GAMINDE VS COA
On June 15, 1999, the Commission on
The Case
The case is a special civil action of
certiorari seeking to annul and set aside two
“decisions” of the Commission on Audit ruling
that petitioner’s term of office as
Commissioner, Civil Service Commission, to
which she was appointed on June 11, 1993,
expired on February 02, 1999, as set forth in
her appointment paper.
The Facts
On June 11, 1993, the President of the
Philippines appointed petitioner Thelma P.
Gaminde, ad interim, Commissioner, Civil
Service Commission. She assumed office on June
22, 1993, after taking an oath of office. On
September 07, 1993, the Commission on
Appointment, Congress of the Philippines
confirmed the appointment. We quote verbatim
her appointment paper:
“11 June 1993
“Madam:
“Pursuant to the provisions of existing laws,
you are hereby appointed, ad interim,
COMMISSIONER, CIVIL SERVICE COMMISSION, for a
term expiring February 2, 1999.
“By virtue hereof, you may qualify and enter
upon the performance of the duties of the
office, furnishing this Office and the Civil
Service Commission with copies of your oath of
office.”[1]
However, on February 24, 1998, petitioner
sought clarification from the Office of the
President as to the expiry date of her term of
office. In reply to her request, the Chief
Presidential Legal Counsel, in a letter dated
April 07, 1998[2] opined that petitioner’s
term of office would expire on February 02,
2000, not on February 02, 1999.
Relying on said advisory opinion, petitioner
remained in office after February 02, 1999. On
February 04, 1999, Chairman Corazon Alma G. de
Leon, wrote the Commission on Audit requesting
opinion on whether or not Commissioner Thelma
P. Gaminde and her co-terminous staff may be
paid their salaries notwithstanding the
expiration of their appointments on February
02, 1999.
On February 18, 1999, the General Counsel,
Commission on Audit, issued an opinion that
“the term of Commissioner Gaminde has expired
on February 02, 1999 as stated in her
appointment conformably with the
constitutional intent.”[3]
Consequently, on March 24, 1999, CSC Resident
Auditor Flovitas U. Felipe issued notice of
disallowance No. 99-002-101 (99), disallowing
in audit the salaries and emoluments
pertaining to petitioner and her co-terminous
staff, effective February 02, 1999.[4]
On April 5, 1999, petitioner appealed the
disallowance to the Commission on Audit en
banc.
Audit issued Decision No. 99-090 dismissing
petitioner’s appeal. The Commission on Audit
affirmed the propriety of the disallowance,
holding that the issue of petitioner’s term of
office may be properly addressed by mere
reference to her appointment paper which set
the expiration date on February 02, 1999, and
that the Commission is bereft of power to
recognize an extension of her term, not even
with the implied acquiescence of the Office of
the President.[5]
In time, petitioner moved for reconsideration;
however, on August 17, 1999, the Commission on
Audit denied the motion in Decision No. 99-
129.[6]
Hence, this petition.[7]
The Issue
The basic issue raised is whether the term of
office of Atty. Thelma P. Gaminde, as
Commissioner, Civil Service Commission, to
which she was appointed on June 11, 1993,
expired on February 02, 1999, as stated in the
appointment paper, or on February 02, 2000, as
claimed by her.
The Court’s Ruling
The term of office of the Chairman and members
of the Civil Service Commission is prescribed
in the 1987 Constitution, as follows:
“Section 1 (2). The Chairman and the
Commissioners shall be appointed by the
President with the consent of the Commission
on Appointments for a term of seven years
without reappointment. Of those first
appointed, the Chairman shall hold office for
seven years, a Commissioner for five years,
and another Commissioner for three years,
without reappointment. Appointment to any
vacancy shall be only for the unexpired term
of the predecessor. In no case shall any
Member be appointed or designated in a
temporary or acting capacity.”[8]
The 1973 Constitution introduced the first
system of a regular rotation or cycle in the
membership of the Civil Service Commission.
The provision on the 1973 Constitution reads:
“x x x The Chairman and the Commissioners
shall be appointed by the Prime Minister for a
term of seven years without reappointment. Of
the Commissioners first appointed, one shall
hold office for seven years, another for five
years, and the third for three years.
Appointment to any vacancy shall be only for
the unexpired portion of the term of the
predecessor.”[9]
Actually, this was a copy of the
Constitutional prescription in the amended
1935 Constitution of a rotational system for
the appointment of the Chairman and members of
the Commission on Elections. The
Constitutional amendment creating an
independent Commission on Elections provides
as follows:
“Section 1. There shall be an independent
Commission on Elections composed of a Chairman
and two other Members to be appointed by the
President with the consent of the Commission
on Appointments, who shall hold office for a
term of nine years and may not be reappointed.
Of the Members of the Commission first
appointed, one shall hold office for nine
years, another for six years, and the third
for three years. The Chairman and the other
Members of the Commission on Elections may be
removed from office only by impeachment in the
manner provided in this Constitution.”[10]
In Republic vs. Imperial,[11] we said that
“the operation of the rotational plan requires
two conditions, both indispensable to its
workability: (1) that the terms of the first
three (3) Commissioners should start on a
common date, and, (2) that any vacancy due to
death, resignation or disability before the
expiration of the term should only be filled
only for the unexpired balance of the
term.”[12]
Consequently, the terms of the first Chairmen
and Commissioners of the Constitutional
Commissions under the 1987 Constitution must
start on a common date, irrespective of the
variations in the dates of appointments and
qualifications of the appointees, in order
that the expiration of the first terms of
seven, five and three years should lead to the
regular recurrence of the two-year interval
between the expiration of the terms.[13]
Applying the foregoing conditions to the case
at bar, we rule that the appropriate starting
point of the terms of office of the first
appointees to the Constitutional Commissions
under the 1987 Constitution must be on
February 02, 1987, the date of the adoption of
the 1987 Constitution. In case of a belated
appointment or qualification, the interval
between the start of the term and the actual
qualification of the appointee must be counted
against the latter.[14]
In the law of public officers, there is a
settled distinction between “term” and
“tenure.” “[T]he term of an office must be
distinguished from the tenure of the
incumbent. The term means the time during
which the officer may claim to hold office as
of right, and fixes the interval after which
the several incumbents shall succeed one
another. The tenure represents the term during
which the incumbent actually holds the office.
The term of office is not affected by the
hold-over. The tenure may be shorter than the
term for reasons within or beyond the power of
the incumbent.”[15]
In concluding that February 02, 1987 is the
proper starting point of the terms of office
of the first appointees to the Constitutional
Commissions of a staggered 7-5-3 year terms,
we considered the plain language of Article IX
(B), Section 1 (2), Article IX (C), Section 1
(2) and Article IX (D), Section 1 (2) of the
1987 Constitution that uniformly prescribed a
seven-year term of office for Members of the
Constitutional Commissions, without re-
appointment, and for the first appointees
terms of seven, five and three years, without
re-appointment. In no case shall any Member be
appointed or designated in a temporary or
acting capacity. There is no need to expressly
state the beginning of the term of office as
this is understood to coincide with the
effectivity of the Constitution upon its
ratification (on February 02, 1987).
On the other hand, Article XVIII, Transitory
Provisions, 1987 Constitution provides:
“SEC. 15. The incumbent Members of the Civil
Service Commission, the Commission on
Elections, and the Commission on Audit shall
continue in office for one year after the
ratification of this Constitution, unless they
are sooner removed for cause or become
incapacitated to discharge the duties of their
office or appointed to a new term thereunder.
In no case shall any Member serve longer than
seven years including service before the
ratification of this Constitution.”[16]
What the above quoted Transitory Provisions
contemplate is “tenure” not “term” of the
incumbent Chairmen and Members of the Civil
Service Commission, the Commission on
Elections and the Commission on Audit, who
“shall continue in office for one year after
the ratification of this Constitution, unless
they are sooner removed for cause or become
incapacitated to discharge the duties of their
office or appointed to a new term thereunder.”
The term “unless” imports an exception to the
general rule.[17] Clearly, the transitory
provisions mean that the incumbent members of
the Constitutional Commissions shall continue
in office for one year after the ratification
of this Constitution under their existing
appointments at the discretion of the
appointing power, who may cut short their
tenure by: (1) their removal from office for
cause; (2) their becoming incapacitated to
discharge the duties of their office, or (3)
their appointment to a new term thereunder,
all of which events may occur before the end
of the one year period after the effectivity
of the Constitution.
However, the transitory provisions do not
affect the term of office fixed in Article IX,
providing for a seven-five-three year
rotational interval for the first appointees
under this Constitution.
At the time of the adoption of the 1987
Constitution, the incumbent Chairman and
members of the Civil Service Commission were
the following: (1) Chairperson Celerina G.
Gotladera. She was initially appointed as OIC
Chairman on March 19, 1986, and appointed
chairman on December 24, 1986, which she
assumed on March 13, 1987. (2) Atty. Cirilo G.
Montejo. On June 25, 1986, President Corazon
C. Aquino appointed him Commissioner, without
any term. He assumed office on July 9, 1986,
and served until March 31, 1987, when he filed
a certificate of candidacy for the position of
Congressman, 2nd District, Leyte, thereby
vacating his position as Commissioner. His
tenure was automatically cut-off by the filing
of his certificate of candidacy. (3) Atty.
Mario D. Yango. On January 22, 1985, President
Ferdinand E. Marcos appointed him Commissioner
for a term expiring January 25, 1990. He
served until February 2, 1988, when his term
ended in virtue of the transitory provisions
referred to. On May 30, 1988, President Aquino
re-appointed him to a new three-year term and
served until May 31, 1991, exceeding his
lawful term, but not exceeding the maximum of
seven years, including service before the
ratification of the 1987 Constitution. Under
this factual milieu, it was only Commissioner
Yango who was extended a new term under the
1987 Constitution. The period consumed between
the start of the term on February 02, 1987,
and his actual assumption on May 30, 1988, due
to his belated appointment, must be counted
against him.
Given the foregoing common starting point, we
compute the terms of the first appointees and
their successors to the Civil Service
Commission under the 1987 Constitution by
their respective lines, as follows:
First line : Chairman – seven-year term.
February 02, 1987 to February 01, 1994. On
January 30, 1988, the President nominated Ms.
