THE CIVIL SERVICE COMMISSION (CSC)

APPOINTMENTS (TEMPORARY, ACTING AND PERMANENT)

THE NACIONALISTA PARTY VS. FELIX ANGELO BAUTISTA, SOLICITOR GENERAL OF

THE PHILIPPINES (G.R. No. L-3452, December 07, 1949)

DECISION

PADILLA, J.:

The prayer of the petition filed in this case reads, as follows:

Wherefore, petitioner respectfully prays that after due hearing a writ of prohibition issue
commanding the respondent Solicitor General to desist forever from acting as acting member of
the Commission on Elections under the designation rendered to him by President Quirino on
November 9, 1949 unless he is legally appointed as regular member of the said Commission on
Elections * * *.

It is averred, in support of the prayer, that on 9 November 1949, while the respondent held, as
he still holds, the office of Solicitor General of the Philippines, the President designated him as
acting member of the Commission on Elections, and on that same date the respondent took the
oath of office and forthwith proceeded to assume and perform the duties of the office; that at the
time of the respondent's designation he had not resigned from the office of Solicitor General of
the Philippines nor does he intend to do so but continues to exercise all the powers and duties
of the last mentioned office.

It is contended that such designation is invalid, illegal, and unconstitutional, because there was
on 9 November 1949 no vacancy in the Commission on Elections, for the acceptance, approval,
or granting of the application for retirement filed by Commissioner Francisco Enage on such
date constitutes or amounts to abuse of discretion and was done in bad faith by the President
and therefore null and void; and because Commissioner Enage is entitled to leave and until after
the expiration of such leave he does not cease to be a member of the Commission on Elections.
The contention that the granting of the retirement application of Commissioner Enage
constitutes an abuse of discretion and was made in bad faith is based upon the allegation and
claim that the Commissioner "had voted to suspend the elections in Negros Occidental and
Lanao and the Liberal Party fears he might vote to annul said elections."

It is claimed, in the alternative, that even if there was on that date a vacancy in the Commission
on Elections, still the respondent's designation to act as such member of the Commission, in
addition to his duties, as Solicitor General, pending the appointment of a permanent member, is
invalid, illegal, and unconstitutional, because membership in the Commission is a permanent
constitutional office with a fixed tenure, and, therefore, no designation of a person or officer in
an acting capacity could and can be made; because a member of the Commission cannot at the
same time hold any other office; and because the respondent as Solicitor General belongs to
the executive department and cannot assume the powers and duties of a member in the
Commission.

There are other averments that do not go to the root of the main question raised in this case,
such as the subordinate position of the office of the respondent to that of the Secretary of
Justice who as a member of the Cabinet campaigned for the election of the present incumbent
to the presidency of the Republic; the defense of the President made by the respondent in the
impeachment proceedings in Congress and in the emergency powers cases in this Court; the
alleged advice given the President by his advisers, among whom was the respondent, not to
suspend the elections in Occidental Negros and Lanao; the alleged setting aside or revocation
of the Corftmission's resolutions on the suspension of elections in Occidental Negros and Lanao
by the respondent and Chairman Vera, and, for these reasons, it is claimed that impartiality of
judgment in masters concerning the last elections cannot be expected of the respondent,
thereby impairing the independence of the Commission on Elections.

The answer of the respondent admits his designation as acting member of the Commission on
Elections in a temporary capacity pending the appointment of a permanent one and retention of
his office as Solicitor General, and denies the other averments, conclusions, claims and
contentions set out in the petition.

The respondent contends that his designation is lawful and valid, not only because the power to
appoint vested in the President includes the power to designate, but also because it is expressly
so provided in Commonwealth Act No. 588; and that the offices held by him, one permanent and
the other temporary, are not incompatible.

The claim that the office held by Commissioner Francisco Enage is not vacant for, the reasons
given by the petitioner is without foundation in law and in fact, because Francisco Enage as
member of the Commission on Elections applied for retirement in 1941 and reiterated his
application in 1946 and 1948 and the President of the Philippines granted it on 9 November
1949, and because even if he were entitled to leave he did not apply for it. So that upon
acceptance of his application for retirement without applying for leave, even if he were entitled
thereto, Francisco Enage vacated his office in the Commission on Elections. Whether the
granting of the application for retirement constitutes an abuse of discretion or was done in bad
faith by the President, as alleged and claimed by the petitioner, is a subject matter into which we
are not at liberty to inquire because of the well known principle of separation of powers.
Besides, the President of the Philippines is not a party to these proceedings. Nevertheless, as
petitioner predicates its conclusion of "bad faith" and "abuse of discretion" upon the allegation
that the Commission "had voted to suspend the elections in Negros Occidental and Lanao and
the Liberal Party fears he might vote to annul said elections," it may be stated to set matters
aright that there is no legal basis for this allegation, because the Commission on Elections
cannot vote to suspend an election but may vote to recommend or may recommend only to the
President the suspension of an election "when for any serious cause the holding of an election
should become impossible in any political division or subdivision," pursuant to section 8 of
Republic Act No. 180, and because the Commission on Elections cannot "vote to annul said
elections" for it has no power to annul an election. What at most it may do is to express its views
in the report to be submitted to the President and the Congress on the manner in which such
election was conducted, pursuant to section 4, Article X, of the Constitution.

As there was a vacancy in the membership of the Commission on Elections, the next point to
determine is whether the designation of the respondent as Acting Member of the Commission
on Elections, in addition to his duties as Solicitor General, pending the appointment of a
permanent member to fill the vacancy caused by the retirement of Commissioner Francisco
Enage, is unlawful and unconstitutional.

Under the Constitution, the Commission on Elections is an independent body or institution

(Article X of the Constitution), just as the General Auditing Office is an independent office
(Article XI of the Constitution). Whatever may be the nature of the functions of the Commission
on Elections, the fact is that the framers of the Constitution wanted it to be independent from the
other departments of the Government. The membership of the Commission is for a fixed period
of nine years, except as to the first members appointed who were to hold office for nine, six and
three years. With these periods, it was the intention to have one position vacant every three
years, so that no President can appoint more than one Commissioner, thereby preserving and
safeguarding the independence and impartiality of the Commission. But despite all the
precautions, the Constitution failed to plug the loophole or forestall the possibility that a member
or members die, resign, retire, as in this case, or be removed by impeachment or disqualified, or
become physically or mentally incapable, to perform the duties and functions of the office. By
death, resignation, retirement, or removal by impeachment, a vacancy in the Commission is
created. In these cases the President may appoint a Commissioner for the unexpired term.
When such an event should come to pass the limitation to one appointment by a President
would be ineffectual. By disqualification or incapacity no vacancy is created. When this
possibility should eventuate to two Commissioners, the Commission's functions would be
stopped or paralyzed. Perhaps, a designation of other members during the incumbents
temporary disability would not harm the public interest and common weal. But the case at bar is
not one of disqualification or incapacity creating no vacancy but of retirement resulting in a
vacancy. The principle or rule that the power to appoint implies or includes the authority to
designate, in the same way that that power carries with it the authority to remove, under the
theory that the whole includes and is greater than the part, is not absolute but subject to certain
limitations. Thus, justices of the Court of Appeals appointed by the President with the consent of
the Commission on Appointments of the Congress may be removed by impeachment only (sec.
24, Rep. Act No. 296); the President may remove a member of the judiciary only upon
recommendation of the Supreme Court, after inquiry, in the case of judges of the Courts of First
Instance (sec. 67, Rep. Act No. 296), and upon recommendation of the judge of the Court of
First Instance or on the President's own motion, after investigation, in the case of justices of the
peace (sec. 97, Rep. Act No. 296); and the President or a department head may remove an
officer or employee in the Civil Service, appointed either by him or by the department head upon
the recommendation of the bureau head, only for cause as provided by law (sec. 4, Article XII,
of the Constitution). Likewise, if it, were not for the express provision of law (secs. 9 and 27,
Rep. Act No. 296), the President could not designate a justice of the Court of Appeals or a judge
of the Court of First Instance to fill temporarily a vacant office of a justice in the Supreme Court
or in the Court of Appeals; and he cannot certainly designate an attorney to fill temporarily such
vacancy in the Supreme Court or in the Court of Appeals, but must appoint him ad interim, if
Congress is not in session, or nominate him, if Congress is in session. The President cannot
designate an attorney to fill temporarily a vacant position of a judge in a Court of First Instance
or of a justice of the peace.

By the very nature of their functions, the members of the Commission on Elections must be
independent. They must be made to feel that they are secured in the tenure of their office and
entitled to fixed emoluments during their incumbency (economic security), so as to make them
impartial in the performance of tneir functions—their powers and duties. They are not allowed to
do certain things, such as to engage in the practice of a profession; to intervene, directly or
indirectly, in the management or control of any private enterprise; or to be financially interested
in any contract with the Government or any subdivision or instrumentality thereof (sec. 3, Article
X, of the Constitution). These safeguards are all conducive or tend to Create or bring about a
condition or state of mind that will lead the members of the Commission to perform with
impartiality their great and important task and functions. That independence and impartiality may
be shaken and destroyed by a designation of a person or officer to act temporarily in the
Commission on Elections. And, although Commonwealth Act No. 588 provides that such
temporary designation "shall in no case continue beyond the date of the adjournment of the
regular session of the National Assembly (Congress) following such designation," still such limit
to the designation does not remove the cause for the impairment of the independence of one
designated in a temporary capacity to the Commission on Elections. It would be more in keeping
with the intent, purpose and aim of the framers of the Constitution to appoint a permanent
Commissioner than to designate one to act temporarily. Moreover, the permanent office of the
respondent may not, from the strict legal point of view, be incompatible with the temporary one
to which he has been designated, tested by the nature and character of the functions he has to
perform in both offices, but in a broad sense there is an incompatibility, because his duties and
functions as Solicitor General require that all his time be devoted to their efficient, performance.
Nothing short of tiiat is required and expected of him.
Before proceeding to dispose of the last point involved in this controversy we notice that the
petitioner alleges that it is organized and registered under the laws of the Philippines. It does not
aver that it is incorporated to entitle it to bring this action. It may be organized and registered as
a political party in or with the Commission on Elections for the purposes of the Revised Election
Code (Republic Act No. 180), but for the purpose of bringing an action in the courts of justice
such organization and registration are not sufficient. It has to be incorporated under Act 1459 for
"only natural or juridical persons may be parties in a civil action." (Sec. 1, Rule 3.) But this
technical defect may be cured by allowing the substitution of the real parties in interest for the
petitioner.

The last point is whether prohibition is the proper remedy. Strictly speaking, there are no
proceedings of the Commission on Elections in the exercise of its judicial or ministerial
functions, which are being performed by it without or in excess of its jurisdiction, or with grave
abuse of its discretion (sec. 2, Rule 67). The only basis for the petition is that the designation of
the respondent as temporary member of the Commission on Elections is illegal and invalid
because it offends against the Constitution. This special civil action as our Rules call it, or this
extraordinary legal remedy following the classical or chancery nomenclaturei is in effect to test
the validity or legality of the respondent's designation in a temporary capacity as member of the
Commission on Elections pending the appointment of a permanent member or Commissioner. It
is in the nature of a quo warranto, and as such it may only be instituted by the party who claims
to be entitled to the office (sec. 6, Rule 68) or by the Solicitor General (secs. 3, 4, Rule 68). The
authorities and decisions of courts are almost unanimous that prohibition will not lie to determine
the title of a de facto judicial officer, since its only function is to prevent a usurpation of
jurisdiction by a subordinate court (High's Extraordinary Legal Remedies, 3d ed., p. 715; Tayko
vs. Capistrano, 53 Phil., 866, 871). In the case at bar, however, as we have found that the
respondent's designation to act temporarily as member of the Commission on Elections is
unlawful because it offends against the provisions of the Constitution creating the Commission
on Elections, the dismissal of the petition would deny and deprive the parties that are affected
by such designation of a remedy and relief, because no one is entitled now to the office and a
party who is not entitled to the office may not institute quo warranto proceedings, and the
respondent as Solicitor General, the only other party who may institute the proceedings, would
not proceed against himself. In these circumstances, it is incumbent upon and the duty of this
Court to grant a remedy. There are cases involving a situation similar to the one under
consideration wherein it was ruled that the remedy of prohibition may lie. In his treatise entitled
"Extraordinary Legal Remedies," High on this point says:

Thus, when the legislature have, by an unconstitutional statute, referred to a body of judges the
determination of the validity of a statute concerning the liability of the state upon bonds issued in
aid of railways, prohibition will lie to prevent such body from acting upon the matters thus
submitted. So when an act of legislature delegates to a judge powers partly judicial and partly of
a legislative character, as regards the determination of petitions for the incorporation of villages,
the act being held unconstitutional because assuming to delegate legislative powers to a court
or judicial body, prohibition will lie to prevent the exercise of the powers thus conferred. (High's
Extraordinary Legal Remedies, 3d ed., p. 708; Italics supplied.)

Prohibition will not be granted as a substitute for quo warranto for the purpose of trying title to a
judicial office by restraining an intruder or de facto officer from acting, on the ground that he is
an intruder or a de facto officer. (22 R.C.L., 17.) However, in Chambers vs. Jennings (1702) 2
Salk. 553, 91 Eng. Reprint 469, involving an action in the Court of Honor, "Holt, Ch. J., doubted
whether there was or could be any such court, but said a prohibition would lie to a pretended
court." (77 A. L. R., 247.) (Italics supplied.)

