioner "is not intended
for or appropriate to the position of driver; hence, it did not convert his temporary [should be, correctly, provisional]
appointment of driver to a permanent one (Sec. 8, Rule IV, Civil Service Rules)."
Section 8, Rule IV of the Civil Service Rules provides:
xxx xxx xxx
Except as otherwise provided by law, eligibility in a certain examination shall serve as qualification for appointment only
to the position or positions for which examination was held and no horizontal or vertical conversion of eligibility or
examination rating shall be allowed.
xxx xxx xxx
In Police Commission vs. Lood, et al., L-34637, 24 February 1984,17 We ruled:
Under the civil service law then in force, the fact that private respondent subsequently became a civil service eligible did
not ipso facto render permanent the nature of his temporary appointment as to make the question moot and academic.
Although this case refers to a temporary appointment, the rule laid down equally applies to a provisional appointment.
This matter, however, had been subsequently categorically resolved in favor of holders of provisional appointments by
R.A. No. 6040, which took effect on 4 August 1969. Section 18 thereof provides:
. . . all provisional appointments made or appointments approved by the Civil Service Commission under Section 24(C) of
Republic Act Numbered Two thousand two hundred sixty prior to the approval of this Act shall automatically be
permanent under the provisions of Section twenty-four (b) thereof as amended by this Act, subject to the provisions of
Section 16(h) of said Act as herein amended. (emphasis supplied).
Pursuant thereto, petitioner's provisional appointment of 7 November 1963 automatically became permanent effective 4
August 1969.
We therefore rule that petitioner's dismissal was illegal and that he should be reinstated.
He should also be granted back salaries.
However, the award for back salaries should not be from the date of his dismissal until reinstatement. In similar cases, We
limited the award for a period of five (5) years.18
In Ginson vs. Municipality of Murcia, et al., We ruled:
Considering however, the lapse of time spanning almost twenty years—since this controversy rose, and considering the
probability that the petitioner might have, in the interim, acquired a new employment, we are constrained to grant her
the payment of back salaries equivalent to five (5) years without deduction or qualification. (Citing Laganapan vs.
Asedillo, supra).
We likewise order her reinstatement, subject to the condition that she has not obtained any other employment in Murcia
municipal dentist or any position for which she is qualified by reason of civil service eligibility and subject to the requisites
of age and physical fitness. . . .
As to who of the respondents should pay the back salaries, We rule that only respondent City of Cebu should be liable
therefor. Respondent City of Cebu did not oppose the dismissal of petitioner and the appointment in his stead of another
whose salaries it thereafter paid. All respondents were represented by the Assistant City Fiscal of Cebu City and interposed
the same defenses.19 Moreover, after respondent Mayor Osmeña vacated his office his successor, Carlos J. Cuizon, without
the objection on the part of the City of Cebu, filed a manifestation in the court below to the effect that he adopted the
position of his predecessor, Mayor Osmeña, in respect to the course of action taken against petitioner 20 In short,
respondent City of Cebu confirmed or ratified the action of the Mayor.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered REVERSING the Decision appealed from the ORDERING
the respondent City of Cebu to (a) reinstate petitioner, subject to the condition that he has not obtained any other
employment, to his position under his appointment of 7 November 1963, or to any position of equivalent rank, or for
which he is qualified by reason of civil service eligibility and subject to the requisites of age and physical fitness, (b) pay
petitioner back salaries, at the rate last received by him, for a period of five (5) years without qualification and deduction
and with interest at the legal rate from the date of his illegal dismissal until the same shall have been fully paid, and (c)
pay the costs.
SO ORDERED.
Fernan C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

G.R. No. 93023 March 13, 1991

TOMAS D. ACHACOSO, petitioner
vs.
CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as Executive Secretary and Secretary of the Department
of Labor and Employment (DOLE), respectively; and JOSE N. SARMIENTO, respondents.
Padilla, Jimenez, Kintanar and Asuncion Law Office for petitioner.
CRUZ, J.:
The petitioner invokes security of tenure against his claimed removal without legal cause. The respondents assert he is
not entitled to the guaranty because he is not a career official. These are the legal issues. The facts are as follows:
Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment Administration on October 16,
1987, and assumed office on October 27, 1987. On January 2, 1990, in compliance with a request addressed by the
President of the Philippines to "all Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other
government officials, he filed a courtesy resignation. This was accepted by the President on April 3, 1990, "with deep
regrets." On April 10, 1990, the Secretary of Labor requested him to turn over his office to the Deputy Administrator as
officer in-charge. In a letter dated April 19, 1990, he protested his replacement and declared he was not surrendering his
office because his resignation was not voluntary but filed only in obedience to the President's directive. On the same date,
respondent Jose N. Sarmiento was appointed Administrator of the POEA, vice the petitioner. Achacoso was informed
thereof the following day and was again asked to vacate his office. He filed a motion for reconsideration on April 23, 1990,
but this was denied on April 30, 1990. He then came to this Court for relief.