Patricia A. Sto. Tomas Chairman, Civil Service
Commission. On March 02, 1988, the Commission
on Appointments confirmed the nomination. She
assumed office on March 04, 1988. Her term
ended on February 02, 1994. She served as de
facto Chairman until March 04, 1995. On March
05, 1995, the President appointed then Social
Welfare Secretary Corazon Alma G. de Leon,
Chairman, Civil Service Commission, to a
regular seven-year term. This term must be
deemed to start on February 02, 1994,
immediately succeeding her predecessor, whose
term started on the common date of the terms
of office of the first appointees under the
1987 Constitution. She assumed office on March
22, 1995, for a term expiring February 02,
2001.
This is shown in her appointment paper, quoted
verbatim as follows:
“March 5, 1995
“Madam:
“Pursuant to the provisions of Article VII,
Section 16, paragraph 2, of the Constitution,
you are hereby appointed, ad interim,
CHAIRMAN, CIVIL SERVICE COMMISSION, for a term
expiring February 2, 2001.
“By virtue hereof, you may qualify and enter
upon the performance of the duties of the
office, furnishing this Office and the Civil
Service Commission with copies of your oath of
office.
“(Sgd.) FIDEL V. RAMOS”
Second line : Commissioner – Five-year term.
February 02, 1987 to February 02, 1992. On
January 30, 1988, the President nominated
Atty. Samilo N. Barlongay Commissioner, Civil
Service Commission. On February 17, 1988, the
Commission on Appointments, Congress of the
Philippines, confirmed the nomination. He
assumed office on March 04, 1988. His term
ended on February 02, 1992. He served as de
facto Commissioner until March 04, 1993.
On June 11, 1993, the President appointed
Atty. Thelma P. Gaminde Commissioner, Civil
Service Commission, for a term expiring
February 02, 1999.[18] This terminal date is
specified in her appointment paper. On
September 07, 1993, the Commission on
Appointments confirmed the appointment. She
accepted the appointment and assumed office on
June 22, 1993. She is bound by the term of the
appointment she accepted, expiring February
02, 1999. In this connection, the letter dated
April 07, 1998, of Deputy Executive Secretary
Renato C. Corona[19] clarifying that her term
would expire on February 02, 2000, was in
error. What was submitted to the Commission on
Appointments was a nomination for a term
expiring on February 02, 1999. Thus, the term
of her successor[20] must be deemed to start
on February 02, 1999, and expire on February
02, 2006.
Third line : Commissioner – Three-year term.
February 02, 1987 to February 02, 1990. Atty.
Mario D. Yango was incumbent commissioner at
the time of the adoption of the 1987
Constitution. His extended tenure ended on
February 02, 1988. In May, 1988, President
Corazon C. Aquino appointed him Commissioner,
Civil Service Commission to a new three-year
term thereunder. He assumed office on May 30,
1988. His term ended on February 02, 1990, but
served as de facto Commissioner until May 31,
1991. On November 26, 1991, the President
nominated Atty. Ramon P. Ereñeta as
Commissioner, Civil Service Commission. On
December 04, 1991, the Commission on
Appointments confirmed the nomination. He
assumed office on December 12, 1991, for a
term expiring February 02, 1997.[21]
Commendably, he voluntarily retired on
February 02, 1997. On February 03, 1997,
President Fidel V. Ramos appointed Atty. Jose
F. Erestain, Jr. Commissioner, Civil Service
Commission, for a term expiring February 02,
2004. He assumed office on February 11, 1997.
Thus, we see the regular interval of vacancy
every two (2) years, namely, February 02,
1994, for the first Chairman,[22] February 02,
1992, for the first five-year term
Commissioner,[23] and February 02, 1990, for
the first three-year term Commissioner.[24]
Their successors must also maintain the two
year interval, namely: February 02, 2001, for
Chairman;[25] February 02, 1999, for
Commissioner Thelma P. Gaminde, and February
02, 1997, for Commissioner Ramon P. Ereñeta,
Jr.
The third batch of appointees would then be
having terms of office as follows:
First line : Chairman, February 02, 2001 to
February 02, 2008; Second line: Commissioner,
February 02, 1999 to February 02, 2006;[26]
and, Third line: Commissioner, February 02,
1997 to February 02, 2004,[27] thereby
consistently maintaining the two-year
interval.
The line of succession, terms of office and
tenure of the Chairman and members of the
Civil Service Commission may be outlined as
follows:[28]
Chairman
Term
Tenure
(7-year original)
Sto. Tomas – 1st appointee Feb. 02, 1987 to
Feb. 02, 1994 Mar. 04, 1988 to
March 08, 1995
De Leon – 2nd appointee
(incumbent) Feb. 02, 1994 to
Feb. 02, 2001 March 22, 1995 to
Feb. 02, 2001
Feb. 02, 1997 Dec. 12, 1991 to
Feb. 02, 1997
Erestain, Jr. – 3rd appointee
(incumbent) Feb. 02, 1997 to
Feb. 02, 2004 Feb. 11, 1997 to
Feb. 02, 2004
The Fallo
WHEREFORE, we adjudge that the term of office
of Ms. Thelma P. Gaminde as Commissioner,
Civil Service Commission, under an appointment
extended to her by President Fidel V. Ramos on
June 11, 1993, expired on February 02, 1999.
However, she served as de facto officer in
good faith until February 02, 2000, and thus
entitled to receive her salary and other
emoluments for actual service rendered.
Consequently, the Commission on Audit erred in
disallowing in audit such salary and other
emoluments, including that of her co-terminous
staff.

_______ – 3rd appointee ACCORDINGLY, we REVERSE the decisions of the

Commission on Audit insofar as they disallow
Feb. 02, 2001 to the salaries and emoluments of Commissioner
Thelma P. Gaminde and her coterminous staff
Feb. 02, 2008 during her tenure as de facto officer from
February 02, 1999, until February 02, 2000.
2nd Member
This decision shall be effective immediately.
(5-year original)
No costs.
Term
SO ORDERED.
Tenure

Barlongay – 1st appointee Feb. 02, 1987 to

Feb. 02, 1992 March 04, 1988 to
March 04, 1993
Gaminde – 2nd appointee Feb. 02, 1992 to
Feb. 02, 1999 June 11, 1993 to
Feb. 02, 2000
Valmores – 3rd appointee
(incumbent) Feb. 02, 1999 to
Feb. 02, 2006 Sept. 08, 2000 to
Feb. 02, 2006
3rd Member
(3-year original)
Term
Tenure
Yango – 1st appointee Feb. 02, 1987 to
Feb. 02, 1990 May 30, 1988 to
May 31, 1991
Ereñeta – 2nd appointee Feb. 02, 1990 to
MORENO VS COMELEC
Facts: Norma Mejes filed a petition to
disqualify Urbano Moreno from running for
Punong Barangay on the ground that the latter
was convicted by final judgment of Arbitrary
Detention and was sentenced to suffer
imprisonment of 4 months and 1 day to 2 years
and 4 months by the RTC. Moreno filed an
answer averring that the petition states no
cause of action because he was already granted
probation. Allegedly, following the case of
Baclayon v. Mutia, the imposition of the
sentence of imprisonment, as well as the
accessory penalties, was thereby suspended.
Moreno also argued that under the Probation
Law, the final discharge of the probation
shall operate to restore to him all civil
rights lost or suspended as a result of his
conviction and to fully discharge his
liability for any fine imposed. The order of
the trial court dated December 18, 2000
allegedly terminated his probation and
restored to him all the civil rights he lost
as a result of his conviction, including the
right to vote and be voted for in the July 15,
2002 elections.
The Investigating Officer of the Office of the
Provincial Election Supervisor of Samar
recommended that Moreno be disqualified from
running. The Comelec First Division adopted
this recommendation. On motion for
reconsideration filed with the Comelec en
banc, the Resolution of the First Division was
affirmed.
In this petition, Moreno argues that the
disqualification under Sec. 40(a)1 of the
Local Government Code (LGC) applies only to
those who have served their sentence and not
to probationers because the latter do not
serve the adjudged sentence. He alleges that
he applied for and was granted probation
within the period specified therefore. He
never served a day of his sentence as a
result. Hence, the disqualification under the
LGC does not apply to him.
Issue: Whether or not Moreno is qualified to
run, which is dependent on WON his sentence
was served
Held: Moreno’s sentence was not served, hence
he is qualified to run for Punong Barangay.
The resolution of the present controversy
depends on the application of the phrase
“within two (2) years after serving sentence”
found in Sec. 40(a) of the LGC.
In Baclayon v. Mutia, the Court declared that
an order placing defendant on probation is not
a sentence but is rather, in effect, a
suspension of the imposition of sentence. We
held that the grant of probation to petitioner
suspended the imposition of the principal
penalty of imprisonment, as well as the
accessory penalties of suspension from public
office and from the right to follow a
profession or calling, and that of perpetual
special disqualification from the right of
suffrage. We thus deleted from the order
granting probation the paragraph which
required that petitioner refrain from
continuing with her teaching profession.
Applying this doctrine to the instant case,
the accessory penalties of suspension from
public office, from the right to follow a
profession or calling, and that of perpetual
special disqualification from the right of
suffrage, attendant to the penalty of arresto
mayor in its maximum period to prision
correccional in its minimum period imposed
upon Moreno were similarly suspended upon the
grant of probation.
It appears then that during the period of
probation, the probationer is not even
disqualified from running for a public office
because the accessory penalty of suspension
from public office is put on hold for the
duration of the probation.
Clearly, the period within which a person is
under probation cannot be equated with service
of the sentence adjudged. Sec. 4 of the
Probation Law specifically provides that the
grant of probation suspends the execution of
the sentence. During the period of probation,
the probationer does not serve the penalty
imposed upon him by the court but is merely
required to comply with all the conditions
prescribed in the probation order.
ERNESTO M. DE GUZMAN, petitioner, vs. HON.
ABELARDO SUBIDO, as Civil Service
Commissioner, HON. NORBERTO AMORANTO, as Mayor
of Quezon City, ET AL., respondents.
Juan T . David and Eulogio V . Reyes for
petitioner.
Jose Torcuator for respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; CIVIL SERVICE
SYSTEM; BASIC POLICY FOR GOVERNMENT
EMPLOYMENT. — The former Civil Service Act No.
2260. as amended. stated in its Section 23
that opportunity for government employment
shall be open to all qualified citizens and
positive efforts shall be exerted to attract
the best qualified to enter the service. The
same policy is reiterated in the Civil Service
Decree, Presidential Decree No. 807, at
Section 19, which superseded Republic Act No.
2260. The requirements for applicants to a
policeman's position may be quite stringent
but the basic policy of attracting the best
qualified is not served by automatically
excluding any person who violated a jaywalking
ordinance or a municipal ordinance prohibiting
a cochero from occupying a seat in the calesa
intended for passengers.