Thus, in Ex parte Roundtree (1874) 51 Ala. 42, where the statute in question purported to create
"the law and equity court of Morgan County," and, in contravention of the Constitution, which
provided that the judges of inferior courts should be elected by the people, declared that the
circuit judge of a designated court should act as judge of the new court, it was held that
prohibition was a proper remedy, and, in fact, "the only adequate remedy," to prevent the circuit
judge from presiding in the court created, and taking or exercising jurisdiction of a certain cause
therein pending against the petitioner, and proceeding against the petitioner, who had been
summoned as a juror. The Supreme Court declared that if a court against which a writ of
prohibition,is sought is one of established jurisdiction, a plea that the subject matter of a
particular suit lies without its jurisdiction, or that the party is not amenable to its cognizance, will
ordinarily afford full relief; "but, when the question involves the legal existence and construction
of a court,—a denial of all jurisdiction, and not of the particular jurisdiction proposed to be
exercised,—a prohibition * * * is the only adequate remedy."

So, in Curtis vs. Cornish (1912) 109 Me. 384, 84 A. 799, where a statute was plainly
unconstitutional in so far as it provided for the creation of a tribunal of justices to hear and
consider accusations of corrupt practices in elections, made no provision for exceptions, and
denied the right of appeal, except as to questions of the eligibility of candidates to public office
(so that in a particular case there was no means of review except through certiorari or writ of
error, neither of which would lie until after the unconstitutional tribunal should have completed its
hearings and made futile findings which it had no jurisdiction to make, and both of which were
otherwise so defective under the circumstances as to be remedies in form rather than in
substance), it was held proper to determine an issue as to the constitutionality of the statute in a
prohibition proceeding.

In State ex rel. Hovey vs. Noble (1889) 118 Ind., 350, 21 N. E., 244, 4 L. R. A., 101, 10 Am. St.
Rep., 143, where a writ of prohibition was issued against certain persons to prevent their acting
as supreme court commissioners by appointment made under an unconstitutional statute, the
somewhat lengthy opinion contains no. suggestion of doubt as to the propriety of the remedy in
view of the conclusion that that statute in its entirety was utterly void. The statute purported to
create the offices of commissioners of the supreme court as well as to provide for the
appointment of commissioners. (113 A; L. R., 799.)

The foregoing authorities are invoked in view of the peculiar and extraordinary circumstances
obtaining in this case already referred to, to wit: that as no one is entitled to the office there is no
party who in his' name may institute quo warranto proceedings, and that the respondent,. the
only other party who may institute the proceedings in the name of the Republic of the
Philippines, would not proceed against himself. Were it not for this anomalous situation where
there would be no remedy to redress a constitutional transgression, we would adhere strictly to
the time-honored rule that to test the right to an office quo warranto proceedings is the proper
remedy.

The petitioner is granted five days within which to amend its petition so as to substitute the real
parties in interest for it (the petitioner), or to show that it is a juridical person entitled to institute
these proceedings. Otherwise, or if the petitioner does not amend its petition or does not show
that it is a juridical entity, the petition will be dismissed. After the amendment or showing
referred to shall have been made, the writ prayed for will issue, without costs.

SIXTO S. BRILLANTES, JR. VS. HAYDEE B. YORAC, IN HER CAPACITY AS ACTING

CHAIRPERSON OF THE COMMISSION ON ELECTIONS (G.R. No. 93867, December 18,
1990)

DECISION

CRUZ, J.:

The petitioner is challenging the designation by the President of the Philippines of Associate
Commissioner Haydee B. Yorac as Acting Chairman of the Commission on Elections, in place
of Chairman Hilario B. Davide, who had been named chairman of the fact-finding commission to
investigate the December 1989 coup d'etat attempt.

The qualifications of the respondent are conceded by the petitioner and are not in issue in this
case. What is the power of the President of the Philippines to make the challenged designation
in view of the status of the Commission on Elections as an independent constitutional body and
the specific provision of Article IX-C, Section 1(2) of the Constitution that "(I)n no case shall any
Member (of the Commission on Elections) be appointed or designated in a temporary or acting
capacity."

The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President
Elpidio Quirino designated the Solicitor General as acting member of the Commission on
Elections and the Court revoked the designation as contrary to the Constitution. It is also
alleged that the respondent is not even the senior member of the Commission on Elections,
being outranked by Associate Commissioner Alfredo E. Abueg, Jr.

The petitioner contends that the choice of the Acting Chairman of the Commission on Elections
is an internal matter that should be resolved by the members themselves and that the intrusion
of the President of the Philippines violates their independence. He cites the practice in this
Court, where the senior Associate Justice serves as Acting Chief Justice in the absence of the
Chief Justice. No designation from the President of the Philippines is necessary.

In his Comment, the Solicitor General argues that no such designation is necessary in the case
of the Supreme Court because the temporary succession cited is provided for in Section 12 of
the Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for the Court of
Appeals. There is no such arrangement, however, in the case of the Commission on
Elections. The designation made by the President of the Philippines should therefore be
sustained for reasons of "administrative expediency," to prevent disruption of the functions of
the COMELEC.

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

operations of the Commission on Elections would have been disturbed or stalemated if the
President of the Philippines had not stepped in and designated an Acting Chairman. There did
not seem to be any such problem. In any event, even assuming that difficulty, we do not agree
that "only the President (could) act to fill the hiatus," as the Solicitor General maintains.

Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional
Commissions as "independent." Although essentially executive in nature, they are not under the
control of the President of the Philippines in the discharge of their respective functions. Each of
these Commissions conducts its own proceedings under the applicable laws and its own rules
and in the exercise of its own discretion. Its decisions, orders and rulings are subject only to
review on certiorari by this Court as provided by the Constitution in Article IX-A, Section 7.

The choice of a temporary chairman in the absence of the regular chairman comes under that
discretion. That discretion cannot be exercised for it, even with its consent, by the President of
the Philippines.

A designation as Acting Chairman is by its very terms essentially temporary and therefore
revocable at will. No cause need be established to justify its revocation. Assuming its validity,
the designation of the respondent as Acting Chairman of the Commission on Elections may be
withdrawn by the President of the Philippines at any time and for whatever reason she sees
fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from
challenging its withdrawal.

It is true, as the Solicitor General points out, that the respondent cannot be removed at will from
her permanent position as Associate Commissioner. It is no less true, however, that she can be
replaced as Acting Chairman, with or without cause, and thus deprived of the powers and
perquisites of that temporary position.

The lack of a statutory rule covering the situation at bar is no justification for the President of the
Philippines to fill the void by extending the temporary designation in favor of the
respondent. This is still a government of laws and not of men. The problem allegedly sought to
be corrected, if it existed at all, did not call for presidential action. The situation could have been
handled by the members of the Commission on Elections themselves without the participation of
the President, however well-meaning.

In the choice of the Acting Chairman, the members of the Commission on Elections would most
likely have been guided by the seniority rule as they themselves would have appreciated it. In
any event, that choice and the basis thereof were for them and not the President to make.

The Court has not the slightest doubt that the President of the Philippines was moved only by
the best of motives when she issued the challenged designation. But while conceding her
goodwill, we cannot sustain her act because it conflicts with the Constitution. Hence, even as
this Court revoked the designation in the Bautista case, so too must it annul the designation in
the case at bar.

The Constitution provides for many safeguards to the independence of the Commission on
Elections, foremost among which is the security of tenure of its members. That guaranty is not
available to the respondent as Acting Chairman of the Commissions on Elections by designation
of the President of the Philippines.

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

Yorac as Acting Chairman of the Commissions on Elections is declared UNCONSTITUTIONAL,
and the respondent is hereby ordered to desist from serving as such. This is without prejudice
to the incumbent Associate Commissioners of the Commission on Elections restoring her to the
same position if they so desire, or choosing another member in her place, pending the
appointment of a permanent Chairman by the President of the Philippines with the consent of
the Commission on Appointments.

SO ORDERED.

AS TO ROTATIONAL SCHEME

THELMA P. GAMINDE VS. COMMISSION ON AUDIT AND/OR HON. CELSO D. GANGAN,

HON. RAUL C. FLORES AND EMMANUEL M. DALMAN (G.R. No. 140335, December 13,
2000)

DECISION

PARDO, J.:

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. On
June 15, 1999, the Commission on 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 Mar. 04, 1988 to
Feb. 02, 1994 March 08, 1995

De Leon - 2nd appointee Feb. 02, 1994 to March 22, 1995 to

(incumbent) Feb. 02, 2001 Feb. 02, 2001

_______ - 3rd appointee Feb. 02, 2001 to

Feb. 02, 2008

2nd Member Term Tenure

(5-year original)

Barlongay - 1st appointee Feb. 02, 1987 to March 04, 1988 to

Feb. 02, 1992 March 04, 1993
Gaminde - 2nd appointee Feb. 02, 1992 to June 11, 1993 to
Feb. 02, 1999 Feb. 02, 2000

Valmores - 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to

(incumbent) Feb. 02, 2006 Feb. 02, 2006

3rd Member Term Tenure

(3-year original)

Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to

Feb. 02, 1990 May 31, 1991

Ereñeta - 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to

Feb. 02, 1997 Feb. 02, 1997

Erestain, Jr. - 3rd appointee Feb. 02, 1997 to Feb. 11, 1997 to
(incumbent) Feb. 02, 2004 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.

ACCORDINGLY, we REVERSE the decisions of the Commission on Audit insofar as they

disallow the salaries and emoluments of Commissioner Thelma P. Gaminde and her
coterminous staff during her tenure as de facto officer from February 02, 1999, until February
02, 2000.

This decision shall be effective immediately.

No costs.

SO ORDERED.

APPEAL

EUGENIO S. CAPABLANCA VS. CIVIL SERVICE COMMISSION (G.R. No. 179370,

November 18, 2009)

DECISION

DEL CASTILLO, J.:

Uniformed members of the Philippine National Police (PNP) are considered employees of the
National Government, and all personnel of the PNP are subject to civil service laws and
regulations.[1] Petitioner cannot evade liability under the pretense that another agency has
primary jurisdiction over him. Settled is the rule that jurisdiction is conferred only by the
Constitution or the law.[2] When it clearly declares that a subject matter falls within the
jurisdiction of a tribunal, the party involved in the controversy must bow and submit himself to
the tribunal on which jurisdiction is conferred.

Factual Antecedents

On October 3, 1996, the PNP-Regional Office 10 appointed petitioner Eugenio S. Capablanca

into the PNP service with the rank of Police Officer 1 (PO1) with a temporary status [3] and was
assigned at the PNP Station in Butuan City. On November 29, 1998, petitioner took the PNP
Entrance Examination conducted by the National Police Commission (NAPOLCOM)[4] and
passed the same. On July 28, 2000, he took the Career Service Professional Examination-
Computer Assisted Test (CSP-CAT) given by the Civil Service Commission (CSC)[5] and
likewise passed the same. Thereafter, or on October 3, 2000, the Regional Director of Police
Regional Office XIII conferred upon petitioner the permanent status as PO1. [6]

Proceedings before the Civil Service Commission

On October 15, 2001, the CSC Caraga Regional Office XIII (CSC Caraga) through its Regional
Director Lourdes Clavite-Vidal informed PO1 Capablanca about certain alleged irregularities
relative to the CSP-CAT which he took on July 28, 2000. According to the CSC, the "person in
the picture pasted in the Picture Seat Plan (PS-P) is different from the person whose picture is
attached in the Personal Data Sheet (PDS)" and that the signature appearing in the PS-P was
different from the signature affixed to the PDS.[7] The CSC further informed petitioner that such
findings of alleged examination irregularities constituted the offense of dishonesty if prima facie
evidence was established.

A Preliminary Investigation was scheduled on November 16, 2001; [8] petitioner failed to appear
but was represented by counsel who moved to dismiss the proceedings. He argued that it is the
NAPOLCOM which has sole authority to conduct entrance and promotional examinations for
police officers to the exclusion of the CSC, pursuant to Civil Service Commission v. Court of
Appeals.[9] Thus, the CSP-CAT conducted on July 28, 2000 was void. Moreover, he alleged that
the administrative discipline over police officers falls under the jurisdiction of the PNP and/or
NAPOLCOM.[10]

In an Order[11] dated November 16, 2001, the CSC Caraga held that there was no dispute that it
was the NAPOLCOM which had the sole authority to conduct the entrance and promotional
examinations of police officers. However, since petitioner submitted a CSC Career Service
Professional eligibility and not a NAPOLCOM eligibility to support his appointment on a
permanent status, then the CSC had jurisdiction to conduct the preliminary investigation.