In this petition for prohibition and mandamus, this Court is asked to annul the appointment of Sarmiento and to prohibit
the respondents from preventing the petitioner from discharging his duties as Administrator of the POEA.
Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys security of tenure, which
is one of the characteristics of the Career Service as distinguished from the Non-Career Service.1 Claiming to have the rank
of undersecretary, he says he comes under Article IV, Section 5 of P.D. 807, otherwise known as the Civil Service Decree,
which includes in the Career Service:
3. Positions in the Career Executive Service; namely, 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 Career Executive Service Board, all of whom are appointed by the President.
His argument is that in view of the security of tenure enjoyed by the above-named officials, it was "beyond the
prerogatives of the President" to require them to submit courtesy resignations. Such courtesy resignations, even if filed,
should be disregarded for having been submitted "under duress," as otherwise the President would have the power to
remove career officials at pleasure, even for capricious reasons. In support of this contention, he invokes Ortiz vs.
Commission on Elections,2 where we observed that "to constitute a complete and operative act of resignation, the officer
or employee must show a clear intention to relinquish" and that "a courtesy resignation cannot properly be interpreted
as a resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his
position." He concludes that as his removal was illegal, there was no vacancy in the disputed office to which respondent
Sarmiento could have been validly appointed.
In his Comment, the Solicitor General concedes that the office of POEA Administrator is a career executive service position
but submits that the petitioner himself is not a career executive service official entitled to security of tenure. He offers the
following certification from the Civil Service Commission to show that the petitioner did not possess the necessary
qualifications when he was appointed Administrator of the POEA in 1987:
CERTIFICATION
This is to certify that per records of the Career Executive Service Board (CESB), Mr. Tomas D. Achacoso III has not
participated in a Career Executive Service Development Program (CESDP) and is not a CES eligible. This is to certify further
that Mr. Achacoso was not appointed to a rank in the CES and is not therefore a member of the Career Executive Service.
xxx xxx xxx
(Sgd.) ELMOR D. JURIDICO
Executive Director
Reference is also made to the following rules embodied in Part III, Article IV, Integrated Reorganization Plan as approved
by P.D. 1 and amended by P.D. 336 and P.D. 337, on the career executive service:
c. Appointment. Appointment to appropriate classes in the Career Service shall be made by the Presidentfrom a list of
career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank; provided
that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads of the
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. (Emphasis supplied.)
The respondents contend that as the petitioner was not a career executive service eligible at the time of his appointment,
he came under the exception to the above rule and so was subject to the provision that he "shall subsequently take the
required Career Executive Service examination and that he shall not be promoted to a higher rank until he qualifies in such
examination." Not having taken that examination, he could not claim that his appointment was permanent and
guaranteed him security of tenure in his position.
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 moment's notice," conformably to established jurisprudence.
The Court, having considered these submissions and the additional arguments of the parties in the petitioner's Reply and
the Solicitor-General's Rejoinder, must find for the respondents.
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.3
The appointment extended to him cannot be regarded as permanent even if it may be so designated.
The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by
authorizing a person to discharge the same pending the selection of a permanent or another appointee.4 The person
named in an acting capacity accepts the position under the condition that he shall surrender the office once he is called
upon to do so by the appointing authority.
In these circumstances, the acting appointee is separated by a method of terminating official relations known in the law
of public officers as expiration of the term. His term is understood at the outset as without any fixity and enduring at the
pleasure of the appointing authority. When required to relinquish his office, he cannot complain that he is being removed
in violation of his security of tenure because removal imports the separation of the incumbent beforethe expiration of his
term.5 This is allowed by the Constitution only when it is for cause as provided by law. The acting appointee is separated
precisely because his term has expired. Expiration of the term is not covered by the constitutional provision on security of
tenure.
There is a long line of cases affirming the rule that:
. . . One who holds a temporary appointment has no fixed tenure of office; his employment can be terminated at the
pleasure of the appointing power, there being no need the show that the termination is for cause.6
The petitioner contends that his appointment was really intended to be permanent because temporary appointments are
not supposed to exceed twelve months and he was allowed to serve in his position for more than three years. This is
unacceptable. Even if that intention were assumed, it would not by itself alone make his appointment permanent. Such
an appointment did not confer on the petitioner the appropriate civil service eligibility he did not possess at the time he
was appointed, nor did it vest him with the right to security of tenure that is available only to permanent appointees.