2. ID.; MUNICIPAL CORPORATIONS;
DISTINCTION BETWEEN ACTS OF VIOLATIONS OF
MUNICIPAL ORDINANCES. — The Supreme Court
takes cognizance of the distinction in the law
of municipal corporations which distinguishes
between acts not essentially criminal relating
to municipal regulations for the promotion of
peace, good order, health, safety, and comfort
of residents and acts intrinsically punishable
as public offenses.
3. ID.; ID.; MUNICIPAL REGULATION; PENALTY
IMPOSED FOR BREACH THEREOF; NATURE. — A
penalty imposed for the breach of a municipal
regulation is not necessarily an exercise of
the sovereign authority to define crimes and
provide for their punishment, delegated to a
local government. In many cases, the penalty
is merely intended not to render the ordinance
inoperative or useless.
4. STATUTORY CONSTRUCTION; POLICE ACT OF
1966; INTERPRETATION AS TO LEGISLATIVE INTENT;
MEANING OF "CRIMINAL RECORD" AND "CRIME". —
The phrase "criminal record" governing
qualifications for appointments could not have
been intended by the legislature to
automatically cover every violation of a
municipal or city ordinance carrying a
sanction of a nominal fine to enforce it. A
violation of a municipal ordinance to qualify
as a "drime" must involve at least a certain
degree of evil doing, immoral conduct,
corruption, malice, or want of principles
reasonably related to the requirements of the
public office.
5. ID.; ID.; ID.; AUTOMATIC AND PERPETUAL
DISQUALIFICATION FOR VIOLATION OF MUNICIPAL
ORDINANCES WITH NOMINAL FINE; UNREASONABLE. —
Automatic and perpetual disqualification of a
person who in one unguarded moment threw a
cigarette butt on the street, spat in public,
deposited house garbage in a market receptacle
for garbage, exceeded the speed limit for
vehicles, blew his car horn near a school or
hospital, or, as in this case, jaywalked, and
who has paid the fine imposed by ordinance as
commensurate deterrence for the act, would be
unreasonable, if not oppressive.
6. ADMINISTRATIVE LAW; CIVIL SERVICE
SYSTEM; PERIOD FOR ACTION ON APPOINTMENT
PAPERS UNDER THE CIVIL SERVICE ACT; EFFECT OF
INACTION; CASE AT BAR. — Under Rule VI of
Civil Service Rules and Regulations, the
respondent Commissioner had 180 days from
receipt of the appointment papers to act on
them. Inaction means the appointment is
approved as properly made. The papers were
returned by the Commissioner more than a year
after he received them. The appointment, not
having any defect of record except the matter
in issue in this case, must be deemed complete
and properly made after the 180 days period.
7. ID.; ID.; ILLEGAL AND INVALID REMOVAL;
RIGHTS OF THE APPOINTEE. — Where the
termination of the petitioner's services was
an illegal and invalid removal, the petitioner
should be reinstated, assuming he meets the
physical and other requirements of the
Integrated National Police under the new
legislation and procedures governing police
forces. In addition to being paid any salaries
for services actually rendered but not paid,
the petitioner, following the formula in cases
of illegal dismissals is entitled to five
years backpay. (Cristobal v. Melchor, 78 SCRA
175, 187).
D E C I S I O N
GUTIERREZ, JR., J p:
All persons appointed to positions covered by
the civil service law are required by
regulation to accomplish an information sheet
on the prescribed form. The information sheet
provides in summary outline the personal date,
eligibilities, education, experiences, and
other qualifications of the appointee.
Included in the information sheet is a query
on any criminal records of the applicant,
which in later versions of the prescribed form
asks if he has ever been arrested, indicted,
or convicted of any crime or accused in any
administrative proceeding. LLpr
The issue in this petition for review is
whether or not a person otherwise qualified
but who admits having violated a city
ordinance on jaywalking and another ordinance
requiring a cochero to occupy only the seat
intended for a cochero in a calesa is
disqualified for appointment to the Quezon
City Police Force.
Petitioner Ernesto M. de Guzman was appointed
patrolman in the Quezon City Police Department
by Mayor Norberto S. Amoranto on August 16,
1965. He was a civil service eligible having
taken and passed the civil service patrolman's
examination given on November 24, 1962. He had
also passed the usual character investigation
conducted before appointment. As a newly
appointed patrolman, the petitioner went
through and successfully completed the police
training course.
On March 21, 1966, the petitioner's
appointment was forwarded to the Commissioner
of Civil Service. On August 18, 1966, or a
year after the appointment and with no action
on the appointment papers being taken by the
respondent commissioner, the respondents city
treasurer and city auditor stopped the payment
of the petitioner's salaries.
On May 12, 1967, the respondent commissioner
returned the petitioner's appointment papers,
without action thereon, to the respondent
mayor on the ground that Mr. de Guzman was
disqualified for appointment under Republic
Act No. 4864, the Police Act of 1966, which
provides:
"'SEC. 9. General Qualifications of
Appointment. — No person shall be appointed to
a local police agency unless he possesses the
following qualifications:
xxx xxx
xxx
"(5) He must have no criminal record.' (SEC.
9(5), Police Act of 1966)"
The above finding was based solely on the
petitioner's own answer to question No. 15 in
the information sheet:
"15. Have you been accused, indicted, or
tried for the violation of any law, ordinance,
or regulation, before any court or tribunal?
The answer given by the petitioner was:
"Yes. Jaywalking — paid fine P5.50; Municipal
O.d. (Mla.) Sect 1187 (cochero) paid fine of
P5.00."
On September 7, 1967, the petitioner filed a
petition for certiorari and mandamus with
preliminary mandatory injunction with the
Court of First Instance of Rizal, Branch V at
Quezon City. prcd
On May 29, 1969, the lower court rendered a
decision dismissing the petition. According to
the court, the requirement of "no criminal
record" means without any criminal record and
makes no distinction whether an act violates a
state law or only a municipal or city
ordinance.
The issue posed in this petition is presented
by Mr. de Guzman, thus:
"Whether or not violations and/or convictions
of municipal ordinances, one, for 'Jaywalking'
and the other, Manila Municipal Ordinance No.
1187, prohibiting the cochero from 'occupying
any part of the vehicle except the seat
reserved for him', constitute 'CRIMINAL
RECORD' to disqualify the petitioner under the
Police Act of 1966 (Rep. Act No. 4864) from
appointment to the Quezon City Police Force."
We are constrained to grant the petition.
The former Civil Service Act, Republic Act No.
2260, as amended, stated in its Section 23
that opportunity for government employment
shall be open to all qualified citizens and
positive efforts shall be exerted to attract
the best qualified to enter the service. The
same policy is reiterated in the Civil Service
Decree, Presidential Decree No. 807, at
Section 19, which superseded Republic Act No.
2260.
The requirements for applicants to a
policeman's position may be quite stringent
but the basic policy of attracting the best
qualified is not served by automatically
excluding any person who in an absent minded
mood or while hurrying to an urgent
appointment may unwittingly have crossed a
street or stepped down from the curb in
violation of a Jaywalking ordinance. The same
thing is true of a person who may have worked
his way through college as a cochero and, who,
pitying his horse struggling up an incline or
a bridge, leaves his seat to stand aft and
forward to balance the calesa load or who,
alone on his way home, sits in the seat
intended for passengers only to be fined for
violating an obscure municipal ordinance.
prLL
The petitioner cites decisions of American
courts in support of his arguments:
"'By weight of authority, the violation of a
municipal ordinance, enacted by a city under
legislative authority, as in the case of
ordinances prohibiting and punishing gaming
and the keeping of gaming houses, etc., is not
a crime, in the proper sense of the term, for
such ordinances are not public laws, and the
punishment for their violation is imposed by
the state.' (Withers v. State, 36 Ala. 252;
City of Greeb v. Hamman, 12 Cole., 94, 20 Pac.
1; Williams v. Augusta, 4 Ga. 509) as cited on
p. 7, Francisco's Revised Penal Code, Book
One, 3rd Edition."
xxx xxx
xxx
"'The common-law definition of a 'crime' as
given by Blackstone, is 'an act committed or
omitted in violation of a public law,'. . .
giving the accused the right to be heard in
all 'criminal prosecutions' relates
exclusively to prosecution for violation of
public laws of the state, and a city ordinance
is not a public law of the state, but a local
law of the particular corporation, made for
its internal practice and good government.
(Castillo [should be Costelo] v. Feagin, 50
South 134, 135, 162 Ala. 191)"
There are other federal decisions which state
that prosecutions to enforce penalties for
violations of municipal ordinances are not
criminal prosecutions and the offenses against
these ordinances are not criminal cases. (City
of Mobile v. McCowan, Oil Co., 148 So. 402,
405; City of Mankato v. Arnold, 30 N.W. 305,
306; Village of Litchville v. Hanson, 124 N.W.
1119, 1120). LexLib
We do not go so far as to sustain the
arguments that only violations of statutes
enacted by the national legislature can give
rise to "crimes" or "a criminal record" as
these terms are used in our law on local
governments or the law of public officers.
However, we take cognizance of the distinction
in the law of municipal corporations which
distinguishes between acts not essentially
criminal relating to municipal regulations for
the promotion of peace, good order, health,
safety, and comfort of residents and acts
intrinsically punishable as public offenses.
(See cases cited in Dillon, A Treatise On The
Law of Municipal Corporations, Vol. II, 5th
Edition, Sections 745, 746, and 749.) A
penalty imposed for the breach of a municipal
regulation is not necessarily an exercise of
the sovereign authority, to define crimes and
provide for their punishment, delegated to a
local government. In many cases, the penalty
is merely intended not to render the ordinance
inoperative or useless.
The phrase "criminal record" governing
qualifications for appointments could not have
been intended by the legislature to
automatically cover every violation of a
municipal or city ordinance carrying a
sanction of a nominal fine to enforce it. A
violation of a municipal ordinance to qualify
as a "crime" must involve at least a certain
degree of evil doing, immoral conduct,
corruption, malice, or want of principles
reasonably related to the requirements of the
public office.
Automatic and perpetual disqualification of a
person who in one unguarded moment threw a
cigarette butt on the street, spat in public,
deposited house garbage in a market receptacle
for garbage, exceeded the speed limit for
vehicles, blew his car horn near a school or
hospital, or, as in this case, jaywalked, and
who has paid the fine imposed by ordinance as
commensurate deterrence for the act, would be
unreasonable, if not oppressive.