The dispositive portion of the CSC Order dated November 16, 2001, reads:

WHEREFORE, the Motion to Dismiss filed by Atty. Poculan, for his client, Eugenio S.
Capablanca is hereby DENIED for lack of merit. Accordingly, Capablanca is directed to submit
his counter-affidavit within five (5) days from receipt hereof.[12]

Proceedings before the Regional Trial Court

To prevent the CSC Caraga from further proceeding with the conduct of the administrative
investigation, PO1 Capablanca filed on January 16, 2002 a Petition [13] for prohibition and
injunction with a prayer for the issuance of a temporary restraining order and writ of preliminary
injunction with the Regional Trial Court of Butuan. The said court issued a 20-day temporary
restraining order and set the case for summary hearing on February 8, 2002 to resolve the
application for preliminary injunction.[14]

Instead of filing its Answer, the CSC Caraga moved to dismiss the case,[15] arguing inter alia
that: a) PO1 Capablanca failed to exhaust administrative remedies by appealing before the CSC
Central Office instead of filing a petition before the trial court; b) PO1 Capablanca's reliance on
Civil Service Commission v. Court of Appeals[16] was misplaced because what he took was a
career service professional examination and not a police entrance examination; and c) the CSC
was not stripped of its original disciplinary jurisdiction over all cases involving civil service
examination anomalies.

In its March 8, 2002 Resolution,[17] the trial court denied CSC's Motion to Dismiss for lack of
merit. It held that the CSC had no jurisdiction to conduct the preliminary investigation, much less
to prosecute PO1 Capablanca. The dispositive portion of the Resolution, reads:

WHEREFORE, in view of all the foregoing, respondent's motion to dismiss is denied for lack of
merit. As a consequence and for want of jurisdiction, herein respondent, its Regional Director,
Region 13 Caraga, or its officers, attorneys' agents, or any person acting for and its behalf, is
hereby ordered to finally, permanently and perpetually desist, cease and stop from proceeding
or conducting any administrative investigation against the petitioner Eugenio S. Capablanca.

No pronouncement as to costs.

IT IS SO ORDERED.[18]

Proceedings before the Court of Appeals

Its Motion for Reconsideration[19] unheeded,[20] the CSC Caraga filed a Petition

for Certiorari[21] before the Court of Appeals praying for the nullification of the Resolution of the
trial court, and at the same time insisting on its jurisdictional power to prosecute the
administrative case involving dishonesty and that PO1 Capablanca failed to exhaust
administrative remedies.

In his Comment,[22] the petitioner contended that there was no need to exhaust administrative
remedies because the proceeding before the CSC was an absolute nullity, and that it was the
NAPOLCOM, the People's Law Enforcement Board (PLEB), or PNP which had primary
jurisdiction over the alleged irregularities in the CSP-CAT. He alleged that the case involved a
purely legal issue and that he would suffer irreparable injury if he should still await the outcome
of the administrative action before the CSC Central Office. PO1 Capablanca stressed that the
July 28, 2000 CSP-CAT was ineffectual as far as he was concerned, because it was in the
nature of a promotional examination for policemen and was solely within the province of
NAPOLCOM.

On March 22, 2006, the Court of Appeals rendered its Decision[23] granting CSC's petition. The
Court of Appeals found that PO1 Capablanca prematurely resorted to court intervention when
the remedy of appeal to the CSC Central Office was available. Upholding the jurisdiction of the
CSC Caraga, the appellate court declared that the subject of the latter's preliminary investigation
was not with respect to PO1 Capablanca's acts in the conduct of his duties as a police officer,
but with respect to the authenticity of the documents he submitted before the CSC Caraga in
support of his application for permanent status as well as the veracity of its contents. It held that
pursuant to the CSC's constitutional duty to protect the integrity of the civil service system, it
acted within its authority to investigate irregularities or anomalies involving civil service
examinations, and to ascertain whether a prospective civil service appointee is qualified in
accordance with all the legal requirements.

Hence, this petition.

Petitioner's Arguments

Petitioner PO1 Capablanca assigns the following errors:

THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, GRAVELY ERRED IN

DECLARING THAT RESPONDENT CSC HAS JURISDICTION AND DISCIPLINARY
AUTHORITY OVER HEREIN PETITIONER, A MEMBER OF THE PHILIPPINE NATIONAL
POLICE.

1-A

GRANTING THAT IT HAS, THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN

NOT DECLARING THAT IT HAS ONLY APPELLATE JURISDICTION OVER THE CASE AND
IT IS THE NATIONAL POLICE COMMISSION (NAPOLCOM) WHICH HAS THE
JURISDICTION TO CONDUCT INITIATORY INVESTIGATION OF THE CASE, AS HELD IN
THE CASE OF MIRALLES VS. GO, G.R. NO. 139943, JANUARY 18, 2001.

II

THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT GRAVELY ERRED IN

DECLARING THAT HEREIN PETITIONER FAILED TO EXHAUST ADMINISTRATIVE
REMEDIES.[24]

Respondent's Arguments

The CSC, through the Office of the Solicitor General (OSG) argues that in pursuing a case
against one who undermines the integrity of the CSC examinations, the CSC Caraga was only
acting within its mandated powers and duties. The OSG clarifies that the PNP does not have
exclusive jurisdiction over disciplinary cases. Rather, its jurisdiction over such cases is
concurrent with that of the CSC. It also argues that Civil Service Commission v. Court of
Appeals[25] is irrelevant to petitioner's situation because the ruling therein does not affect the
authority of the CSC to conduct the CSP examination and to investigate examination anomalies.
Lastly, the OSG contends that petitioner should not have directly resorted to court action,
because the CSC proper could still review the decisions and actions of the CSC Caraga. [26]

Issue

The case at bar boils down to the issue of whether the CSC Caraga has jurisdiction to conduct
the preliminary investigation of a possible administrative case of dishonesty against PO1
Capablanca for alleged CSP examination irregularity.

Our Ruling

The petition lacks merit.

The CSC, as the central personnel agency of the Government, is mandated to establish a
career service, to strengthen the merit and rewards system, and to adopt measures to promote
morale, efficiency and integrity in the civil service.[27] The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the government, including government-owned or
controlled corporations with original charters.[28] Specifically, Section 91 of Republic Act (RA)
No. 6975 (1990) or the "Department of Interior and Local Government Act of 1990" provides that
the "Civil Service Law and its implementing rules and regulations shall apply to all personnel of
the Department," to which herein petitioner belongs.

Section 12 of Executive Order (EO) No. 292 or the "Administrative Code of 1987," enumerates
the powers and functions of the CSC, to wit:

SEC. 12. Powers and Functions. - The Commission shall have the following powers and
functions:

(1) Administer and enforce the constitutional and statutory provisions on the merit system for all
levels and ranks in the Civil Service;

xxxx

(7) Control, supervise and coordinate Civil Service examinations. x x x

xxxx

(11) Hear and decide administrative cases instituted by or brought before it directly or on
appeal, including contested appointments, and review decisions and actions of its officesand of
the agencies attached to it. x x x

In addition, Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations
specifically confers upon the CSC the authority to take cognizance over any irregularities or
anomalies connected with the examinations, thus:

Sec. 28. The Commission shall have original disciplinary jurisdiction over all its officials and
employees and over all cases involving civil service examination anomalies or irregularities.

To carry out this mandate, the CSC issued Resolution No. 991936, or the Uniform Rules on
Administrative Cases in the Civil Service, empowering its Regional Offices to take cognizance of
cases involving CSC examination anomalies:

SECTION 6. Jurisdiction of Civil Service Regional Offices. - The Civil Service Commission
Regional Offices shall have jurisdiction over the following cases:

A. Disciplinary

1. Complaints initiated by, or brought before, the Civil Service Commission Regional Offices
provided that the alleged acts or omissions were committed within the jurisdiction of the
Regional Office, including Civil Service examination anomalies or irregularities and the persons
complained of are employees of agencies, local or national, within said geographical areas;

xxxx

Based on the foregoing, it is clear that the CSC acted within its jurisdiction when it initiated the
conduct of a preliminary investigation on the alleged civil service examination irregularity
committed by the petitioner.

However, petitioner contends that a citizen who has complaints against a police officer should
bring his complaint before the following, citing Section 41 of RA 6975,[29] to wit:
(a) x x x x

(1) Chiefs of police, where the offense is punishable by withholding of privileges, restriction to
specified limits, suspension or forfeiture of salary, or any combination thereof for a period not
exceeding fifteen (15) days;

(2) Mayors of cities or municipalities, where the offense is punishable by withholding of

privileges, restriction to specified limits, suspension or forfeiture of salary, or any combination
thereof, for a period of not less than sixteen (16) days but not exceeding thirty (30) days;

(3) People's Law Enforcement Board, as created under Section 43 hereof, where the offense is
punishable by withholding of privileges, restriction to specified limits, suspension or forfeiture of
salary, or any combination thereof, for a period exceeding thirty (30) days; or by dismissal.

xxxx

(c) Exclusive Jurisdiction. - A complaint or a charge filed against a PNP member shall be heard
and decided exclusively by the disciplining authority who has acquired original jurisdiction over
the case and notwithstanding the existence of concurrent jurisdiction as regards the offense:
Provided, That offenses which carry higher penalties referred to a disciplining authority shall be
referred to the appropriate authority which has jurisdiction over the offense.

Based on the foregoing, petitioner avers that the CSC does not have the authority to conduct an
initiatory investigation of the case, but it only has appellate jurisdiction to review the decision of
any of the disciplining authorities above mentioned. Petitioner anchors his argument on the
following provisions of EO 292 stating that the heads of departments, agencies, offices or
bureaus should first commence disciplinary proceedings against their subordinates before their
decisions can be reviewed by the CSC:

Section 47, Book V of EO 292:

Disciplinary Jurisdiction. - (1) The Commission shall decide upon appeal all administrative
disciplinary cases involving the imposition of a penalty of suspension for more than thirty days,
or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer,
removal or dismissal from office x x x

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters involving disciplinary
action against officers and employees under their jurisdiction. Their decisions shall be final in
case the penalty imposed is suspension for not more than thirty days or fine in an amount not
exceeding thirty days' salary. In case the decision rendered by a bureau or office head is
appealable to the Commission, the same may be initially appealed to the department and finally
to the Commission and pending appeal, the same shall be executory except when the penalty is
removal, in which case the same shall be executory only after confirmation by the Secretary
concerned.

Section 48, Book V of EO 292:

Procedure in Administrative Cases Against Non-Presidential Appointees. - (1) Administrative

proceedings may be commenced against a subordinate officer or employee by the Secretary or
head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional
directors, or upon sworn, written complaint of any other person.

We are not persuaded. It has already been settled in Cruz v. Civil Service Commission[30] that
the appellate power of the CSC will only apply when the subject of the administrative cases filed
against erring employees is in connection with the duties and functions of their office, and not in
cases where the acts of complainant arose from cheating in the civil service examinations.
Thus:

Petitioner's invocation of the law is misplaced. The provision is applicable to instances where
administrative cases are filed against erring employees in connection with their duties and
functions of the office. This is, however, not the scenario contemplated in the case at bar. It
must be noted that the acts complained of arose from a cheating caused by the petitioners in
the Civil Service (Subprofessional) examination. The examinations were under the direct control
and supervision of the Civil Service Commission. The culprits are government employees over
whom the Civil Service Commission undeniably has jurisdiction. x x x

Moreover, in Civil Service Commission v. Albao,[31] we rejected the contention that the CSC,
under the aforestated Sections 47 and 48 of Book V of EO 292, only has appellate disciplinary
jurisdiction on charges of dishonesty and falsification of documents in connection with an
appointment to a permanent position in the government service. We enunciated, thus:

Pursuant to Section 47 (1), (2) and Section 48 above, it is the Vice President of the Philippines,
as head of office, who is vested with jurisdiction to commence disciplinary action against
respondent Albao.

Nevertheless, this Court does not agree that petitioner is helpless to act directly and motu
proprio, on the alleged acts of dishonesty and falsification of official document committed by
respondent in connection with his appointment to a permanent position in the Office of the Vice
President.

It is true that Section 47 (2), Title I (A), Book V of EO No. 292 gives the heads of government
offices original disciplinary jurisdiction over their own subordinates. Their decisions shall be final
in case the penalty imposed is suspension for not more than thirty days or fine in an amount not
exceeding thirty days' salary. It is only when the penalty imposed exceeds the aforementioned
penalties that an appeal may be brought before the Civil Service Commission which has
appellate jurisdiction over the same in accordance with Section 47 (1) Title I(A), Book V of EO
No. 292, thus:

SEC. 47. Disciplinary Jurisdiction. - (1) The Commission shall decide upon appeal all
administrative disciplinary cases involving the imposition of a penalty of suspension for more
than thirty days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary or
transfer, removal or dismissal from office. x x x

The present case, however, partakes of an act by petitioner to protect the integrity of the
civil service system, and does not fall under the provision on disciplinary actions under Sec.
47. It falls under the provisions of Sec. 12, par. 11, on administrative cases instituted by it
directly. This is an integral part of its duty, authority and power to administer the civil
service system and protect its integrity, as provided in Article IX-B, Sec. 3 of the
Constitution, by removing from its list of eligibles those who falsified their qualifications.
This is to be distinguished from ordinary proceedings intended to discipline a bona fide
member of the system, for acts or omissions that constitute violations of the law or the
rules of the service. (Emphasis Ours)

Incidentally, it must be mentioned at this juncture that citizen's complaints before the PLEB
under RA 6975 pertain to complaints lodged by private citizens against erring PNP members for
the redress of an injury, damage or disturbance caused by the latter's illegal or irregular acts, an
example being that of a policeman who takes fish from the market without paying for it. [32]
Clearly, the PLEB has no jurisdiction concerning matters involving the integrity of the civil
service system.
Finally, petitioner's reliance on Civil Service Commission v. Court of Appeals,[33] is misplaced. In
said case, the NAPOLCOM assailed Item 3 of CSC Resolution No. 96-5487, which provides:

3. Appointees to Police Officer and Senior Police Officer positions in the Philippine National
Police must have passed any of the following examinations:

a) PNP Entrance Examination;

b) Police Officer 3rd Class Examination; and
c) CSC Police Officer Entrance Examination.