The case of Luego vs. Civil Service Commission7 is not applicable because the facts of that case are different. The petitioner
in Luego was qualified and was extended a permanent appointment that could not be withdrawn on the ground that it
was merely temporary. In the case at bar, the petitioner was not eligible and therefore could be appointed at best only in
a temporary capacity. The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate
Court,8 Palma-Fernandez vs. De la Paz,9 and Dario vs. Mison,10 are also not pertinent because they also
involved permanent appointees who could not be removed because of their security of tenure.
It should be obvious from all the above observations that the petitioner could have been validly replaced even if he had
not filed his courtesy resignation. We therefore do not have to rule on its legality. Suffice it to say that it could have been
a graceful way of withdrawing him from his office with all the formal amenities and no asperity or discord if only he had
not chosen to contest it. But it was his right to do so, of course, although his challenge has not succeeded.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.
Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Sarmiento, Griño-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.
Narvasa and Padilla, JJ., took no part.

G.R. No. 104639 July 14, 1995

PROVINCE OF CAMARINES SUR through its GOVERNOR, SANGGUNIANG PANLALAWIGAN and PROVINCIAL
TREASURER, petitioner,
vs.
COURT OF APPEALS and TITO B. DATO, respondent.

KAPUNAN, J.:
Petitioner Province of Camarines Sur assails the decision of the Court of Appeals which affirmed with modification the
Regional Trial Court of Camarines Sur's decision ordering it to pay private respondent Tito Dato backwages and attorney's
fees.
The relevant antecedents are as follows:
On January 1, 1960, private respondent Tito Dato was appointed as Private Agent by the then governor of Camarines Sur,
Apolonio Maleniza.
On October 12, 1972, he was promoted and was appointed Assistant Provincial warden by then Governor Felix Alfelor, Sr.
Because he had no civil service eligibility for the position he was appointed to, private respondent Tito Dato could not be
legally extended a permanent appointment. Hence, what was extended to him was only a temporary appointment.
Thereafter, the temporary appointment was renewed annually.
On January 1, 1974, Governor Alfelor approved the change in Dato's employment status from temporary to permanent
upon the latter's representation that he passed the civil service examination for supervising security guards. Said change
of status however, was not favorably acted upon by the Civil Service Commission (CSC) reasoning that Tito Dato did not
possess the necessary civil service eligibility for the office he was appointed to. His appointment therefore remained
temporary.
Thereafter, no other appointment was extended to him.
On March 16, 1976, private respondent Tito Dato was indefinitely suspended by Governor Alfelor after criminal charges
were filed against him and a prison guard for allegedly conniving and/or consenting to evasion of sentence of some
detention prisoners who escaped from confinement.
On March 19, 1976, or two years after the request for change of status was made, Mr. Lope B. Rama, head of the
Camarines Sur Unit of the Civil Service Commission, wrote the Governor of Camarines Sur a letter informing him that the
status of private respondent Tito Dato has been changed from temporary to permanent, the latter having passed the
examination for Supervising Security Guard. The change of status was to be made retroactive to June 11, 1974, the date
of release of said examination.
In the meantime, the Sangguniang Panlalawigan, suppressed the appropriation for the position of Assistant Provincial
Warden and deleted private respondent's name from the petitioner's plantilla.
Private respondent Tito Dato was subsequently acquitted of the charges against him. Consequently, he requested the
Governor for reinstatement and backwages.
When his request for reinstatement and backwages was not heeded, private respondent Tito Dato filed an action
for mandamus before the Regional Trial Court of Pili, Camarines Sur, Branch 31.
On May 31, 1991, the trial court 1 rendered judgment, the decretal portion of which reads:
WHEREFORE, judgment is hereby rendered, ordering the respondents:
1) to appropriate and pay the back salaries of the petitioner Tito B. Dato equivalent to five (5) years without qualification
or deduction, at the rate of P14,532.00 per annum, with all the rights and privileges that he is entitled to as a regular
government employee reaching the age of 65 in the government service, as provided by law;
2) to pay the petitioner the sum of P5,000.00 as attorney's fees; and
3) to pay the costs.
SO ORDERED.2
In due course, petitioner Province of Camarines Sur appealed the said decision to the Court of Appeals.
On February 20, 1992, respondent Court of Appeals rendered its decision which dispositively reads as follows:
WHEREFORE, in view of all the foregoing, judgment appealed from is hereby AFFIRMED with the following modifications:
(1) respondents are ordered to pay the backwages of petitioner Tito B. Dato during the entire period of his suspension,
with all the rights and privileges that he is entitled to as a regular government employee reaching the age of 65 in the
government service, as provided by law; and (2) the award of the sum of P5,000 to petitioner as attorney's fees and
respondents to pay the costs of suit is deleted.
IT IS SO ORDERED.3
Aggrieved by the foregoing ruling, petitioner Province of Camarines Sur interposed the present petition submitting that
the respondent court erred in (a) affirming the trial court's finding that private respondent Tito Dato was its permanent
employee at the time he was suspended on March 16, 1976; and (b) modifying the said decision so as to allow private
respondent to claim backwages for the entire period of his suspension.