Respondent Subido should have gone deeper into
the nature of the petitioner's acts instead of
taking every "Yes" answer in Question 15 of
the information sheet as an automatic
disqualification. Under Rule VI of the Civil
Service Rules and Regulations, the respondent
commissioner had 180 days from receipt of the
appointment papers to act on them. Inaction
means the appointment is approved as properly
made. The papers were returned more than a
year by the commissioner after he received
them. The appointment, not having any defect
of record except the matter in issue in this
case, must be deemed complete and properly
made after the 180 days period. The
termination of the petitioner's services was,
therefore, an illegal and invalid removal. The
petitioner should be reinstated, assuming he
meets the physical and other requirements of
the Integrated National Police under the new
legislation and procedures governing police
forces. In addition to being paid any salaries
for services actually rendered but not paid,
the petitioner, following the formula in cases
of illegal dismissals is entitled to five
years backpay (Cristobal v. Melchor, 78 SCRA
175, 187). LibLex
WHEREFORE, the decision of the court a quo is
set aside. The Integrated National Police and
the respondent officials are directed to
reinstate the petitioner to the Quezon City
Police Force provided he meets the age,
physical, and other qualifications and
eligibilities for patrolman under present
legislation and rules. The city government of
Quezon City and the incumbent Mayor,
Treasurer, and Auditor of the city are ordered
to pay the petitioner any unpaid salaries and
allowances for services actual]y rendered and
five years backpay from the date his services
were actually terminated.
SO ORDERED.
DE LA TORRE vs COMELEC
258 SCRA 483, 1996
Facts: Petitioner Rolando P. Dela Torre was
disqualified by the Commission on Elections
from running for the position of Mayor of
Cavinti, Laguna in the May 8, 1995 elections.
The ground cited by the COMELEC was Section
40(a) of the Local Government Code of 1991.
Said section provides that those sentenced by
final judgement for an offense involving moral
turpitude or for an offense punishable by one
(1) year or more imprisonment within two (2)
years after serving sentence are disqualified
from running for any elective local position.
It was established by the COMELEC that the
petitioner was found guilty by the Municipal
Trial Court for violation of the Anti-Fencing
Law. It was contended by the petitioner that
Section 40(a) is not applicable to him because
he was granted probation by the MTC.
Issues:
1. Whether or not the crime of fencing
involves moral turpitude.
2. Whether or not a grant of probation affects
Section 40(a)’s applicability.
Held: The Supreme Court held that actual
knowledge by the “fence” of the fact that
property received is stolen displays the same
degree of malicious deprivation of one’s
rightful property as that which animated the
robbery or theft which, by their very nature,
are crimes of moral turpitude. Anent the
second issue, suffice it to say that the legal
effect of probation is only to suspend the
execution of the sentence. Petitioner’s
conviction of fencing which already declared
as a crime of moral turpitude and thus falling
squarely under the disqualification found in
Section 40(a), subsists and remains totally
unaffected notwithstanding the grant of
probation.
REGINA ONGSIAKO REYES, Petitioner, v.
COMMISSION ON ELECTIONS AND JOSEPH SOCORRO B.
TAN, Respondents.
G.R. No. 207264, June 25, 2013
Facts:
The petitioners assail through a Petition for
Certiorari with prayer for Temporary
Restraining Order and/or Preliminary
Injunction resolution of the Commission on
Election ordering the cancellation of the
Certificate of Candidacy of petitioner for the
position of the Representative of the lone
district of Marinduque.
On October 31. 2012, Joseph Socorro Tan filed
with the Comelec an Amended Petition to Deny
Due Course or to Cancel the Certificate of
Candidacy of Regina Ongsiako Reyes, the
petitioner, on the ground that it contained
material representations.On March 27, 2013,
the COMELEC cancelled the certificate of
candidacy of the petitioner. She filed an MR
on April 8, 2013. On May 14, 2013, COMELEC en
banc denied her MR.
However, on May 18, 2013, she was proclaimed
winner of the May 13, 2013 Elections. On June
5, 2013, COMELEC declared the May 14, 2013
Resolution final and Executory. On the same
day, petitioner took her oath of office before
Feliciano Belmonte, the Speaker of the House
of Representatives. She has yet to assume
office at that time, as her term officially
starts at noon of June 30, 2013.According to
petitioner, the COMELEC was ousted of its
jurisdiction when she was duly proclaimed20
because pursuant to Section 17, Article VI of
the 1987 Constitution, the HRET has the
exclusive jurisdiction to be the “sole judge
of all contests relating to the election,
returns and qualifications” of the Members of
the House of Representatives.
Issue:
Whether or not COMELEC has jurisdiction over
the petitioner who is proclaimed as winner and
who has already taken her oath of office for
the position of member of the House of
Representative of Marinduque.
Held:
Yes, COMELEC retains jurisdiction because the
jurisdiction of the HRET begins only after the
candidate is considered a Member of the House
of Representatives, as stated in Section 17,
Article VI of the 1987 Constitution. For one
to be considered a Member of the House of
Representatives, there must be a concurrence
of these requisites: (1) valid proclamation;
(2) proper oath, and (3) assumption of office.
Thus the petitioner cannot be considered a
member of the HR yet as she has not assumed
office yet. Also, the 2nd requirement was not
validly complied with as a valid oath must be
made (1) before the Speaker of the House of
Representatives, and (2) in open session.
Here, although she made the oath before
Speaker Belmonte, there is no indication that
it was made during plenary or in open session
and, thus, it remains unclear whether the
required oath of office was indeed complied.
Furthermore, petition for certiorari will
prosper only if grave abuse of discretion is
alleged and proved to exist. For an act to be
struck down as having been done with grave
abuse of discretion, the abuse of discretion
must be patent and gross.
Here, this Court finds that petitioner failed
to adequately and substantially show that
grave abuse of discretion exists.
LINGATING VS COMELEC
Facts:
During the first term of Mayor Sulong, an
administrative complaint was filed against him
and several other individuals for Dishonesty,
Falsification of Public Documents,
Malversation of Public Funds and violation RA
No. 3019. On February 4 1992, the Sangguniang
Panlalawigan of Zamboanga Del Sur found him
guilty of the charges and ordered his removal
from office. Mayor Sulong filed a motion for
reconsideration and/or notice of appeal
shortly thereafter. The Sanggunian ordered
the complainant in AC No 12-91 to comment.
Pending appeal, then Vice‐Mayor Vicente
Imbing took his oath and assumed the office
of Mayor of Lapuyan on March 3, 1992
pursuant to Section 68 of the Local Gov't
Code which allows for the execution pending
appeal of administrative decisions. From
February 1992 to August 2001, no comment was
ever filed by the complainant in AC No 12-91
nor has the Sanggunian resolved Sulong’s
MR/Appeal.
In the May 2001 Elections, Lingating and
Sulong both ran for the position of Mayor of
Lapuyan. On May 3, 2001, Lingating file a
petition for disqualification of Sulong on the
ground that the latter is disqualified from
running for any elective local position
having been removed from office during his
first term (1988-1991) as a result of an
administrative case (AC No 12-91) pursuant to
Section 40(b) of the Local Government Code.
Respondent Sulong denied that the decision in
AC No 12-91 had ever become final and
executory since up to the filing of the
disqualification case, no comment has been
filed nor has the appeal been resolved. After
the parties had filed their memoranda, the
case was submitted for resolution. The
COMELEC, however, was unable to render
judgment before the elections of May 14, 2001,
where Sulong was elected and proclaimed Mayor
of Lapuyan.
In a resolution dated August 1, 2001, the
COMELEC declared respondent Cesar B. Sulong
disqualified adhering to section 40(b) of the
Local Government Code. Respondent Sulong
filed an MR arguing that the decision in AC
No. 12-91 has not become final and executory;
that at no time had he been removed by virtue
of the said decision, and that the issue
was moot and academic having been "overtaken
by the local elections of May 11, 1992."
Lingating filed an opposition to the MR
contending that the fact that Sulong was
succeeded by Vice Mayor Imbing was proof that
AC No. 12-91 had indeed become final.
Lingating also prayed that he be installed as
Mayor of Lapuyuan in view of Sulong's
disqualification.
The COMELEC First Division denied Lingating’s
motion on the ground that the disqualification
of an elected candidate does not entitle the
candidate who obtained the second highest
number of votes to occupy the office vacated.
Lingating then filed a motion for
reconsideration of this order.
The COMELEC en banc reversed the decision of
the first division, citing Aguinaldo v.
COMELEC that re-election renders an
administrative case moot and academic. It also
ruled that respondent Sulong was not entitled
to occupy the office thus vacated.
Lingating contends that the COMELEC en banc
erred in applying the ruling in Aguinaldo vs.
COMELEC. Instead, Lingating argues that the
applicable case is Reyes v. COMELEC where the
court held that an elective local executive
officer, who is removed before the expiration
of the term for which he was elected, is
disqualified from being a candidate for a
local elective position under Section 40(b) of
the LGC. Hence, this petition.
Issue:
Whether or not Sumulong is disqualified to run
for local election
Held:
The filing of motion for reconsideration by
Sulong prevented the decision of Sangguniang
Panlalawigan from becoming final. There is
thus no decision finding Sulong guilty to
speak of. Neither can the succession of the
then vice-mayor of Lapuyan, Vicente Imbing, to
the office of mayor be considered proof that
the decision in AC No. 12-91 had become final
because it appears to have been made pursuant
to Sec 68 [16] of the Local Government Code,
which makes decisions in administrative cases
immediately executory.
Aguinaldo and Reyes Cases are inapplicable. In
Aguinaldo v COMELEC, the court held that
removal cannot extend beyond the term during
which the alleged misconduct was committed. If
a public official is not removed before his
term of office expires, he can no longer be
removed if he is thereafter re-elected for
another term. However, Aguinaldo is not
applicable as at the time the case was
decided, there was no provision similar to
40(b) of the LGC and hence, cannot be given
retroactive effect. Neither is Reyes vs.
COMELEC applicable as AC No. 12-91 remains to
this day, not final. (G.R. No. 153475,
November 13, 2002)
MERCADO VS MANZANO
FACTS:
Petitioner Ernesto Mercado and Eduardo Manzano
were both candidates for Vice-Mayor of Makati
in the May 11, 1998 elections.
Based on the results of the election, Manzano
garnered the highest number of votes. However,
his proclamation was suspended due to the
pending petition for disqualification filed by
Ernesto Mercado on the ground that he was not
a citizen of the Philippines but of the United
States.
From the facts presented, it appears that
Manzano is both a Filipino and a US citizen.