The NAPOLCOM took exception to this provision, particularly letter (c), arguing that the
requirement of taking a CSC Police Officer Entrance Examination is only applicable to entrance
in the first-level position in the PNP, i.e., the rank of PO1.[34] NAPOLCOM stressed that what
would entitle a police officer to the appropriate eligibility for his promotion in the PNP are the
promotional examinations conducted by the NAPOLCOM, and not the CSC Police Officer
Entrance Examination.

The Court of Appeals found in favor of the NAPOLCOM and held that the CSC, by issuing Item
3 of CSC Resolution No. 96-5487 encroached on the exclusive power of NAPOLCOM under RA
6975[35] to administer promotional examinations for policemen and to impose qualification
standards for promotion of PNP personnel to the ranks of PO2 up to Senior Police Officers 1-4.
Thus:

Admittedly, the CSC is mandated to conduct the qualifying entrance examination (CSC Police
Officer Entrance Examination) for Police Officer 1. However, when the CSC prescribes the
same examination for appointment of Senior Police Officer (SPO) under the questioned Item 3,
it in effect imposes an examination for promotion (appointment) of a policeman to PO2 up to
other higher ranks up to SP04. Thus Item 3 encompasses examinations for the positions of
Police Officer as well as that of Senior Police Officer, meaning examination not only for
appointment to PO1 but promotion to PO2 and PO3 up to the four SPO ranks. [36]

The Court of Appeals thus ordered the CSC to desist from conducting any promotional
examination for Police Officers and Senior Police Officers.

In a Minute Resolution dated September 25, 2001 in G.R. No. 141732, we affirmed the Court of
Appeals thereby sustaining the authority of the NAPOLCOM to administer promotional
examinations for policemen.

It must be stressed however that the subject matter in the above cited case was the conduct of
promotional examination for policemen. On the contrary, the issue in the instant case is the
jurisdiction of the CSC with regard to anomalies or irregularities in the CSP-CAT, which is a
totally different matter.

In fine, we find that CSC Caraga acted within its powers when it instituted the conduct of a
preliminary investigation against herein petitioner. In view of the foregoing, we need not
anymore attend to the issue of the doctrine of exhaustion of administrative remedies.

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.
SCOPE OF CIVIL SERVICE

PHILIPPINE NATIONAL BANK VS. CAYETANO A. TEJANO, JR. (G.R. No. 173615, October
16, 2009)

DECISION

PERALTA, J.:

In this petition for review,[1] the Philippine National Bank assails the January 3, 2006 Decision [2]
of the Court of Appeals in CA-G.R. SP No. 50084, which reversed Resolution Nos. 980716 and
983099 issued by the Civil Service Commission, respectively dated April 14, 1998 and
December 7, 1998, and referred the case back to said office for further proceedings. The
assailed Resolutions, in turn, dismissed respondent Cayetano A. Tejano's appeal from the
resolution of the Board of Directors of the Philippine National Bank which found him guilty of
grave misconduct in connection with a number of transactions with certain corporate entities.

The case stems from a number of alleged irregular and fraudulent transactions made by
respondent Cayetano A. Tejano, Jr. supposedly with the participation of eight (8) other
employees of petitioner Philippine National Bank (PNB) in its branch in Cebu City -- namely Ma.
Teresa Chan, Marcelino Magdadaro, Douglasia Canuel, Novel Fortich, Jacinto Ouano, Quirubin
Blanco, Manuel Manzanares and Pedrito Ranile. Respondent, together with the other
employees, allegedly committed grave misconduct, gross neglect of duty, conduct grossly
prejudicial to the best interest of the service and acts violative of Republic Act No. 3019, relative
to the corporate accounts of and transactions with Pat International Trading Corporation (PITC),
Khun Tong International Trading Corporation (KITC), Pat Garments International Corporation
(PGIC), Aqua Solar Trading Corporation, Dacebu Traders and Exporters, Mancao Mercantile
Co., Inc. and V&G Better Homes Subdivision. All of these transactions transpired at the time
that PNB was still a government-owned and controlled corporation.

Respondent, who was then the Vice-President and Manager of the bank, and the eight other
employees were administratively charged before the PNB Management Hearing Committee on
February 24 and March 17, 1994.[3] At the close of the hearing on the merits, the Committee
found that with respect to respondent, he was guilty of gross misconduct in misappropriating the
funds of V&G and of gross neglect in extending unwarranted credit accommodations to PITC,
PGIC and KITC which must serve as an aggravating circumstance. The Committee then
recommended that respondent be meted the penalty of forced resignation without forfeiture of
benefits.[4]

The PNB Board of Directors differed. In its Resolution No. 88[5] dated June 21, 1995, it found
that respondent's gross neglect in giving unwarranted credit to PITC, PGIC and KITC must
serve as an aggravating circumstance in relation to the offense of grave misconduct consisting
of misappropriation of V&G funds and must serve the penalty of forced resignation with
forfeiture of benefits.[6]

It appears that only herein respondent sought reconsideration but the Board of Directors, in its
Resolution No. 107,[7] denied the same. Thereafter, on September 21, 1995, respondent
appealed to the Civil Service Commission (CSC)[8] and, on October 19, 1995, he submitted his
Memorandum on Appeal.[9]

In the meantime, on May 27, 1996, the PNB had ceased to be a government-owned and
controlled corporation, and in view of its conversion into a private banking institution by virtue of
Executive Order (E.O.) No. 80.[10] Despite this development, the CSC, on April 14 1998, issued
Resolution No. 980716[11] dismissing respondent's appeal for being filed out of time.
Respondent filed a motion for reconsideration[12] on which the CSC required petitioner to
comment. In its Comment, petitioner theorized that even granting respondent's appeal was filed
on time, the same must, nevertheless, be dismissed on account of the privatization of PNB
which thereby removed the case from the jurisdiction of the CSC. The CSC found this argument
meritorious and, subsequently, in its Resolution No. 983099[13] dated December 7, 1998, it
denied respondent's reconsideration on that ground.

Respondent elevated the matter to the Court of Appeals on petition for review, [14] docketed as
CA-G.R. SP No. 50084.

Before the appellate court, respondent, on the one hand, ascribed error to the CSC in denying
due course to his appeal on the basis of the privatization of PNB inasmuch as the incident
subject of the case had transpired way back in 1992, when the bank was still a government-
owned and controlled corporation. He particularly noted that the CSC, before the privatization of
the bank, had already acquired jurisdiction over the appeal upon the filing thereof and
subsequent submission of the memorandum on appeal. This, according to respondent, negated
petitioner's theory that the CSC could no longer assume jurisdiction and dispose of the appeal
on the merits, especially considering that jurisdiction once acquired generally continues until the
final disposition of the case.[15] On the other hand, petitioner argued in essence that although the
jurisdiction to act on the appeal must continue until the final disposition of the case, this rule
admits of exceptions as where, in the present case, the law must be construed in a way as to
operate on actions pending before its enactment.[16]

The Court of Appeals found merit in respondent's appeal. On January 3, 2006, it issued the
assailed Decision reversing the twin resolutions of the CSC. The appellate court pointed out that
respondent's appeal before the CSC had been filed on time and that the said commission had
not lost jurisdiction over it despite the supervening privatization of PNB. But inasmuch as the
assailed Resolutions did not permeate the merits of respondent's appeal, the appellate court
found it wise to remand the case to the CSC for further proceedings. It disposed of the appeal
as follows:

WHEREFORE, premises considered, the instant petition for review under Rule 43 of the Rules
of Court is hereby GRANTED. ACCORDINGLY, Resolution No. 980716 dated April 14, 1998
and Resolution No. 983099 dated December 7, 1998 of the Civil Service Commission are
hereby REVERSED and the case is remanded to the Civil Service Commission for further
proceedings.

SO ORDERED.[17]

Petitioner's motion for reconsideration was denied.[18] Hence, it filed the instant petition for
review bearing the same issue as that raised previously.

At the core of the controversy is the question of whether E.O. No. 80 has the effect of removing
from the jurisdiction of the CSC the appeal of respondent which was already pending before the
CSC at the time the said law converted PNB into a private banking institution. Petitioner is
insistent that, indeed, the law does have that effect, and this argument is perched on Section 6
of E.O. No. 80, which materially provides that the bank would cease to be a government-owned
and controlled corporation upon the issuance of its articles of incorporation by the Securities and
Exchange Commission and would no longer be subject to the coverage of both the CSC and the
Commission on Audit.[19] Petitioner believes that while indeed jurisdiction ordinarily continues
until the termination of the case, it advances the opinion that the rule does not apply where the
law provides otherwise or where the said law intends to operate on cases pending at the time of
its enactment.[20]

For his part, respondent submits that Section 6 of E.O. No. 80 does not provide for the transfer
of jurisdiction over his pending appeal from the CSC to another administrative authority, and that
neither does the provision authorize its retroactive application in a way that would deprive the
CSC of jurisdiction over cases already pending before it prior to its effectivity. [21] Additionally, he
invokes estoppel against petitioner inasmuch as the latter has actively participated in the
proceedings before the CSC and, hence, was already barred from raising the issue of
jurisdiction, and alleges that petitioner's present recourse was taken merely to cause delay in
the final resolution of the controversy.[22]

We draw no merit in the petition.

In essence, Section 6 of E.O. No. 80, also known as the Revised Charter of PNB, treats of the
effects of converting the bank into a private financial and banking institution. It states:

Section 6. Change in Ownership of the Majority of the Voting Equity of the Bank. - When
the ownership of the majority of the issued common voting shares passes to private investors,
the stockholders shall cause the adoption and registration with the Securities and Exchange
Commission of the appropriate Articles of Incorporation and revised by-laws within three (3)
months from such transfer of ownership. Upon the issuance of the certificate of incorporation
under the provisions of the Corporation Code, this Charter shall cease to have force and effect,
and shall be deemed repealed. Any special privileges granted to the Bank such as the authority
to act as official government depositary, or restrictions imposed upon the Bank, shall be
withdrawn, and the Bank shall thereafter be considered a privately organized bank subject to the
laws and regulations generally applicable to private banks. The Bank shall likewise cease to
be a government-owned or controlled corporation subject to the coverage of service-
wide agencies such as the Commission on Audit and the Civil Service Commission.

The fact of the change of the nature of the Bank from a government-owned and controlled
financial institution to a privately-owned entity shall be given publicity.[23]

In a language too plain to be mistaken, the quoted portion of the law only states no more than
the natural, logical and legal consequences of opening to private ownership the majority of the
bank's voting equity. This is very evident in the title of the section called Change in Ownership of
the Majority of the Voting Equity of the Bank. Certainly, the transfer of the majority of the bank's
voting equity from public to private hands is an inevitable effect of privatization or, conversely,
the privatization of the bank would necessitate the opening of the voting equity thereof to private
ownership. And as the bank ceases to be government depository, it would, accordingly be
coming under the operation of the definite set of laws and rules applicable to all other private
corporations incorporated under the general incorporation law. Perhaps the aspect of more
importance in the present case is that the bank, upon its privatization, would no longer be
subject to the coverage of government service-wide agencies such as the CSC and the
Commission on Audit (COA).

By no stretch of intelligent and reasonable construction can the provisions in Section 6 of E.O.
No. 80 be interpreted in such a way as to divest the CSC of jurisdiction over pending disciplinary
cases involving acts committed by an employee of the PNB at the time that the bank was still a
government-owned and controlled corporation. Stated otherwise, no amount of reasonable
inference may be derived from the terms of the said Section to the effect that it intends to modify
the jurisdiction of the CSC in disciplinary cases involving employees of the government.

Sound indeed is the rule that where the law is clear, plain and free from ambiguity, it must be
given its literal meaning and applied without any interpretation or even construction.[24] This is
based on the presumption that the words employed therein correctly express its intent and
preclude even the courts from giving it a different construction.[25] Section 6 of E.O. No. 80 is
explicit in terms. It speaks for itself. It does not invite an interpretation that reads into its clear
and plain language petitioner's adamant assertion that it divested the CSC of jurisdiction to
finally dispose of respondent's pending appeal despite the privatization of PNB.

In the alternative, petitioner likewise posits that the portion of Section 6 of the E.O. No. 80,
which states that the PNB would no longer be subject to the coverage of both the COA and the
CSC, must be understood to be applicable to cases already pending with the CSC at the time of
the bank's conversion into a private entity. We are not swayed.

While there is no denying that upon its privatization, the bank would consequently be subject to
laws, rules and regulations applicable to private corporations -- which is to say that disciplinary
cases involving its employees would then be placed under the operation of the Labor Code of
the Philippines -- still, we cannot validate petitioner's own interpretation of Section 6 of E.O. No.
80 that the same must be applied to respondent's pending appeal with the CSC and that,
resultantly, the CSC must abdicate its appellate jurisdiction without having to resolve the case to
finality.