The primary question to be resolved in the instant case is whether or not private respondent Tito Dato was a permanent
employee of petitioner Province of Camarines Sur at the time he was suspended on March 16, 1976.
Petitioner contends that when Governor Alfelor recommended to CSC the change in the employment status of private
respondent from temporary to permanent, which the CSC approved as only temporary pending validation of the results
of private respondent's examination for supervising security guard, private respondent's appointment in effect remained
temporary. Hence, his subsequent qualification for civil service eligibility did not ipso facto convert his temporary status
to that of permanent.
Private respondent, on his part, vigorously asseverates that the respondent court committed no error in confirming his
appointment as permanent.
We agree with the petitioner.
Private respondent does not dispute the fact that at the time he was appointed Assistant Provincial Warden on January 1,
1974, he had not yet qualified in an appropriate examination for the aforementioned position. Such lack of a civil service
eligibility made his appointment temporary4 and without a fixed and definite term and is dependent entirely upon the
pleasure of the appointing power.5 The fact that private respondent obtained civil service eligibility later on is of no
moment as his having passed the supervising security guard examination, did not ipso facto convert his temporary
appointment into a permanent one.6 In cases such as the one at bench, what is required is a new appointment since a
permanent appointment is not a continuation of the temporary appointment — these are two distinct acts of the
appointing
authority.7
It is worthy to note that private respondent rests his case entirely on the letter dated March 19, 1976 communicated by
Mr. Lope Rama to the Governor of Camarines Sur. The letter, which is self-explanatory, is reproduced in full below:
XXXXXXXXXXXX
CAMARINES SUR UNIT
Naga City
Re: DATO, Tito
— Appointment of
March 19, 1976
The Honorable
The Provincial Governor of Camarines Sur
Naga City.
Sir:
This refers to the latest approved appointment of Mr. TITO DATO as Asst. Provincial Warden, this province, at P3600,
effective January 1, 1974 which was approved by this Office as temporary pending validation of his Supervising Security
Guard eligibility.
It appears, however, that the aforementioned eligibility of Mr. Dato was released on June 11, 1974. In this connection,
attention is being invited to Sec. 19, Rule III of the Rules on Personnel Action and Policies which provides that "Eligibility
resulting from civil service examination . . . shall be effective on the date on the release of the results of the examination.
. . ." (Emphasis supplied.) Mr. Dato's Supervising Security Guard eligibility, therefore, takes effect June 11, 1974, the date
the results thereof was released.
In view thereof, the aforementioned appointment of Mr. Dato is hereby approved anew as follows: "APPROVED as
temporary under Sec. 24 (c), R.A. 2260, as amended, effective January 1, 1974 up to June 10, 1974 and as permanent
under Sec. 24 (b), R.A. 2260, as amended, subject to the report on his physical and medical examination as to
insurability, effective June 11, 1974. The Supervising Security Guard eligibility of Mr. Dato has been validated by the Civil
Service Commission, Quezon City.
The records of Mr. Dato in this Office have been amended accordingly.
Very truly yours,
By authority of the Commission.
(Initialed)
LOPE B. RAMA
Unit Head8
The foregoing is a clear arrogation of power properly belonging to the appointing authority. Time and again, the Court has
defined the parameters within which the power of approval of appointments shall be exercised by the Civil Service
Commission. In Luego v. Civil Service Commission,9 the Court ruled that CSC has the power to approve or disapprove an
appointment set before it. It does not have the power to make the appointment itself or to direct the appointing authority
to change the employment status of an employee. The CSC can only inquire into the eligibility of the person chosen to fill
a position and if it finds the person qualified it must so attest. If not, the appointment must be disapproved. The duty of
the CSC is to attest appointments 10 and after that function is discharged, its participation in the appointment process
ceases. 11 In the case at bench, CSC should have ended its participation in the appointment of private respondent on
January 1, 1974 when it confirmed the temporary status of the latter who lacked the proper civil service eligibility. When
it issued the foregoing communication on March 19, 1976, it stepped on the toes of the appointing authority, thereby
encroaching on the discretion vested solely upon the latter.
Moreover, the Court is not prepared to accord said letter 12 any probative value, the same being merely a purported
photocopy of the alleged letter, initialed and not even signed by the proper officer of the CSC.
Based on the foregoing, private respondent Tito Dato, being merely a temporary employee, is not entitled to the relief he
seeks, including his claim for backwages for the entire period of his suspension.
WHEREFORE, premises considered, the appealed decision is hereby REVERSED and the petition for mandamusinstituted
by herein private respondent Tito Dato is hereby DISMISSED.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Mendoza and
Francisco, JJ., concur.