The Commission on Elections declared Manzano
disqualified as candidate for said elective
position.
However, in a subsequent resolution of the
COMELEC en banc, the disqualification of the
respondent was reversed. Respondent was held
to have renounced his US citizenship when he
attained the age of majority and registered
himself as a voter in the elections of 1992,
1995 and 1998.
Manzano was eventually proclaimed as the Vice-
Mayor of Makati City on August 31, 1998.
Thus the present petition.
ISSUE:
Whether or not a dual citizen is disqualified
to hold public elective office in the
philippines.
RULING:
The court ruled that the phrase "dual
citizenship" in R.A. 7160 Sec. 40 (d) and R.A.
7854 Sec. 20 must be understood as referring
to dual allegiance. Dual citizenship is
different from dual allegiance. The former
arises when, as a result of the application of
the different laws of two or more states, a
person is simultaneously considered a national
by the said states. Dual allegiance on the
other hand, refers to a 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
a result of an individual's volition. Article
IV Sec. 5 of the Constitution provides "Dual
allegiance of citizens is inimical to the
national interest and shall be dealt with by
law."
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.
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.
When 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.
The court ruled that the filing of certificate
of candidacy of respondent sufficed to
renounce his American citizenship, effectively
removing any disqualification he might have as
a dual citizen. 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 respondent’s 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, the court 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.
The petition for certiorari is DISMISSED for
lack of merit.
CAASI vs. COMELEC
191 SCRA 229, 1990
Facts: Private respondent Merito Miguel was
elected as municipal mayor of Bolinao,
Pangasinan during the local elections of
January 18, 1988. His disqualification,
however, was sought by herein petitioner,
Mateo Caasi, on the ground that under Section
68 of the Omnibus Election Code private
respondent was not qualified because he is a
green card holder, hence, a permanent resident
of the United States of America, not of
Bolinao.
Issues:
1. Whether or not a green card is proof that
the holder is a permanent resident of the
United States.
2. Whether respondent Miguel had waived his
status as a permanent resident of or immigrant
to the U.S.A. prior to the local elections on
January 18, 1988.
Held: The Supreme Court held that Miguel’s
application for immigrant status and permanent
residence in the U.S. and his possession of a
green card attesting to such status are
conclusive proof that he is a permanent
resident of the U.S. despite his occasional
visits to the Philippines. The waiver of such
immigrant status should be as indubitable as
his application for it. Absent clear evidence
that he made an irrevocable waiver of that
status or that he surrendered his green card
to the appropriate U.S. authorities before he
ran for mayor of Bolinao in the local election
on January 18, 1988, the Court’s conclusion is
that he was disqualified to run for said
public office, hence, his election thereto was
null and void.
EUSEBIO EUGENIO K. LOPEZ, PETITIONER, VS.
COMMISSION ON ELECTIONS AND TESSIE P.
VILLANUEVA, RESPONDENTS.
R E S O L U T I O N
A Filipino-American or any dual citizen cannot
run for any elective public position in the
Philippines unless he or she personally swears
to a renunciation of all foreign citizenship
at the time of filing the certificate of
candidacy.
FACTS:
Petitioner Lopez, a dual citizen, was a
candidate for the position of Chairman of
Barangay Bagacay, San Dionisio, Iloilo City
held on October 29, 2007, who eventually
emerged as the winner. On October 25, 2007,
respondent Villanueva filed a petition before
the Provincial Election Supervisor of the
Province of Iloilo, praying for the
disqualification of Lopez (American citizen),
hence, ineligible from running for any public
office. Lopez argued that he is a Filipino-
American, by virtue of the Citizenship
Retention and Re- acquisition Act of 2003.He
said, he possessed all the qualifications to
run for Barangay Chairman. On February 6,
2008, COMELEC issued the Resolution granting
the petition for disqualification of Lopez
from running as Barangay Chairman. COMELEC
said, to be able to qualify as a candidate in
the elections, Lopez should have made a
personal and sworn renunciation of any and all
foreign citizenship. His motion for
reconsideration having been denied, Lopez
resorted to petition for certiorari, imputing
grave abuse of discretion on the part of the
COMELEC for disqualifying him from running and
assuming the office of Barangay Chairman.
RULING:
SC dismissed the petition. The COMELEC
committed no grave abuse of discretion in
disqualifying petitioner as candidate for
Chairman in the Barangay elections of
2007Lopez was born a Filipino but he
deliberately sought American citizenship and
renounced his Filipino citizenship. He later
on became a dual citizen by re-acquiring
Filipino citizenship.
R.A. No. 9225 expressly provides for the
conditions before those who re-acquired
Filipino citizenship may run for a public
office in the Philippines. Section 5 of the
said law states:
Section 5. Civil and Political Rights and
Liabilities. - Those who retain or re-acquire
Philippine citizenship under this Act shall
enjoy full civil and political rights and be
subject to all attendant liabilities and
responsibilities under existing laws of the
Philippines and the following conditions:(2)
Those seeking elective public office in the
Philippines shall meet the qualification for
holding such public office as required by the
Constitution and existing laws and, at the
time of the filing of the certificate of
candidacy, make a personal and sworn
renunciation of any and all foreign
citizenship before any public officer
authorized to administer an oath. (Emphasis
added)Lopez was able to regain his Filipino
Citizenship by virtue of the Dual Citizenship
Law when he took his oath of allegiance before
the Vice Consul of the Philippine Consulate
General's Office in Los Angeles, California,
the same is not enough to allow him to run for
a public office. Lopez's failure to renounce
his American citizenship as proven by the
absence of an affidavit that will prove the
contrary leads this Commission to believe that
he failed to comply with the positive mandate
of law.
Under the law, for the renunciation to be
valid, it must be contained in an affidavit
duly executed before an officer of law who is
authorized to administer an oath. The affiant
must state in clear and unequivocal terms that
he is renouncing all foreign citizenship for
it to be effective. While it is true that
petitioner won the elections, took his oath
and began to discharge the functions of
Barangay Chairman, his victory cannot cure the
defect of his candidacy. Garnering the most
number of votes does not validate the election
of a disqualified candidate because the
application of the constitutional and
statutory provisions on disqualification is
not a matter of popularity.
MARCOS VS COMELEC
FACTS:
Imelda, a little over 8 years old, in or about
1938, established her domicile in Tacloban,
Leyte where she studied and graduated high
school in the Holy Infant Academy from 1938 to
1949. She then pursued her college degree,
education, in St. Paul’s College now Divine
Word University also in Tacloban.
Subsequently, she taught in Leyte Chinese
School still in Tacloban. She went to manila
during 1952 to work with her cousin, the late
speaker Daniel Romualdez in his office in the
House of Representatives. In 1954, she
married late President Ferdinand Marcos when
he was still a Congressman of Ilocos Norte and
was registered there as a voter. When Pres.
Marcos was elected as Senator in 1959, they
lived together in San Juan, Rizal where she
registered as a voter. In 1965, when Marcos
won presidency, they lived in Malacanang
Palace and registered as a voter in San Miguel
Manila. She served as member of the Batasang
Pambansa and Governor of Metro Manila during
1978.
Imelda Romualdez-Marcos was running for the
position of Representative of the First
District of Leyte for the 1995 Elections.
Cirilo Roy Montejo, the incumbent
Representative of the First District of Leyte
and also a candidate for the same position,
filed a “Petition for Cancellation and
Disqualification" with the Commission on
Elections alleging that petitioner did not
meet the constitutional requirement for
residency. The petitioner, in an honest
misrepresentation, wrote seven months under
residency, which she sought to rectify by
adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy
filed on March 29, 1995 and that "she has
always maintained Tacloban City as her
domicile or residence. She arrived at the
seven months residency due to the fact that
she became a resident of the Municipality of
Tolosa in said months.
ISSUE: Whether petitioner has satisfied the
1year residency requirement to be eligible in
running as representative of the First
District of Leyte.
HELD:
Residence is used synonymously with domicile
for election purposes. The court are in favor
of a conclusion supporting petitoner’s claim
of legal residence or domicile in the First
District of Leyte despite her own declaration
of 7 months residency in the district for the
following reasons:
1. A minor follows domicile of her parents.
Tacloban became Imelda’s domicile of origin by
operation of law when her father brought them
to Leyte;
2. Domicile of origin is only lost when there
is actual removal or change of domicile, a
bona fide intention of abandoning the former
residence and establishing a new one, and acts
which correspond with the purpose. In the
absence and concurrence of all these, domicile
of origin should be deemed to continue.
3. A wife does not automatically gain the
husband’s domicile because the term
“residence” in Civil Law does not mean the
same thing in Political Law. When Imelda
married late President Marcos in 1954, she
kept her domicile of origin and merely gained
a new home and not domicilium necessarium.
4. Assuming that Imelda gained a new domicile
after her marriage and acquired right to
choose a new one only after the death of Pres.
Marcos, her actions upon returning to the
country clearly indicated that she chose
Tacloban, her domicile of origin, as her
domicile of choice. To add, petitioner even
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. She even kept
close ties by establishing residences in
Tacloban, celebrating her birthdays and other
important milestones.
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.
NATIONAL AMNESTY COMMISSION, PETITIONER, VS.
COMMISSION ON AUDIT, JUANITO G. ESPINO,
DIRECTOR IV, NCR, COMMISSION ON AUDIT, AND
ERNESTO C. EULALIA, RESIDENT AUDITOR, NATIONAL
AMNESTY COMMISSION. RESPONDENTS.
FACTS:
Petitioner National Amnesty Commission (NAC)
is a government agency created on March 25,
1994 by then President Fidel V. Ramos through
Proclamation No. 347. The NAC is tasked to
receive, process and review amnesty
applications. It is composed of seven members:
a Chairperson, three regular members appointed
by the President, and the Secretaries of
Justice, National Defense and Interior and
Local Government as ex officio members.
It appears that after personally attending the
initial NAC meetings, the three ex officio
members turned over said responsibility to
their representatives who were paid honoraria
beginning December 12, 1994. However, on
October 15, 1997, NAC resident auditor Eulalia
disallowed on audit the payment of honoraria
to these representatives amounting to P255,750
for the period December 12, 1994 to June 27,
1997, pursuant to COA Memorandum No. 97-038.
ISSUE:
Whether representatives can be entitled to
payment intended for ex-officio members
RULING:
The representatives in fact assumed their
responsibilities not by virtue of a new
appointment but by mere designation from the
ex officio members who were themselves also
designated as such.