It is binding rule, conformably with Article 4 of the Civil Code, that, generally, laws shall have
only a prospective effect and must not be applied retroactively in such a way as to apply to
pending disputes and cases. This is expressed in the familiar legal maxim lex prospicit, non
respicit (the law looks forward and not backward.)[26] The rationale against retroactivity is easy to
perceive: the retroactive application of a law usually divests rights that have already become
vested or impairs the obligations of contract and, hence, is unconstitutional. [27] Although the rule
admits of certain well-defined exceptions[28] such as, for instance, where the law itself expressly
provides for retroactivity,[29] we find that not one of such exceptions that would otherwise lend
credence to petitioner's argument obtains in this case. Hence, in other words, the fact that
Section 6 of E.O. No. 80 states that PNB would be removed from the coverage of the CSC must
be taken to govern acts committed by the bank's employees after privatization.

Moreover, jurisdiction is conferred by no other source than law. Once jurisdiction is acquired, it
continues until the case is finally terminated.[30] The disciplinary jurisdiction of the CSC over
government officials and employees within its coverage is well-defined in Presidential Decree
(P.D.) No. 807,[31] otherwise known as The Civil Service Decree of the Philippines. Section 37[32]
thereof materially provides that the CSC shall have jurisdiction over appeals in administrative
disciplinary cases involving the imposition of the penalty of suspension for more than thirty days;
or fine in an amount exceeding thirty days' salary; demotion in rank or salary or transfer,
removal or dismissal from office.

It bears to stress on this score that the CSC was able to acquire jurisdiction over the appeal of
respondent merely upon its filing, followed by the submission of his memorandum on appeal.
From that point, the appellate jurisdiction of the CSC at once attached, thereby vesting it with
the authority to dispose of the case on the merits until it shall have been finally terminated.

Petitioner, however, takes exception. It notes that, while indeed the general rule is that
jurisdiction continues until the termination of the case and is not affected by new legislation on
the matter, the rule does not obtain where the new law provides otherwise, or where said law is
intended to apply to actions pending before its enactment. Again, petitioner insists that E.O. No.
80 is a new legislation of a character belonging to one of the exceptions inasmuch as
supposedly Section 6 thereof expressly sanctions its application to cases already pending prior
to its enactment -- particularly that provision which treats of the jurisdiction of the CSC.[33]

The argument is unconvincing.

In Latchme Motoomull v. Dela Paz,[34] the Court had dealt with a situation where jurisdiction over
certain cases was transferred by a supervening legislation to another tribunal. Latchme involved
a perfected appeal from the decision of the SEC and pending with the Court of Appeals at the
time P.D. No. 902-A was enacted which transferred appellate jurisdiction over the decisions of
the SEC from the Court of Appeals to the Supreme Court. On the question of whether the
tribunal with which the cases were pending had lost jurisdiction over the appeal upon the
effectivity of the new law, the Court ruled in the negative, citing the earlier case of Bengzon v.
Inciong,[35] thus:

The rule is that where a court has already obtained and is exercising jurisdiction over a
controversy, its jurisdiction to proceed to the final determination of the cause is not affected by
new legislation placing jurisdiction over such proceedings in another tribunal. The exception to
the rule is where the statute expressly provides, or is construed to the effect that it is
intended to operate as to actions pending before its enactment. Where a statute changing
the jurisdiction of a court has no retroactive effect, it cannot be applied to a case that was
pending prior to the enactment of the statute.[36]

Petitioner derives support from the exceptions laid down in the cases of Latchme Motoomull and
Bengzon quoted above. Yet, as discussed above, the provisions in Section 6 of E.O. No. 80 are
too clear and unambiguous to be interpreted in such a way as to abort the continued exercise by
the CSC of its appellate jurisdiction over the appeal filed before the privatization of PNB became
effective. Suffice it to say that nowhere in the said Section can we find even the slightest
indication that indeed it expressly authorizes the transfer of jurisdiction from the CSC to another
tribunal over disciplinary and administrative cases already pending with the said Commission
even prior to the enactment of the law.

All told, the Court finds that no error was committed by the Court of Appeals in reversing the
twin resolutions issued by the CSC. The Court also agrees that because the merits of
respondent's appeal with the said Commission have not been completely threshed out, it is only
correct and appropriate to remand the case back to it for further proceedings.

With this disquisition, the Court finds it unnecessary to discuss the other issues propounded by
the parties.

WHEREFORE, the petition is DENIED. The January 3, 2006 Decision of the Court of Appeals in
CA-G.R. SP No. 50084, which reversed and set aside CSC Resolution Nos. 980716 and
983099 and ordered the remand of the case to the CSC for further proceedings, is hereby
AFFIRMED.

SO ORDERED.

BENJAMIN C. JUCO VS. NATIONAL LABOR RELATIONS COMMISSION AND NATIONAL

HOUSING CORPORATION (G.R. No. 98107, August 18, 1997)

DECISION

HERMOSISIMA, JR., J.:

This is a petition for certiorari to set aside the Decision of the National Labor Relations
Commission (NLRC) dated March 14, 1991, which reversed the Decision dated May 21, 1990 of
Labor Arbiter Manuel R. Caday, on the ground of lack of jurisdiction.

Petitioner Benjamin C. Juco was hired as a project engineer of respondent National Housing
Corporation (NHC) from November 16, 1970 to May 14, 1975. On May 14, 1975, he was
separated from the service for having been implicated in a crime of theft and/or malversation of
public funds.

On March 25, 1977, petitioner filed a complaint for illegal dismissal against the NHC with the
Department of Labor.
On September 17, 1977, the Labor Arbiter rendered a decision dismissing the complaint on the
ground that the NLRC had no jurisdiction over the case.[1]

Petitioner then elevated the case to the NLRC which rendered a decision on December 28,
1982, reversing the decision of the Labor Arbiter.[2]

Dissatisfied with the decision of the NLRC, respondent NHC appealed before this Court and on
January 17, 1985, we rendered a decision, the dispositive portion thereof reads as follows:

“WHEREFORE, the petition is hereby GRANTED. The questioned decision of the respondent
National Labor Relations Commission is SET ASIDE. The decision of the Labor Arbiter
dismissing the case before it for lack of jurisdiction is REINSTATED.”[3]

On January 6, 1989, petitioner filed with the Civil Service Commission a complaint for illegal
dismissal, with preliminary mandatory injunction.[4]

On February 6, 1989, respondent NHC moved for the dismissal of the complaint on the ground
that the Civil Service Commission has no jurisdiction over the case. [5]

On April 11, 1989, the Civil Service Commission issued an order dismissing the complaint for
lack of jurisdiction. It ratiocinated that:
“The Board finds the comment and/or motion to dismiss meritorious. It was not disputed that
NHC is a government corporation without an original charter but organized/created under the
Corporate Code.

Article IX, Section 2 (1) of the 1987 Constitution provides:

‘The civil service embraces all branches, subdivisions, instrumentalities and agencies of the
government, including government owned and controlled corporations with original charters.’
(underscoring supplied)
From the aforequoted constitutional provision, it is clear that respondent NHC is not within the
scope of the civil service and is therefore beyond the jurisdiction of this board. Moreover, it is
pertinent to state that the 1987 Constitution was ratified and became effective on February 2,
1987.

WHEREFORE, for lack of jurisdiction, the instant complaint is hereby dismissed.” [6]
On April 28, 1989, petitioner filed with respondent NLRC a complaint for illegal dismissal with
preliminary mandatory injunction against respondent NHC.[7]

On May 21, 1990, respondent NLRC thru Labor Arbiter Manuel R. Caday ruled that petitioner
was illegally dismissed from his employment by respondent as there was evidence in the record
that the criminal case against him was purely fabricated, prompting the trial court to dismiss the
charges against him. Hence, he concluded that the dismissal was illegal as it was devoid of
basis, legal or factual.

He further ruled that the complaint is not barred by prescription considering that the period from
which to reckon the reglementary period of four years should be from the date of the receipt of
the decision of the Civil Service Commission promulgated on April 11, 1989. He also
ratiocinated that:
“It appears x x x complainant filed the complaint for illegal dismissal with the Civil Service
Commission on January 6, 1989 and the same was dismissed on April 11, 1989 after which on
April 28, 1989, this case was filed by the complainant. Prior to that, this case was ruled upon by
the Supreme Court on January 17, 1985 which enjoined the complainant to go to the Civil
Service Commission which in fact, complainant did. Under the circumstances, there is merit on
the contention that the running of the reglementary period of four (4) years was suspended with
the filing of the complaint with the said Commission. Verily, it was not the fault of the respondent
for failing to file the complaint as alleged by the respondent but due to, in the words of the
complainant, a ‘legal knot’ that has to be untangled.”[8]
Thereafter, the Labor Arbiter rendered a decision, the dispositive portion of which reads:
"Premises considered, judgment is hereby rendered declaring the dismissal of the complainant
as illegal and ordering the respondent to immediately reinstate him to his former position without
loss of seniority rights with full back wages inclusive of allowance and to his other benefits or
equivalent computed from the time it is withheld from him when he was dismissed on March 27,
1977, until actually reinstated.”[9]
On June 1, 1990, respondent NHC filed its appeal before the NLRC and on March 14, 1991, the
NLRC promulgated a decision which reversed the decision of Labor Arbiter Manuel R. Caday on
the ground of lack of jurisdiction.[10]

The primordial issue that confronts us is whether or not public respondent committed grave
abuse of discretion in holding that petitioner is not governed by the Labor Code.

Under the laws then in force, employees of government-owned and /or controlled corporations
were governed by the Civil Service Law and not by the Labor Code. Hence,

Article 277 of the Labor Code (PD 442) then provided:

"The terms and conditions of employment of all government employees, including employees of
government-owned and controlled corporations shall be governed by the Civil Service Law,
rules and regulations x x x.”

The 1973 Constitution, Article II-B, Section 1(1), on the other hand provided:

“The Civil Service embraces every branch, agency, subdivision and instrumentality of the
government, including government-owned or controlled corporations.”
Although we had earlier ruled in National Housing Corporation v. Juco, [11] that employees of
government-owned and/or controlled corporations, whether created by special law or formed as
subsidiaries under the general Corporation Law, are governed by the Civil Service Law and not
by the Labor Code, this ruling has been supplanted by the 1987 Constitution. Thus, the said
Constitution now provides:
“The civil service embraces all branches, subdivision, instrumentalities, and agencies of the
Government, including government owned or controlled corporations with original charter.”
(Article IX-B, Section 2[1])
In National Service Corporation (NASECO) v. National Labor Relations Commission,[12] we had
the occasion to apply the present Constitution in deciding whether or not the employees of
NASECO are covered by the Civil Service Law or the Labor Code notwithstanding that the case
arose at the time when the 1973 Constitution was still in effect. We ruled that the NLRC has
jurisdiction over the employees of NASECO on the ground that it is the 1987 Constitution that
governs because it is the Constitution in place at the time of the decision. Furthermore, we ruled
that the new phrase “with original charter” means that government-owned and controlled
corporations refer to corporations chartered by special law as distinguished from corporations
organized under the Corporation Code. Thus, NASECO which had been organized under the
general incorporation stature and a subsidiary of the National Investment Development
Corporation, which in turn was a subsidiary of the Philippine National Bank, is excluded from the
purview of the Civil Service Commission.
We see no cogent reason to depart from the ruling in the aforesaid case.

In the case at bench, the National Housing Corporation is a government owned corporation
organized in 1959 in accordance with Executive Order No. 399, otherwise known as the Uniform
Charter of Government Corporation, dated January 1, 1959. Its shares of stock are and have
been one hundred percent (100%) owned by the Government from its incorporation under Act
1459, the former corporation law. The government entities that own its shares of stock are the
Government Service Insurance System, the Social Security System, the Development Bank of
the Philippines, the National Investment and Development Corporation and the People’s
Homesite and Housing Corporation.[13] Considering the fact that the NHA had been incorporated
under act 1459, the former corporation law, it is but correct to say that it is a government-owned
or controlled corporation whose employees are subject to the provisions of the Labor Code. This
observation is reiterated in recent case of Trade Union of the Philippines and Allied Services
(TUPAS) v. National Housing Corporation,[14] where we held that the NHA is now within the
jurisdiction of the Department of Labor and Employment, it being a government-owned and/or
controlled corporation without an original charter. Furthermore, we also held that the workers or
employees of the NHC (now NHA) undoubtedly have the right to form unions or employee’s
organization and that there is no impediment to the holding of a certification election among
them as they are covered by the Labor Code.

Thus, the NLRC erred in dismissing petitioner’s complaint for lack of jurisdiction because the
rule now is that the Civil Service now covers only government-owned or controlled corporations
with original charters.[15] Having been incorporated under the Corporation Law, its relations with
its personnel are governed by the Labor Code and come under the jurisdiction of the National
Labor Relations Commission.

One final point. Petitioners have been tossed from one forum to another for a simple illegal
dismissal case. It is but apt that we put an end to his dilemma in the interest of justice.

WHEREFORE, the decision of the NLRC in NLRC NCR-04-02036089 dated March 14, 1991 is
hereby REVERSED and the Decision of the Labor Arbiter dated May 21, 1990 is REINSTATED.
SO ORDERED.

COMMISSION ON ELECTIONS (COMELEC)

TUPAY T. LOONG VS. COMMISSION ON ELECTIONS AND ABDUSAKUR TAN (G.R. No.
133676, April 14, 1999)

DECISION

PUNO, J.:

In a bid to improve our elections, Congress enacted R.A. No. 8436 on December 22, 1997
prescribing the adoption of an automated election system. The new system was used in the
May 11, 1998 regular elections held in the Autonomous Region in Muslim Mindanao (ARMM)
which includes the Province of Sulu. Atty. Jose Tolentino, Jr. headed the COMELEC Task Force
to have administrative oversight of the elections in Sulu.