There is a considerable difference between an
appointment and designation. An appointment is
the selection by the proper authority of an
individual who is to exercise the powers and
functions of a given office; a designation
merely connotes an imposition of additional
duties, usually by law, upon a person already
in the public service by virtue of an earlier
appointment.
Designation does not entail payment of
additional benefits or grant upon the person
so designated the right to claim the salary
attached to the position. Without an
appointment, a designation does not entitle
the officer to receive the salary of the
position.
In this petition for quo warranto, Ramon P.
Binamira seeks reinstatement to the office of
General Manager of the Philippine Tourism
Authority from which he claims to have been
removed without just cause in violation of his
security of tenure.
BINAMIRA VS GARRUCHO
Facts:
In pursuant to a memorandum addressed to him
by the Minister of Tourism, the petitioner
assumed office on on April 7, 1986.
On April 10, 1986, Minister Gonzales sought
approval from President Aquino of the
composition of the Board of Directors of the
PTA, which included Binamira as Vice-Chairman
in his capacity as General Manager, approved
by the President on the same date.
Binamira claims that since assuming office, he
had discharged the duties of PTA General
Manager and Vice-Chairman of its Board of
Directors.
On January 2, 1990, his resignation was
demanded by respondent Garrucho as the new
Secretary of Tourism.
On January 4, 1990, President Aquino sent
respondent Garrucho a memorandum designating
him concurrently as General Manager, effective
immediately, until the President can appoint a
person to serve in the said office in a
permanent capacity.
Garrucho having taken over as General Manager
of the PTA in accordance with this memorandum,
the petitioner filed this action against him
to question his title. Subsequently, while his
original petition was pending, Binamira filed
a supplemental petition alleging that on April
6, 1990, the President of the Philippines
appointed Jose A. Capistrano as General
Manager of the Philippine Tourism Authority.
Capistrano was impleaded as additional
respondent.
Issue:
Whether or not, the petitioner was illegally
removed from his designation.
Whether or not , petitioner should be
reinstatement to the office of General Manager
of the Philippine Tourism Authority
Held:
Section 23-A of P.D. 564, which created the
Philippine Tourism Authority, provides as
follows:
SECTION 23-A. General Manager-Appointment and
Tenure. — The General Manager shall be
appointed by the President of the Philippines
and shall serve for a term of six (6) years
unless sooner removed for cause; Provided,
That upon the expiration of his term, he shall
serve as such until his successor shall have
been appointed and qualified. (As amended by
P.D. 1400)
Where the person is merely designated and not
appointed, the implication is that he shall
hold the office only in a temporary capacity
and may be replaced at will by the appointing
authority. In this sense, the designation is
considered only an acting or temporary
appointment, which does not confer security of
tenure on the person named.
The petitioner cannot sustain his claim that
he has been illegally removed. The reason is
that the decree clearly provides that the
appointment of the General Manager of the
Philippine Tourism Authority shall be made by
the President of the Philippines, not by any
other officer. Appointment involves the
exercise of discretion, which because of its
nature cannot be delegated. Legally speaking,
it was not possible for Minister Gonzales to
assume the exercise of that discretion as an
alter ego of the President.
An officer to whom a discretion is entrusted
cannot delegate it to another, the presumption
being that he was chosen because he was deemed
fit and competent to exercise that judgment
and discretion, and unless the power to
substitute another in his place has been given
to him, he cannot delegate his duties to
another.
In those cases in which the proper execution This was accepted by the President, “with deep
of the office requires, on the part of the regrets.”
officer, the exercise of judgment or
discretion, the presumption is that he was The Secretary of Labor requested him to turn
chosen because he was deemed fit and competent over his office to the Deputy Administrator as
to exercise that judgment and discretion, and, officer-in-charge.
unless power to substitute another in his
place has been given to him, he cannot he protested his replacement and declared he
delegate his duties to another. “ was not surrendering his office because his
resignation was not voluntary but filed only
The doctrine presumes the acts of the in obedience to the President’s directive.
Department Head to be the acts of the
President of the Philippines when “performed On the same date, respondent Jose N. Sarmiento
and promulgated in the regular course of was appointed Administrator of the POEA, vice
business,” which was true of the designation the petitioner.
made by Minister Gonzales in favor of the
Achacoso was informed thereof the following
petitioner. But it also adds that such acts
day and was again asked to vacate his office.
shall be considered valid only if not
‘disapproved or reprobated by the Chief
He filed a motion for reconsideration but this
Executive,” as also happened in the case at
was denied. He then came to this Court for
bar.
relief.
With these rulings, the petitioner’s claim of
The petitioner invokes security of tenure
security of tenure must perforce fall to the
against his claimed removal without legal
ground. His designation being an unlawful
cause. Achacoso contends that he is a member
encroachment on a presidential prerogative, he
of the Career Service of the Civil Service and
did not acquire valid title thereunder to the
so enjoys security of tenure, which is one of
position in question. Even if it be assumed
the characteristics of the Career Service as
that it could be and was authorized, the
distinguished from the Non-Career Service. 1
designation signified merely a temporary or
Claiming to have the rank of undersecretary,
acting appointment that could be legally
he says he comes under Article IV, Section 5
withdrawn at pleasure, as in fact it was
of P.D. 807, otherwise known as the Civil
(albeit for a different reason).i•t•c-aüsl In
Service Decree, which includes in the Career
either case, the petitioner’s claim of
Service:
security of tenure must be rejected.
3.Positions in the Career Executive Service;
The Court sympathizes with the petitioner, who
namely, Undersecretary, Assistant Secretary,
apparently believed in good faith that he was
Bureau Director, Assistant Bureau Director,
being extended a permanent appointment by the
Regional Director, Assistant Regional
Minister of Tourism. After all, Minister
Director, Chief of Department Service and
Gonzales had the ostensible authority to do so
other officers of equivalent rank as may be
at the time the designation was made. This
identified by the Career Executive Service
belief seemed strengthened when President
Board, all of whom are appointed by the
Aquino later approved the composition of the
President.
PTA Board of Directors where the petitioner
was designated Vice-Chairman because of his His argument is that in view of the security
position as General Manager of the PTA. of tenure enjoyed by the above-named
However, such circumstances fall short of the officials, it was “beyond the prerogatives of
categorical appointment required to be made by the President” to require them to submit
the President herself, and not the Minister of courtesy resignations. Such courtesy
Tourism, under Sec. 23 of P.D. No. 564. resignations, even if filed, should be
disregarded for having been submitted “under
The Supreme Court rule therefore that the
duress,” as otherwise the President would have
petitioner never acquired valid title to the
the power to remove career officials at
disputed position and so has no right to be
pleasure, even for capricious reasons
reinstated as General Manager of the
Philippine Tourism Authority. The respondents assert he is not entitled to
the guaranty because he is not a career
WHEREFORE, the petition is DISMISSED, with
official (the petitioner did not possess the
costs against the petitioner.
necessary qualifications when he was appointed
Administrator of the POEA in 1987).
ACHACOSO VS MACARAIG
ISSUE: WON Achacoso is protected by the
FACTS: Tomas D. Achacoso was appointed
security of tenure clause
Administrator of the Philippine Overseas
Employment Administration
HELD: NO. The Court finds for the respondent.
In compliance with a request addressed by the
CONSTITUTIONAL LAW; BILL OF RIGHTS; SECURITY
President of the Philippines to “all
OF TENURE; PERMANENT APPOINTMENT ISSUED ONLY
Department Heads, Undersecretaries, Assistant
TO PERSONS QUALIFIED. — A permanent
Secretaries, Bureau Heads,” and other
appointment can be issued only “to a person
government officials, he filed a courtesy
who meets all the requirements for the
resignation.
position to which he is being appointed,
including the appropriate eligibility
prescribed.”
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.
PERSONS APPOINTED WITHOUT THE REQUISITE
QUALIFICATION DEEMED IN ACTING CAPACITY. — 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.
TEMPORARY APPOINTMENT; PURPOSE. — 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.ID.; ID.; ID.; ID.; CONDITION IMPOSED ON
APPOINTEE. — 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.
EXPIRATION OF TERM; METHOD OF TERMINATING
TEMPORARY EMPLOYMENT. — 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 before the expiration of his term.
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.
LUEGO CASE (143 SCRA 327) NOT APPLICABLE TO
CASE AT BAR. — The case of Luego v. Civil
Service Commission 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 v.
Intermediate Appellate Court, Palma-Fernandez
v. De la Paz, and Dario v. Mison, are also not
pertinent because they also involved permanent
appointees who could not be removed because of
their security of tenure.
FELIX VS. BUENASEDA G.R. No. 109704 January
17, 1995
FACTS: This is a petition assailing the
petitioner’s dismissal as Medical Specialist I
of the National Center for Mental Health as
illegal and violative of the constitutional
provision on security of tenure. Petitioner
joined the NCMH as a Resident Physician in
June1979. Shortly, he was promoted as Senior
Resident Physician until the Ministry of
Health reorganized the NCMH pursuant to E.O.
119. Under the reorganization, he was
appointed to the position of Senior Resident
Physician in a temporary capacity. On August
1988, he was elevated to the position of
Medical Specialist I (Temporary Status) which
was renewed the following year. The Dept. of
Health issued Department Order No. 347 which
required board certification as prerequisite
for renewal of specialist positions in various
medical centers and it also extend
appointments of Medical Specialist positions
in cases where the termination of medical
specialist who failed to meet the requirements
for board certification. On August 20, 1991,
after reviewing petitioner's service record,
non-renewal of petitioner’s appointment as
Medical Specialist I was recommended. He was,
however, allowed to continue in the service,
and receive his salary, allowances and other
benefits even after being informed of the
termination of his appointment. Soon, he was
advised by the hospital authorities to vacate
his cottage. The petitioner filed a petition
with the Merit System Protection Board
alleging harassment by respondents; however,
it was later dismissed for lack of merit. Said
decision was appealed to the Civil Service
Commission which dismissed the same including
the Motion for Reconsideration the petitioner
has filed after which brought this appeal.
ISSUE: Whether or not the petitioner was
illegally dismissed from his position and that
it is not a violative of his constitutional
right of security of tenure.
RULING: NO. The petitioner was not illegally
dismissed. The Solicitor General is correct in
contending that the petitioner’s temporary
appointment after the reorganization were
valid and did not violate his constitutional
right of security of tenure. Petitioner is
guilty of estoppels or laches. Stringent
standards and requirements for renewal of
specialist-rank positions or for promotion to
the next post-graduate residency year are
necessary because lives are ultimately at
stake. Petitioner’s insistence on being
reverted back to the status quo prior to the
reorganizations would therefore be akin to a
college student asking to be sent to high
school and staying there. He is estopped from
insisting upon a right or claim which he had
plainly abandoned when he, from all
indications, enthusiastically accepted the
promotion. It bears emphasis that at the time
of petitioner's promotion to the position of
Medical Specialist I (temporary) in August of
1988, no objection was raised by him about the
change of position or the temporary nature of
designation. The failure to assert a claim or
the voluntary acceptance of another position
in government, obviously without reservation,
leads to a presumption that the civil servant
has either given up his claim of has already
settled into the new position. Finally, it is
crystal clear, from the facts of the case at
bench, that the petitioner accepted a
temporary appointment (Medical Specialist I).
As respondent Civil Service Commission has
correctly pointed out, the appointment was for
a definite and renewable period which, when it
was not renewed, did not involve a dismissal
but an expiration of the petitioner's term.
Province of Camarines Sur vs CA
May 17, 1993
FACTS: Sangguniang Panlalawigan (SP) of Cam
Sur passed Res. 129 authorizing the Prov. Gov.
To purchase/expropriate property to establish
a pilot farm for non-food and non-agricultural
crops and housing project for the government
employees. By virtue of the resolution, Cam
Sur filed 2 cases for expropriation against
private respondents (San Joaquins).
RTC: denied motion to dismiss on the ground of
inadequacy of price of San Joaquins.
CA: San Joaquins raised issue of a) declaring
the resolution null and void, b) complaint for
expropriation de dismissed. CA asked Sol Gen
to give comment.
SolGen: under the LGC, no need for approval by
the OP of the exercise of the SP of the right
to eminent domin. However, approval of DAR
must first be secured (since this involves
appropriation of agricultural lands).
CA: set aside order of RTC (without however
disposing of the issues raised. The SC said
that the CA assumed that the resolution is
valid and the expropriation is for a public
use).
Issues:
1) WON the resolution is null and void.
Corollary to this issue is WON the
expropriation is for a public use.
2) WON the exercise of the power of eminent
domain in this case is restricted by the CAR
Law?
3) WON the complaint for expropriation may be
dismissed on the ground of inadequacy of the
compensation offered?
Held/ratio:
1) The expropriation is for a public
purpose, hence the resolution is authorized
and valid.
SC explained that there had been a shift from
the old to the new concept of “public
purpose:. Old concept is that the property
must actually be used by the general public.
The new concept, on the other hand, means
public advantage, convenience or benefit,
which tends to contribute to the general
welfare and the prosperity of the whole
community.
In this case, the proposed pilot development
center would inure to the direct benefit and
advantage of the CamSur peeps. (How?)
invaluable info and tech on agriculture,
fishery, and cottage industry, enhance
livelihood of farmers and fishermen, etc.
2) No, (citing Ardana vs Reyes, SC here
said that the implication of the Ardana case
is that) the power of expropriation is
superior to the power to distribute lands
under the land reform program.
Old LGC does not intimate in the least that
LGUs must first secure approval of the Dept of
Land Reform for conversion of agri to non-agri
use. Likewise, no provision in the CAR Law
subjecting expropriation by LGUs to the
control of DAR.
Moreover, Sec 65 of CAR Law is not in point
because it is applicable only to lands
previously placed under the agrarian reform
program. This is limited only to applications
for reclassification submitted by land owners
or tenant beneficiaries.
Statutes conferring power of eminent domain to
political subdivisions cannot be broadened or
constricted by implication.
3) Fears of private respondents that they
will be paid on the basis of the valuation
decalred in the tax declarations of their
property, are unfounded.
It is unconstitutional to fix just
compensation in expropriation cases based on
the value given either by the owners or the
assessor. Rules for determining just
compensation are those laid down in Rule 67
ROC, evidence must be submitted to justify
what they consider is the just compensation.
PIMENTEL VS ERMITA
Facts: While Congress was in session, due to
vacancies in the cabinet, then president
Gloria Macapagal-Arroyo (GMA) appointed Arthur
Yap et al as secretaries of their respective
departments. They were appointed in an acting
capacity only. Senator Aquilino Pimentel
together with 7 other senators filed a
complaint against the appointment of Yap et
al. Pimentel averred that GMA cannot make such
appointment without the consent of the
Commission on Appointment; that, in accordance
with Section 10, Chapter 2, Book IV of
Executive Order No. 292, only the
undersecretary of the respective departments
should be designated in an acting capacity and
not anyone else.
On the contrary, then Executive Secretary
Eduardo Ermita averred that the president is
empowered by Section 16, Article VII of the
1987 Constitution to issue appointments in an
acting capacity to department secretaries
without the consent of the Commission on
Appointments even while Congress is in
session. Further, EO 292 itself allows the
president to issue temporary designation to an
officer in the civil service provided that the
temporary designation shall not exceed one
year.
During the pendency of said case, Congress
adjourned and GMA issued ad interim
appointments re-appointing those previously
appointed in acting capacity.
ISSUE: Whether or not the appointments made by
ex PGMA is valid.
HELD: Yes. The argument raised by Ermita is
correct. Further, EO 292 itself provided the
safeguard so that such power will not be
abused hence the provision that the temporary
designation shall not exceed one year. In this
case, in less than a year after the initial
appointments made by GMA, and when the
Congress was in recess, GMA issued the ad
interim appointments – this also proves that
the president was in good faith.
It must also be noted that cabinet secretaries
are the alter egos of the president. The
choice is the president’s to make and the
president normally appoints those whom he/she
can trust. She cannot be constrained to choose
the undersecretary. She has the option to
choose. An alter ego, whether temporary or
permanent, holds a position of great trust and
confidence. Congress, in the guise of
prescribing qualifications to an office,
cannot impose on the President who her alter
ego should be.
The office of a department secretary may
become vacant while Congress is in session.
Since a department secretary is the alter ego
of the President, the acting appointee to the
office must necessarily have the President’s
confidence. That person may or may not be the
permanent appointee, but practical reasons may
make it expedient that the acting appointee
will also be the permanent appointee.
Anent the issue that GMA appointed
“outsiders”, such is allowed. EO 292 also
provides that the president “may temporarily
designate an officer already in the government
service or any other competent person to
perform the functions of an office in the
executive branch.” Thus, the President may
even appoint in an acting capacity a person
not yet in the government service, as long as
the President deems that person competent.
MATIBAG VS. BENIPAYO
G.R. No. 149036, April 2, 2002
FACTS:
On February 1999, petitioner Matibag was
appointed Acting Director IV of the Comelec’s
EID by then Comelec Chairperson Harriet
Demetriou in a temporary capacity. On March
2001, respondent Benipayo was appointed
Comelec Chairman together with other
commissioners in an ad interim appointment.
While on such ad interim appointment,
respondent Benipayo in his capacity as
Chairman issued a Memorandum address
transferring petitioner to the Law Department.
Petitioner requested Benipayo to reconsider
her relief as Director IV of the EID and her
reassignment to the Law Department. She cited
Civil Service Commission Memorandum Circular
No. 7 dated April 10, 2001, reminding heads of
government offices that "transfer and detail
of employees are prohibited during the
election period. Benipayo denied her request
for reconsideration on April 18, 2001, citing
COMELEC Resolution No. 3300 dated November 6,
2000, exempting Comelec from the coverage of
the said Memo Circular.
Petitioner appealed the denial of her request
for reconsideration to the COMELEC en banc.
She also filed an administrative and criminal
complaint16 with the Law Department17against
Benipayo, alleging that her reassignment
violated Section 261 (h) of the Omnibus
Election Code, COMELEC Resolution No. 3258,
Civil Service Memorandum Circular No. 07, s.
001, and other pertinent administrative and
civil service laws, rules and regulations.
During the pendency of her complaint before
the Law Department, petitioner filed the
instant petition questioning the appointment
and the right to remain in office of Benipayo,
Borra and Tuason, as Chairman and
Commissioners of the COMELEC, respectively.
Petitioner claims that the ad interim
appointments of Benipayo, Borra and Tuason
violate the constitutional provisions on the
independence of the COMELEC.
ISSUES:
Whether or not the assumption of office by
Benipayo, Borra and Tuason on the basis of the
ad interim appointments issued by the
President amounts to a temporary appointment
prohibited by Section 1 (2), Article IX-C of
the Constitution.
RULING:
We find petitioner’s argument without merit.
An ad interim appointment is a permanent
appointment because it takes effect
immediately and can no longer be withdrawn by
the President once the appointee has qualified
into office. The fact that it is subject to
confirmation by the Commission on Appointments
does not alter its permanent character. The
Constitution itself makes an ad interim
appointment permanent in character by making
it effective until disapproved by the
Commission on Appointments or until the next
adjournment of Congress.
In the instant case, the President did in fact
appoint permanent Commissioners to fill the
vacancies in the COMELEC, subject only to
confirmation by the Commission on
Appointments. Benipayo, Borra and Tuason were
extended permanent appointments during the
recess of Congress. They were not appointed or
designated in a temporary or acting capacity,
unlike Commissioner Haydee Yorac in Brillantes
vs. Yorac34 and Solicitor General Felix
Bautista in Nacionalista Party vs. Bautista.35
The ad interim appointments of Benipayo, Borra
and Tuason are expressly allowed by the
Constitution which authorizes the President,
during the recess of Congress, to make
appointments that take effect immediately.
While the Constitution mandates that the
COMELEC "shall be independent"36, this
provision should be harmonized with the
President’s power to extend ad interim
appointments. To hold that the independence of
the COMELEC requires the Commission on
Appointments to first confirm ad interim
appointees before the appointees can assume
office will negate the President’s power to
make ad interim appointments. This is contrary
to the rule on statutory construction to give
meaning and effect to every provision of the
law. It will also run counter to the clear
intent of the framers of the Constitution.
BAUTISTA VS SALONGA
FACTS:
The President appointed Mary Concepcion
Bautista as the Chairman of the Commission on
Human Rights pursuant to the second sentence
in Section 16, Art. VII, without the
confirmation of the CoA because they are among
the officers of government "whom he (the
President) may be authorized by law to
appoint." Section 2(c), Executive Order No.
163, authorizes the President to appoint the
Chairman and Members of the Commission on
Human Rights. CoA disapproved Bautista's
alleged ad interim appointment as Chairperson
of the CHR in view of her refusal to submit to
the jurisdiction of the Commission on
Appointments.
ISSUES:
1. Whether or not Bautista's appointment is
subject to CoA's confirmation.
2. Whether or not Bautista's appointment is an
ad interim appointment.