The voting in Sulu was relatively peaceful and orderly.[1] The problem started during the
automated counting of votes for the local officials of Sulu at the Sulu State College. At about 6
a.m. of May 12, 1998, some election inspectors and watchers informed Atty. Tolentino, Jr. of
discrepancies between the election returns and the votes cast for the mayoralty candidates in
the municipality of Pata. Some ballots picked at random by Atty. Tolentino, Jr. confirmed that
votes in favor of a mayoralty candidate were not reflected in the printed election returns. He
suspended the automated counting of ballots in Pata and immediately communicated the
problem to the technical experts of COMELEC and the suppliers of the automated machine.
After consultations, the experts told him that the problem was caused by the
misalignment of the ovals opposite the names of candidates in the local ballots. They
found nothing wrong with the automated machines. The error was in the printing of the local
ballots, as a consequence of which, the automated machines failed to read them correctly. [2]

At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency meeting of the local
candidates and the military-police officials overseeing the Sulu elections. Those who attended
were the various candidates for governor, namely, petitioner Tupay Loong, private respondent
Abdusakur Tan, intervenor Yusop Jikiri and Kimar Tulawie. Also in attendance were Brig. Gen.
Edgardo Espinosa, AFP, Marine forces, Southern Philippines, Brig. Gen. Percival Subala, AFP,
3rd Marine Brigade, Supt. Charlemagne Alejandrino, Provincial Director, Sulu, PNP Command
and congressional candidate Bensandi Tulawie.[3]

The meeting discussed how the ballots in Pata should be counted in light of the misaligned
ovals. There was lack of agreement. Those who recommended a shift to manual count were
Brig. Generals Espinosa and Subala, PNP Director Alejandrino, gubernatorial candidates Tan
and Tulawie and congressional candidate Bensandi Tulawie. Those who insisted on an
automated count were gubernatorial candidates Loong and Jikiri. In view of their differences in
opinion, Atty. Tolentino, Jr. requested the parties to submit their written position papers. [4]

Reports that the automated counting of ballots in other municipalities in Sulu was not
working well were received by the COMELEC Task Force. Local ballots in five (5)
municipalities were rejected by the automated machines. These municipalities were
Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots were rejected because they had the
wrong sequence code.[5]

Private respondent Tan and Atty. Tolentino, Jr. sent separate communications to the COMELEC
en banc in Manila. Still, on May 12, 1998, Tan requested for the suspension of the automated
counting of ballots throughout the Sulu province.[6] On the same day, COMELEC issued Minute
Resolution No. 98-1747 ordering a manual count but only in the municipality of Pata. The
resolution reads:[7]

"x x x x x x x x x

"In the matter of the Petition dated May 12, 1998 of Abdusakur Tan, Governor, Sulu, to suspend
or stop counting of ballots through automation (sic) machines for the following grounds, quoted
to wit
'1.. The Election Returns for the Municipality of Pata, Province of Sulu-District II do not reflect or
reveal the mandate of the voters:

'DISCUSSIONS

'That the watchers called the attention of our political leaders and candidates regarding their
discovery that the election returns generated after the last ballots for a precinct is scanned
revealed that some candidates obtained zero votes, among others the Provincial Board
Members, Mayor, Vice-Mayor, and the councilors for the LAKAS-NUCD-UMDP;

'That the top ballot, however, reveals that the ballots contained votes for Anton Burahan,
candidate for Municipal Mayor while the Election Return shows zero vote;

'That further review of the Election Return reveals that John Masillam, candidate for
Mayor under the LAKAS-NUCD-UMDP-MNLF obtains (sic) 100% votes of the total number
of voters who actually voted;
'The foregoing discrepancies were likewise noted and confirmed by the chairmen, poll clerks
and members of the Board of Election Inspectors (BEI) such as Rena Jawan, Matanka Hajirul,
Dulba Kadil, Teddy Mirajuli, Rainer Talcon, Mike Jupakal, Armina Akmad, Romulo Roldan and
Lerma Marawali to mention some;

'The Pata incident can be confirmed by no less than Atty. Jose Tolentino, Head, Task Force
Sulu, whose attention was called regarding the discrepancies;

'The foregoing is a clear evidence that the automated machine (scanner) cannot be relied upon
as to truly reflect the contents of the ballots. If such happened in the Municipality of Pata, it is
very possible that the same is happening in the counting of votes in the other municipalities of
this province. If this will not be suspended or stopped, the use of automated machines will serve
as a vehicle to frustrate the will of the sovereign people of Sulu;

'Wherefore, the foregoing premises considered and in the interest of an honest and orderly
election, it is respectfully prayed of this Honorable Commission that an Order be issued
immediately suspending or stopping the use of the automated machine (scanner) in the
counting of votes for all the eighteen (18) municipalities in the Province of Sulu and in lieu
thereof, to avoid delay, counting be done through the usual way known and tested by us.'
"While the commission does not agree with the conclusions stated in the petition, and
the failure of the machine to read the votes may have been occasioned by other factors, a
matter that requires immediate investigation, but in the public interest, the Commission,
'RESOLVED to grant the Petition dated May 12, 1998 and to Order that the counting of
votes shall be done manually in the Municipality of PATA, the only place in Sulu where
the automated machine failed to read the ballots, subject to notice to all parties
concerned."'
Before midnight of May 12,1998, Atty. Tolentino, Jr. was able to send to the COMELEC en banc
his report and recommendation, urging the use of the manual count in the entire Province of
Sulu, viz:[8]
"The undersigned stopped the counting in the municipality of Pata since he discovered that
votes for a candidate for mayor was credited in favor of the other candidate. Verification with the
Sulu Technical Staff, including Pat Squires of ES & S, reveals that the cause of the error is the
way the ballot was printed. Aside from misalignment of the ovals and use of codes assigned to
another municipality (which caused the rejection of all local ballots in one precinct in Talipao),
error messages appeared on the screen although the actual condition of the ballots would have
shown a different message. Because of these, the undersigned directed that counting for all
ballots in Sulu be stopped to enable the Commission to determine the problem and rectify the
same. It is submitted that stopping the counting is more in consonance with the Commission's
mandate than proceeding with an automated but inaccurate count.

"In view of the error discovered in Pata and the undersigned's order to suspend the counting,
the following documents were submitted to him.

"1. Unsigned letter dated May 12, 1998 submitted by Congressman Tulawie for manual counting
and canvassing;

"2. Petition of Governor Sakur Tan for manual counting;

"3. Position paper of Tupay Loong, Benjamin Loong and Asani Tamang for automated count;

"4. MNLF Position for automated count; and

"5. Recommendation of General E.V. Espinosa, General PM Subala, and PD CS Alejandrino for
manual count;

"Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely
intended to tame a disorderly crowd, inside and outside SSC, or a show of force.

"It is submitted that since an error was discovered in a machine which is supposed to
have an error rate of 1: 1,000,000, not a few people would believe that this error in Pata
would extend to the other municipalities. Whether or not this is true, it would be more
prudent to stay away from a lifeless thing that has sown tension and anxiety among and
between the voters of Sulu.

Respectfully submitted:
12 May 1998
(Sgd.) JOSE M. TOLENTINO, JR."
The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving Atty.
Tolentino, Jr.'s recommendation and the manner of its implementation as suggested by
Executive Director Resurreccion Z. Borra. The Resolution reads:[9]
"In the matter of the Memorandum dated 13 May 1998 of Executive Director Resurreccion Z.
Borra, pertinent portion of which is quoted as follows:

"In connection with Min. Res. No. 98-1747 promulgated May 12, 1998 which resolved to order
that the counting of votes shall be done manually in the municipality of Pata, the only place in
Sulu where the automated counting machine failed to read the ballots, subject to notice to all
parties concerned, please find the following:

"1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force Head, Sulu, addressed to
the Executive Director on the subject counting and canvassing in the municipality of Pata due to
the errors of the counting of votes by the machine brought about by the error in the printing of
the ballot, causing misalignment of ovals and use of codes assigned to another municipality.

He recommended to revert to the manual counting of votes in the whole of Sulu. He attached
the stand of Congressman Tulawie, Governor Sakur Tan and recommendation of Brigadier
General Edgardo Espinosa, General Percival Subla, P/Supt. Charlemagne Alejandrino for
manual counting. The position paper of former Governor Tupay Loong, Mr. Benjamin Loong and
Mr. Asani S. Tammang, who are candidates for Governor and Congressman of 1st and 2nd
Districts respectively, who wanted the continuation of the automated counting.

"While the forces of AFP are ready to provide arm (sic) security to our Comelec officials,
BEIs and other deputies, the political tensions and imminent violence and bloodshed
may not be prevented, as per report received, the MNLF forces are readying their forces
to surround the venue for automated counting and canvassing in Sulu in order that the
automation process will continue.

"Director Borra recommends, that while he supports Minute Resolution No. 98-1747,
implementation thereof shall be done as follows:

"1. That all the counting machines from Jolo, Sulu be transported back by C130 to Manila
and be located at the available space at PICC for purposes of both automated and
manual operations. This approach will keep the COMELEC officials away from violence
and bloodshed between the two camps who are determined to slug each other as above
mentioned in Jolo, Sulu. Only authorized political party and candidate watchers will be
allowed in PICC with proper security, both inside and outside the perimeters of the venue
at PICC.
"2. With this process, there will be an objective analysis and supervision of the
automated and manual operations by both the MIS and Technical Expert of the ES & S
away from the thundering mortars and the sounds of sophisticated heavy weapons from
both sides of the warring factions.

"3. Lastly, it will be directly under the close supervision and control of Commission on Elections
En Banc.

"RESOLVED:

"1. To transport all counting machines from Jolo, Sulu by C130 to Manila for purposes of
both automated and manual operations, with notice to all parties concerned;

"2. To authorize the official travel of the board of canvassers concerned for the conduct
of the automated and manual operations of the counting of votes at PICC under the close
supervision and control of the Commission En Banc. For this purpose, to make available
a designated space at the PICC;

"3. To authorize the presence of only the duly authorized representative of the political
parties concerned and the candidates watchers both outside and inside the perimeters of
the venue at PICC."
Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution No. 98-1750
and called for another meeting the next day, May 14, 1998, to discuss the implementation
of the resolution.[10] The meeting was attended by the parties, by Lt. Gen. Joselin Nazareno,
then the Chief of the AFP Southern Command, the NAMFREL, media, and the public. Especially
discussed was the manner of transporting the ballots and the counting machines to the PICC in
Manila. They agreed to allow each political party to have at least one (1) escort/ watcher for
every municipality to acompany the flight. Two C130s were used for the purpose. [11]

On May 15, 1998, the COMELEC en banc issued Minute Resolution No. 98-1796 laying
down the rules for the manual count, viz:[12]
"In the matter of the Memorandum dated 15 May 1998 of Executive Director Resurreccion Z.
Borra, quoted to wit:

'In the implementation of COMELEC Min. Resolution No. 98-1750 promulgated 13 May 1998 in
the manual counting of votes of Pata, Sulu, and in view of the arrival of the counting machines,
ballot boxes, documents and other election paraphernalia for the whole province of Sulu now
stored in PICC, as well as the arrival of the Municipal Board of Canvassers of said Municipality
in Sulu, and after conference with some members of the Senior Staff and Technical Committee
of this Commission, the following are hereby respectfully recommended:

'1. Manual counting of the local ballots of the automated election system in Pata, Sulu;

'2. Automated counting of the national ballots considering that there are no questions raised on
the National Elective Officials as pre-printed in the mark-sensed ballots;

'3. The creation of the following Special Boards of Inspectors under the supervision of Atty. Jose
M. Tolentino, Jr., Task Force Head, Sulu, namely:

a) Atty. Mamasapunod M. Aguam

Ms. Gloria Fernandez

Ms. Esperanza Nicolas

b) Director Ester L. Villaflor-Roxas

Ms. Celia Romero

Ms. Rebecca Macaraya

c) Atty. Zenaida S. Soriano

Ms. Jocelyn Guiang

Ma. Jacelyn Tan

d) Atty. Erlinda C. Echavia

Ms. Theresa A. Torralba

Ms. Ma. Carmen Llamas

e) Director Estrella P. de Mesa

Ms. Teresita Velasco

Ms. Nelly Jaena

'4. Additional Special Board of Inspectors may be created when necesary.

'5. The Provincial Board of Canvassers which by standing Resolution is headed by the Task
Force Sulu Head shall consolidate the manual and automated results as submitted by the
Municipal Boards of Canvassers of the whole province with two members composed of
Directors Estrella P. de Mesa and Ester L. Villaflor-Roxas;

'6. The political parties and the candidates in Sulu as well as the Party-List Candidates are
authorized to appoint their own watchers upon approval of the Commission',

'RESOLVED to approve the foregoing recommendations in the implementation of Min.

Resolution No. 98-1750 promulgated on 13 May 1998 providing for the manual counting of
votes in the municipality of Pata, Sulu.

'RESOLVED, moreover, considering the recommendation of Comm. Manolo B. Gorospe,

Commissioner-In-Charge, ARMM, to conduct a parallel manual counting on all 18 municipalities
of Sulu as a final guidance of the reliability of the counting machine which will serve as basis for
the proclamation of the winning candidates and for future reference on the use of the automated
counting machine."'
On May 18, 1998, petitioner filed his objection to Minute Resolution No. 98-1796, viz:[13]
"1. The minute resolution under agenda No. 98-1796 violates the provisions of Republic Act No.
8436 providing for an automated counting of the ballots in the Autonomous Region in Muslim
Mindanao. The automated counting is mandatory and could not be substituted by a manual
counting. Where the machines are allegedly defective, the only remedy provided for by law is to
replace the machine. Manual counting is prohibited by law;

"2. There are strong indications that in the municipality of Pata the ballots of the said
municipality were rejected by the counting machine because the ballots were tampered and/or
the texture of the ballots fed to the counting machine are not the official ballots of the Comelec;

"3. The automated counting machines of the Comelec have been designed in such a way that
only genuine official ballots could be read and counted by the machine;

"4. The counting machines in the other municipalities are in order. In fact, the automated
counting has already started. The automated counting in the municipalities of Lugus and
Panglima Tahil has been completed. There is no legal basis for the 'parallel manual counting'
ordained in the disputed minute resolution."
Nonetheless, COMELEC started the manual count on the same date, May 18,1998.

On May 25, 1998, petitioner filed with this Court a petition for certiorari and prohibition under
Rule 65 of the Rules of Court. He contended that: (a) COMELEC issued Minute Resolution Nos.
98-1747, 98-1750, and 98-1798 without prior notice and hearing to him; (b) the order for manual
counting violated R.A. No. 8436; (c) manual counting gave "opportunity to the following election
cheatings," namely:
"(a) The counting by human hands of the tampered, fake and counterfeit ballots which the
counting machines have been programmed to reject (Section 7, 8 & 9 of Rep. Act 8436).

"(b) The opportunity to substitute the ballots all stored at the PICC. In fact, no less than the head
of the COMELEC Task Force of Sulu, Atty. Jose M. Tolentino, Jr. who recommended to the
COMELEC the anomalous manual counting, had approached the watchers of petitioners to
allow the retrieval of the ballots, saying "tayo, tayo lang mga watchers, pag-usapan natin,"
dearly indicating overtures of possible bribery of the watchers of petitioner (ANNEX E).

"(c) With the creation by the COMELEC of only 22 Boards of Election Inspectors to manually
count the 1,194 precincts, the manipulators are given sufficient time to change and tamper the
ballots to be manually counted.

"(d) There is the opportunity of delaying the proclamation of the winning candidates through the
usually dilatory moves in a pre-proclamation controversy because the returns and certificates of
canvass are already human (sic) made. In the automated counting there is no room for any
dilatory pre-proclamation controversy because the returns and the MBC and PBC certificates of
canvass are machine made and immediate proclamation is ordained thereafter."
Petitioner then prayed:

"WHEREFORE, it is most especially prayed of the Honorable Court that:

"1. upon filing of this petition, a temporary restraining order be issued enjoining the COMELEC
from conducting a manual counting of the ballots of the 1,194 precincts of the 18 municipalities
of the Province of Sulu but instead proceed with the automated counting of the ballots,
preparation of the election returns and MBC, PBC certificates of canvass and proclaim the
winning candidates on the basis of the automated counting and consolidation of results;

"2. this petition be given due course and the respondents be required to answer;

"3. after due hearing, the questioned COMELEC En Banc Minute Resolutions of May 12, 13, 15,
and 17, 1998 be all declared null and void ab initio for having been issued without jurisdiction
and/or with grave abuse of discretion amounting to lack of jurisdiction and for being in violation
of due process of law;

" 4. the winning candidates of the Province of Sulu be proclaimed on the basis of the results of
the automated counting, automated election returns, automated MBC and PBC certificates of
canvass;
"x x x."
On June 8, 1998, private respondent Tan was proclaimed governor- elect of Sulu on the
basis of the manual count.[14] Private respondent garnered 43,573 votes. Petitioner was
third with 35,452 votes or a difference of 8,121 votes.

On June 23, 1998, this Court required the respondents to file their Comment to the petition and
directed the parties "to maintain the status quo prevailing at the time of the filing of the
petition."[15] The vice-governor elect was allowed to temporarily discharge the powers and
functions of governor.

On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate for governor filed
a motion for intervention and a Memorandum in Intervention.[16] The result of the manual count
showed he received 38,993 votes and placed second. Similarly, he alleged denial of due
process, lack of factual basis of the COMELEC resolutions and illegality of manual count in light
of R.A. No. 8436. TheCourt noted his intervention.[17] As similar petition for intervention filed by
Abdulwahid Sahidulla, a candidate for vice-governor, on October 7, 1998 was denied as it was
filed too late.

In due time, the parties filed their respective Comments. On September 25, 1998, the Court
heard the parties in oral arguments[18] which was followed by the submission of their written
memoranda.

The issues for resolution are the following:

1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of Court is
the appropriate remedy to invalidate the disputed COMELEC resolutions.

2. Assuming the appropriateness of the remedy, whether or not COMELEC committed grave
abuse of discretion amounting to lack of jurisdiction in ordering a manual count.

2.a. Is there a legal basis for the manual count?

2-b. Are its factual bases reasonable?

2.c. Were the petitioner and the intervenor denied due process by the COMELEC when it
ordered a manual count?
3. Assuming the manual count is illegal and that its result is unreliable, whether or not it is
proper to call for a special election for the position of governor of Sulu.
We shall resolve the issues in seriatim.

First. We hold that certiorari is the proper remedy of the petitioner. Section 7, Article IX(A) of the
1987 Constitution states that if "unless provided by this Constitution or by law, any decision,
order or ruling of each Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof." We have interpreted this
provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise
of its adjudicatory or quasi-judicial powers.[19] Contrariwise, administrative orders of the
COMELEC are not, as a general rule, fit subjects of a petition for certiorari. The main issue in
the case at bar is whether the COMELEC gravely abused its discretion when it ordered a
manual count of the 1998 Sulu local elections. A resolution of the issue will involve an
interpretation of R.A. No. 8436 on automated election in relation to the broad power of the
COMELEC under Section 2(1), Article IX(C) of the Constitution "to enforce and administer all
laws and regulations relative to the conduct of an election x x x." The issue is not only legal but
one of first impression and undoubtedly suffused with significance to the entire nation. It is
adjudicatory of the right of the petitioner, the private respondent and the intervenor to the
position of governor of Sulu. These are enough considerations to call for an exercise of the
certiorari jurisdiction of this Court.

Second. The big issue, one of first impression, is whether the COMELEC committed grave
abuse of discretion amounting to lack of jurisdiction when it ordered a manual count in light of
R.A. No. 8436. The post election realities on ground will show that the order for a manual count
cannot be characterized as arbitrary, capricious or whimsical.

a. It is well established that the automated machines failed to read correctly the ballots in
the municipality of Pata. A mayoralty candidate, Mr. Anton Burahan, obtained zero votes
despite the representations of the Chairman of the Board of Election Inspectors and
others that they voted for him. Another candidate garnered 100% of the votes.

b. It is likewise conceded that the automated machines rejected and would not count the
local ballots in the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo.

c. These flaws in the automated counting of local ballots in the municipalities of Pata,
Talipao, Siasi, Indanan, Tapal and Jolo were carefully analyzed by the technical experts
of COMELEC and the supplier of the automated machines. All of them found nothing
wrong with the automated machines. They traced the problem to the printing of local
ballots by the National Printing Office. In the case of the municipality of Pata, it was
discovered that the ovals of the local ballots were misaligned and could not be read
correctly by the automated machines. In the case of the municipalities of Talipao, Siasi,
Indanan, Tapal and Jolo, it turned out that the local ballots contained the wrong sequence
code. Each municipality was assigned a sequence code as a security measure. Ballots
with the wrong sequence code were programmed to be rejected by the automated
machines.

It is plain that to continue with the automated count in these five (5) municipalities would result in
a grossly erroneous count. It cannot also be gainsaid that the count in these five (5)
municipalities will affect the local elections in Sulu. There was no need for more sampling of
local ballots in these municipalities as they suffered from the same defects. All local ballots in
Pata with misaligned ovals will be erroneously read by the automated machines. Similarly, all
local ballots in Talipao, Siasi, Indanan, Tapal and Jolo with wrong sequence codes are certain to
be rejected by the automated machines. There is no showing in the records that the local ballots
in these five (5) municipalities are dissimilar which could justify the call for their greater
sampling.

Third. These failures of automated counting created post election tension in Sulu, a province
with a history of violent elections. COMELEC had to act decisively in view of the fast
deteriorating peace and order situation caused by the delay in the counting of votes. The
evidence of this fragile peace and order cannot be downgraded. In his handwritten report to the
COMELEC dated May 12, 1998, Atty. Tolentino, Jr. stated:
"x x x

"Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely
intended to tame a disorderly crowd inside and outside SSC, or a show of force.

"It is submitted that since an error was discovered in a machine which is supposed to have an
error rate of 1:1,000,000, not a few people would believe that this error in Pata would extend to
the other municipalities. Whether or not this is true, it would be more prudent to stay away
from a lifeless thing that has sown tension and anxiety among and between the voters of
Sulu."
Executive Director Resurreccion Z. Borra, Task Force Head, ARMM in his May 13,1998
Memorandum to the COMELEC likewise stated:
"x x x

"While the forces of AFP are ready to provide arm (sic) security to our COMELEC
officials, BEI's and other deputies, the political tensions and imminent violence and
bloodshed may not be prevented, as per report received, the MNLF forces are readying
their forces to surround the venue for automated counting and canvassing in Sulu in
order that automation process will continue."
Last but not the least, the military and the police authorities unanimously recommended manual
counting to preserve peace and order. Brig. Gen. Edgardo V. Espinosa, Commanding General,
Marine Forces Southern Philippines, Brig. Gen. Percival M. Subala, Commanding General, 3rd
Marine Brigade, and Supt. Charlemagne S. Alejandrino, Provincial Director, Sulu PNP
Command explained that it "x x x will not only serve the interest of majority of the political parties
involved in the electoral process but also serve the interest of the military and police forces in
maintaining peace and order throughout the province of Sulu."

An automated count of the local votes in Sulu would have resulted in a wrong count, a travesty
of the sovereignty of the electorate. Its aftermath could have been a bloodbath. COMELEC
avoided this imminent probability by ordering a manual count of the votes. It would be the height
of irony if the Court condemns COMELEC for aborting violence in the Sulu elections.

Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied due process.
The Tolentino memorandum clearly shows that they were given every opportunity to oppose the
manual count of the local ballots in Sulu. They were orally heard. They later submitted written
position papers. Their representatives escorted the transfer of the ballots and the automated
machines from Sulu to Manila. Their watchers observed the manual count from beginning to
end. We quote the Tolentino memorandum, viz:
"x x x

"On or about 6:00 a.m. of May 12, 1998, while automated counting of all the ballots for the
province of Sulu was being conducted at the counting center located at the Sulu State College,
the COMELEC Sulu Task Force Head (TF Head) proceeded to the room where the counting
machine assigned to the municipality of Pata was installed to verify the cause of the commotion
therein.

"During the interview conducted by the TF Head, the members of the Board of Election
Inspectors (BEI) and watchers present in said room stated that the counting machine assigned
to the municipality of Pata did not reflect the true results of the voting thereat. The members of
the BEI complained that their votes were not reflected in the printout of the election returns since
per election returns of their precincts, the candidate they voted for obtained "zero". After
verifying the printout of some election returns as against the official ballots, the TF Head
discovered that votes cast in favor of a mayoralty candidate were credited in favor of his
opponents.

"In his attempt to remedy the situation, the TF Head suspended the counting of all ballots for
said municipality to enable COMELEC field technicians to determine the cause of the technical
error, rectify the same, and thereafter proceed with automated counting. In the meantime, the
counting of the ballots for the other municipalities proceeded under the automated system.

"Technical experts of the supplier based in Manila were informed of the problem and after
numerous consultations through long distance calls, the technical experts concluded that the
cause of the error was in the manner the ballots for local positions were printed by the National
Printing Office (NPO), namely, that the ovals opposite the names of the candidates were not
properly aligned. As regards the ballots for national positions, no error was found.
"Since the problem was not machine-related, it was obvious that the use of counting machines
from other municipalities to count the ballots of the municipality of Pata would still result in the
same erroneous count. Thus, it was found necessary to determine the extent of the error in the
ballot printing process before proceeding with the automated counting.

"To avoid a situation where proceeding with automation will result in an erroneous count, the TF
Head, on or about 11:45 a.m. ordered the suspension of the counting of all ballots in the
province to enable him to call a meeting with the heads of the political parties which fielded
candidates in the province, inform them of the technical error, and find solutions to the problem.