RULING:
1. No. The position of Chairman of CHR is not
among the positions mentioned in the first
sentence of Sec. 16 Art 7 of the Constitution,
which provides that the appointments which are
to be made with the confirmation of CoA.
Rather, it is within the authority of
President, vested upon her by Constitution
(2nd sentence of Sec. 16 Art 7), that she
appoint executive officials without
confirmation of CoA.
The Commission on Appointments, by the actual
exercise of its constitutionally delimited
power to review presidential appointments,
cannot create power to confirm appointments
that the Constitution has reserved to the
President alone.
2. Under the Constitutional design, ad interim
appointments do not apply to appointments
solely for the President to make. Ad interim
appointments, by their very nature under the
1987 Constitution, extend only to appointments
where the review of the Commission on
Appointments is needed. That is why ad interim
appointments are to remain valid until
disapproval by the Commission on Appointments
or until the next adjournment of Congress; but
appointments that are for the President solely
to make, that is, without the participation of
the Commission on Appointments, cannot be ad
interim appointments.
TARROSA VS SINGSON
Facts:
Gabriel C. Singson was appointed Governor of
the Bangko Sentral by President Fidel V. Ramos
in 1993. Jesus Armando Tarrosa, as a
"taxpayer", filed a petition for prohibition
questioning the appointment of Singson for not
having been confirmed by the Commission on
Appointments as required by the provisions of
Section 6 of R.A. No. 7653, which established
the Bangko Sentral as the Central Monetary
Authority of the Philippines. The Secretary of
Budget and Management was impleaded for
disbursing public funds in payment of the
salaries and emoluments of respondent Singson.
In their comment, respondents claim that
Congress exceeded its legislative powers in
requiring the confirmation by the CA of the
appointment of the Governor of the Bangko
Sentral. They contend that an appointment to
the said position is not among the
appointments which have to be confirmed by the
CA, citing Section 16 of Article VI of the
Constitution.
Issue:
Whether or not the Governor of the BSP is
subject to COA’s confirmation.
Held:
No. Congress exceeded its legislative powers
in requiring the confirmation by the COA of
the appointment of the Governor of the BSP. An
appointment to the said position is not among
the appointments which have to be confirmed by
the COA under Section 16 of Article 7 of the
Constitution. Congress cannot by law expand
the confirmation powers of the Commission on
Appointments and require confirmation of
appointment of other government officials not
expressly mentioned in the first sentence of
Section 16 of Article 7 of the Constitution.
CALDERON VS CARALE
FACTS:
In 1989, RA 6715 was passed. This law amended
PD 442 or the Labor Code. RA 6715 provides
that the Chairman, the Division Presiding
Commissioners and other Commissioners [of the
NLRC] shall all be appointed by the President,
subject to confirmation by the CoA.
Appointments to any vacancy shall come from
the nominees of the sector which nominated the
predecessor. Pursuant to the law, Cory
assigned Carale et al as the Chairman and the
Commissioners respectively of the NLRC, the
appointment was not submitted to the CoA for
its confirmation. Calderon questioned the
appointment saying that w/o the confirmation
by the CoA, such an appointment is in
violation of RA 6715. Calderon asserted that
RA 6715 is not an encroachment on the
appointing power of the executive contained in
Sec16, Art. 7, of the Constitution, as
Congress may, by law, require confirmation by
the Commission on Appointments of other
officers appointed by the President additional
to those mentioned in the first sentence of
Sec 16 of Article 7 of the Constitution.
ISSUE:
Whether or not Congress may, by law, require
confirmation by the CoA of appointments
extended by the President to government
officers additional to those expressly
mentioned in the first sentence of Sec. 16,
Art. 7 of the Constitution whose appointments
require confirmation by the CoA.
RULING:
The SC agreed with the Sol-Gen, confirmation
by the CoA is required exclusively for the
heads of executive departments, ambassadors,
public ministers, consuls, officers of the
armed forces from the rank of colonel or naval
captain, and other officers whose appointments
are vested in the President by the
Constitution, such as the members of the
various Constitutional Commissions. With
respect to the other officers whose
appointments are not otherwise provided for by
the law and to those whom the President may be
authorized by law to appoint, no confirmation
by the Commission on Appointments is required.
Jurisprudence established the following in
interpreting Sec 16, Art 7 of the Constitution
1. Confirmation by the Commission on
Appointments is required only for presidential
appointees mentioned in the first sentence of
Section 16, Article VII, including, those
officers whose appointments are expressly
vested by the Constitution itself in the
president (like sectoral representatives to
Congress and members of the constitutional
commissions of Audit, Civil Service and
Election).
2. Confirmation is not required when the
President appoints other government officers
whose appointments are not otherwise provided
for by law or those officers whom he may be
authorized by law to appoint (like the
Chairman and Members of the Commission on
Human Rights).
ARTURO M. DE CASTRO vs. JUDICIAL AND BAR
COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL –
ARROYO
G.R. No. 191002, March 17, 2010
FACTS: The compulsory retirement of Chief
Justice Reynato S. Puno by May 17, 2010 occurs
just days after the coming presidential
elections on May 10, 2010.
These cases trace their genesis to the
controversy that has arisen from the
forthcoming compulsory retirement of Chief
Justice Puno on May 17, 2010, or seven days
after the presidential election. Under Section
4(1), in relation to Section 9, Article VIII,
that “vacancy shall be filled within ninety
days from the occurrence thereof” from a “list
of at least three nominees prepared by the
Judicial and Bar Council for every vacancy.”
Also considering that Section 15, Article VII
(Executive Department) of the Constitution
prohibits the President or Acting President
from making appointments within two months
immediately before the next presidential
elections and up to the end of his term,
except temporary appointments to executive
positions when continued vacancies therein
will prejudice public service or endanger
public safety.
The JBC, in its en banc meeting of January 18,
2010, unanimously agreed to start the process
of filling up the position of Chief Justice.
Conformably with its existing practice, the
JBC “automatically considered” for the
position of Chief Justice the five most senior
of the Associate Justices of the Court,
namely: Associate Justice Antonio T. Carpio;
Associate Justice Renato C. Corona; Associate
Justice Conchita Carpio Morales; Associate
Justice Presbitero J. Velasco, Jr.; and
Associate Justice Antonio Eduardo B. Nachura.
However, the last two declined their
nomination through letters dated January 18,
2010 and January 25, 2010, respectively.
The OSG contends that the incumbent President
may appoint the next Chief Justice, because
the prohibition under Section 15, Article VII
of the Constitution does not apply to
appointments in the Supreme Court. It argues
that any vacancy in the Supreme Court must be
filled within 90 days from its occurrence,
pursuant to Section 4(1), Article VIII of the
Constitution; that had the framers intended
the prohibition to apply to Supreme Court
appointments, they could have easily expressly
stated so in the Constitution, which explains
why the prohibition found in Article VII
(Executive Department) was not written in
Article VIII (Judicial Department); and that
the framers also incorporated in Article VIII
ample restrictions or limitations on the
President’s power to appoint members of the
Supreme Court to ensure its independence from
“political vicissitudes” and its “insulation
from political pressures,” such as stringent
qualifications for the positions, the
establishment of the JBC, the specified period
within which the President shall appoint a
Supreme Court Justice.
A part of the question to be reviewed by the
Court is whether the JBC properly initiated
the process, there being an insistence from
some of the oppositors-intervenors that the
JBC could only do so once the vacancy has
occurred (that is, after May 17, 2010).
Another part is, of course, whether the JBC
may resume its process until the short list is
prepared, in view of the provision of Section
4(1), Article VIII, which unqualifiedly
requires the President to appoint one from the
short list to fill the vacancy in the Supreme
Court (be it the Chief Justice or an Associate
Justice) within 90 days from the occurrence of does not refer to the Members of the Supreme
the vacancy. Court.

ISSUE: Whether the incumbent President can Section 14, Section 15, and Section 16 are
appoint the successor of Chief Justice Puno obviously of the same character, in that they
upon his retirement. affect the power of the President to appoint.
The fact that Section 14 and Section 16 refer
HELD: only to appointments within the Executive
Department renders conclusive that Section 15
Prohibition under Section 15, Article VII does also applies only to the Executive Department.
not apply to appointments to fill a vacancy in This conclusion is consistent with the rule
the Supreme Court or to other appointments to that every part of the statute must be
the Judiciary. interpreted with reference to the context,
i.e. that every part must be considered
Two constitutional provisions are seemingly in
together with the other parts, and kept
conflict.
subservient to the general intent of the whole
enactment. It is absurd to assume that the
The first, Section 15, Article VII (Executive
framers deliberately situated Section 15
Department), provides: Section 15. Two months
between Section 14 and Section 16, if they
immediately before the next presidential
intended Section 15 to cover all kinds of
elections and up to the end of his term, a
presidential appointments. If that was their
President or Acting President shall not make
intention in respect of appointments to the
appointments, except temporary appointments to
Judiciary, the framers, if only to be clear,
executive positions when continued vacancies
would have easily and surely inserted a
therein will prejudice public service or
similar prohibition in Article VIII, most
endanger public safety.
likely within Section 4 (1) thereof.
The other, Section 4 (1), Article VIII
(Judicial Department), states: Section 4. (1).
The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It
may sit en banc or in its discretion, in
division of three, five, or seven Members. Any
vacancy shall be filled within ninety days
from the occurrence thereof.

Had the framers intended to extend the

prohibition contained in Section 15, Article
VII to the appointment of Members of the
Supreme Court, they could have explicitly done
so. They could not have ignored the meticulous
ordering of the provisions. They would have
easily and surely written the prohibition made
explicit in Section 15, Article VII as being
equally applicable to the appointment of
Members of the Supreme Court in Article VIII
itself, most likely in Section 4 (1), Article
VIII. That such specification was not done
only reveals that the prohibition against the
President or Acting President making
appointments within two months before the next
presidential elections and up to the end of
the President’s or Acting President’s term
does not refer to the Members of the Supreme
Court.

Had the framers intended to extend the

prohibition contained in Section 15, Article
VII to the appointment of Members of the
Supreme Court, they could have explicitly done
so. They could not have ignored the meticulous
ordering of the provisions. They would have
easily and surely written the prohibition made
explicit in Section 15, Article VII as being
equally applicable to the appointment of
Members of the Supreme Court in Article VIII
itself, most likely in Section 4 (1), Article
VIII. That such specification was not done
only reveals that the prohibition against the
President or Acting President making
appointments within two months before the next
presidential elections and up to the end of
the President’s or Acting President’s term