"On or about 12:30 p.m., the TF Head presided over a conference at Camp General Bautista
(3rd Marine Brigade) to discuss the process by which the will of the electorate could be
determined. Present during the meeting were:

1. Brig. Gen. Edgardo Espinoza

Marine Forces, Southern Philippines

2. Brig. Gen. Percival Subala

3rd Marine Brigade

3. Provincial Dir. Charlemagne Alejandrino

Sulu PNP Command

4. Gubernatorial Candidate Tupay Loong

LAKAS-NUCD Loong Wing

5. Gubernatorial Candidate Abdusakur Tan

LAKAS-NUCD Tan Wing

6. Gubernatorial Candidate Yusop Jikiri

LAKAS-NUCD-MNLF Wing

7. Gubernatorial Candidate Kimar Tulawie

LAMMP

8. Congressional Candidate Bensaudi Tulawie

LAMMP

"During said meeting, all of the above parties verbally advanced their respective positions.
Those in favor of a manual count were:

1. Brig. Gen. Edgardo Espinoza

2. Brig. Gen. Percival Subala

3. Provincial Dir. Charlemagne Alenjandrino

4. Gubernatorial Candidate Abdusakur Tan

5. Gubernatorial Candidate Kimar Tulawie

6. Congressional Candidate Bensaudi Tulawie and those in favor of an automated count

were:
1. Gubernatorial Candidate Tupay Loong

2. Gubernatorial Candidate Yusop Jikiri

"Said parties were then requested by the TF Head to submit their respective position
papers so that the same may be forwarded to the Commission en banc, together with the
recommendations of the TF Head.

'The TF Head returned to the counting center at the Sulu State College and called his technical
staff to determine the extent of the technical error and to enable him to submit the appropriate
recommendation to the Commission en banc.

"Upon consultation with the technical staff, it was discovered that in the Municipality of Talipao,
some of the local ballots were rejected by the machine. Verification showed that while the
ballots were genuine, ballot paper bearing a wrong "sequence code" was used by the NPO
during the printing process.

"Briefly, the following is the manner by which a sequence code" determined genuineness of a
ballot. A municipality is assigned a specific machine (except for Jolo, which was assigned two
(2) machines, and sharing of one (1) machine by two (2) municipalities, namely, H.P. Tahil and
Maimbung, Pandami and K. Caluang, Pata and Tongkil and Panamao and Lugus). A machine is
then assigned a specific "sequence code" as one of the security features to detect whether the
ballots passing through it are genuine. Since a counting machine is programmed to read the
specific "sequence code" assigned to it, ballots which bear a "sequence code" assigned to
another machine/municipality, even if said ballots were genuine, will be rejected by the machine.

"Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had the same problem of
rejected ballots. However, since the machine operators were not aware that one of the reasons
for rejection of ballots is the use of wrong "sequence code", they failed to determine whether the
cause for rejection of ballots for said municipalities was the same as that for the municipality of
Talipao.

"In the case of 'misaligned ovals', the counting machine will not reject the ballot because all the
security features, such as "sequence code", are present in the ballot, however, since the oval is
misaligned or not placed in its proper position, the machine will credit the shaded oval for the
position where the machine is programmed to "read" the oval. Thus, instead of rejecting the
ballot, the machine will credit the votes of a candidate in favor of his opponent, or in the adjacent
space where the oval should be properly placed.

"It could not be determined if the other municipalities also had the same technical error in their
official ballots since the "misaligned ovals" were discovered only after members of the Board of
Election Inspectors of the Municipality of Pata complained that their votes were not reflected in
the printout of the election returns.

"As the extent or coverage of the technical errors could not be determined, the TF Head, upon
consultation with his technical staff, was of the belief that it would be more prudent to count the
ballots manually than to proceed with an automated system which will result in an erroneous
count.

"The TF Head thus ordered the indefinite suspension of counting of ballots until such time as the
Commission shall have resolved the petition/position papers to be submitted by the parties. The
TF Head and his staff returned to Camp General Bautista to await the submission of the position
papers of the parties concerned.

"Upon receipt of the position papers of the parties, the TF Head faxed the same in the
evening of May 12, 1998, together with his handwritten recommendation to proceed with
a manual count." Attached are copies of the recommendations of the TF Head (Annex "1"),
and the position papers of the Philippine Marines and Philippine National Police (Annex "2"),
LAKAS-NUCD Tan Wing Annex (Annex "3"), Lakas-NUCD Loong Wing (Annex "4"), LAKAS-
NUCD-MNLF Wing (Annex "5") and LAMMP (Annex "6"). Said recommendations and position
papers were the bases for the promulgation of COMELEC Minute Resolution No. 98-1750 dated
May 13, 1998 (Annex "7"), directing among other things, that the ballots and counting machines
be transported by C130 to Manila for both automated and manual operations.

"Minute Resolution No. 98-1750 was received by the TF Head through fax on or about
5:30 in the evening of May 13, 1998. Copies were then served through personal delivery
to the heads of the political parties, with notice to them that another conference will be
conducted at the 3rd Marine Brigade on May 14, 1998 at 9:00 o'clock in the morning, this
time, with Lt. General Joselin Nazareno, then AFP Commander, Southern Command.
Attached is a copy of said notice (Annex "8") bearing the signatures of candidates Tan
(Annex "8-A") and Loong (Annex "8-B"), and the representatives of candidates Tulawie
(Annex "8-C") and Jikiri (Annex "8-D").

"On May 14, 1998, the TF Head presided over said conference in the presence of the heads of
the political parties of Sulu, together with their counsel, including Lt. Gen. Nazareno, Brig. Gen.
Subala, representatives of the NAMFREL, media and the public.

"After hearing the sides of all parties concerned, including that of NAMFREL, the
procedure by which the ballots and counting machines were to be transported to Manila
was finalized, with each political party authorized to send at least one (1) escort/watcher
for every municipality to accompany the ballot boxes and counting machines from the
counting center at the Sulu State College to the Sulu Airport up to the PICC, where the
COMELEC was then conducting its Senatorial Canvass. There being four parties, a total
of seventy-two (72) escorts/watchers accompanied the ballots and counting machines.

"Two C130s left Sulu on May 15, 1998 to transport all the ballot boxes and counting
machines, accompanied by all the authorized escorts. Said ballots boxes reached the
PICC on the same day, with all the escorts/watchers allowed to station themselves at the
ballot box storage area. On May 17, 1998, another C130 left Sulu to ferry the members of
the board of canvassers."
Fifth. The evidence is clear that the integrity of the local ballots was safeguarded when they
were transferred from Sulu to Manila and when they were manually counted.

As shown by the Tolentino memorandum, representatives of the political parties escorted the
transfer of ballots from Sulu to PICC. Indeed, in his May 14, 1992 letter to Atty. Tolentino, Jr.,
petitioner Tupay Loong himself submitted the names of his representatives who would
accompany the ballot boxes and other election paraphernalia, viz:[20]
"Dear Atty. Tolentino:

"Submitted herewith are the names of escort(s) to accompany the ballot boxes and other
election pharaphernalia to be transported to COMELEC, Manila, to wit:
1. Jolo - Joseph Lu
2. Patikul - Fathie B. Loong
3. Indanan - Dixon Jadi
4. Siasi - Jamal Ismael
5. K. Kaluang - Enjimar Abam
6. Pata - Marvin Hassan
7. Parang - Siyang Loong
8. Pangutaran - Hji. Nasser Loong
9. Marunggas - Taib Mangkabong
10. Luuk - Jun Arbison
11. Pandami - Orkan Osman
12. Tongkil - Usman Sahidulla
13. Tapul - Alphawanis Tupay
14. Lugus - Patta Alih
15. Maimbong - Mike Bangahan
16. P. Estino - Yasir lbba
17. Panamao - Hamba Loong
18. Talipao - Ismael Sali
"Hoping for your kind and (sic) consideration for approval on this matter.

"Thank you.

Very truly yours,

(Sgd.) Tupay T. Loong

(Sgd.) Asani S. Tammang"

The ballot boxes were consistently under the watchful eyes of the parties' representatives. They
were placed in an open space at the PICC. The watchers stationed themselves some five (5)
meters away from the ballot boxes. They watched 24 hours a day and slept at the PICC.[21]

The parties' watchers again accompanied the transfer of the ballot boxes from PICC to the
public schools of Pasay City where the ballots were counted. After the counting they once more
escorted the return of the ballot boxes to PICC.[22]

In fine, petitioner's charge that the ballots could have been tampered with before the manual
counting is totally unfounded.

Sixth. The evidence also reveals that the result of the manual count is reliable.

It bears stressing that the ballots used in the case at bar were specially made to suit an
automated election. The ballots were uncomplicated. They had fairly large ovals opposite the
names of candidates. A voter needed only to check the oval opposite the name of his candidate.
When the COMELEC ordered a manual count of the votes, it issued special rules as the
counting involved a different kind of ballot, albeit, more simple ballots. The Omnibus Election
Code rules on appreciation of ballots cannot apply for they only apply to elections where the
names of candidates are handwritten in the ballots. The rules were spelled out in Minute
Resolution 98-1798, viz:[23]

"In the matter of the Memorandum dated 17 May 1998 of Executive Director Resurreccion Z.
Borra, re procedure of the counting of votes for Sulu for the convening of the Board of Election
Inspectors, the Municipal Board of Canvassers and the Provincial Board of Canvassers on May
18, 1998 at 9:00 a.m. at the Philippine International Convention Center (PICC),
'RESOLVED to approve the following procedure for the counting of votes for Sulu at the PICC:

'I. Common Provisions:

'1. Open the ballot box, retrieve the Minutes of Voting and the uncounted ballots or the envelope
containing the counted ballots as the case may be;

'2. Segregate the national ballots from the local ballots;

'3. Count the number of pieces of both the national and local ballots and compare the same with
the number of votes who actually voted as stated in the Minutes of Voting:

- If there is no Minutes of Voting, refer to the Voting Records at the back of the VRRs to
determine the number of voters who actually voted.

- If there are more ballots than the number of voters who actually voted, the poll clerk shall draw
out as many local and national ballots as may be equal to the excess and place them in the
envelope for excess ballots.

'II Counting of Votes

'A. National Ballots:

'1. If the national ballots have already been counted, return the same inside the envelope for
counted ballots, reseal and place the envelope inside the ballot box;

'2. If the national ballots have not yet been counted, place them inside an envelope and give the
envelope through a liaison officer to the machine operator concerned for counting and printing of
the election returns;

'3. The machine operator shall affix his signature and thumbmark thereon, and return the same
to the members of the BEI concerned for their signatures and thumbmarks;

'4. The said returns shall then be placed in corresponding envelopes for distribution;

'B. Local Ballots:

'1. Group the local ballots in piles of fifty (50);

'2. The Chairman shall read the votes while the poll clerk and the third member shall
simultaneously accomplish the election returns and the tally board respectively.

'If the voters shaded more ovals than the number of positions to be voted for, no vote
shall be counted in favor of any candidate.

'3. After all the local ballots shall have been manually counted, the same shall be given to the
machine operator concerned for counting by the scanning machine. The machine operator shall
then save the results in a diskette and print out the election returns for COMELEC reference.

'4. The BEI shall accomplish the certification portion of the election returns and announce the
results;

'5. Place the election returns in their respective envelopes and distribute them accordingly;

'6. Return all pertinent election documents and paraphernalia inside the ballot box.
'III. Consolidation of Results

'A. National Ballots

'1. The results of the counting for the national ballots for each municipality shall be consolidated
by using the ERs of the automated election system;

'2. After the consolidation, the Machine Operator shall print the certificate of canvass by
municipality and statement of votes by precinct;

'3. To consolidate the provincial results, the MO shall load all the diskettes used in the scanner
to the ERs;

'4. The MO shall print the provincial certificate of canvass and the SOV by municipality;

'5. In case there is system failure in the counting and/or consolidation of the results, the
POBC/MOBC shall revert to manual consolidation.

'B. Local Ballots

'1. - The consolidation of votes shall be done manually by the Provincial/Municipal Board of
Canvassers;

'2. The proclamation of winning candidates shall be based on the manual consolidation.

'RESOLVED, moreover, that the pertinent provisions of COMELEC Resolution Nos. 2971
and 3030 shall apply.

'Let the Executive Director implement this resolution."'

As aforestated, five (5) Special Boards were initially created under Atty. Tolentino, Jr. to
undertake the manual counting,[24] viz:
"a) Atty. Mamasapunod M. Aguam

Ms. Gloria Fernandez

Ms. Esperanza Nicolas

b) Director Ester L. Villaflor-Roxas

Ms. Celia Romero

Ms. Rebecca Macaraya

c) Atty. Zenaida S. Soriano

Ms. Jocelyn Guiang

Ma. Jocelyn Tan

d) Atty. Erlinda C. Echavia

Ms. Teresa A. Torralba

Ms. Ma. Carmen Llamas

e) Director Estrella P. de Mesa

Ms. Teresita Velasco

Ms. Nelly Jaena"

Later, the COMELEC utilized the services of 600 public school teachers from Pasay City to do
the manual counting. Five (5) elementary schools served as the venues of the counting, viz:[25]
"1. Gotamco Elementary School, Gotamco Street, Pasay City - for the municipalities of Indanan,
Pangutaran, Panglima Tahil, Maimbung;

"2. Zamora Elementary School, Zamora Street, Pasay City - for the municipalities of Jolo,
Talipao, Panglima Estino, and Tapul;

"3. Epifanio Elementary School, Tramo Street, Pasay City - for the municipalities of Parang,
Lugus, Panamao;

"4. Burgos Elementary School, Burgos Street, Pasay City - for the municipalities of Luuk and
Tongkil;

5. Palma Elementary School - for the municipalities of Siasi and Kalingalang Caluang."
From beginning to end, the manual counting was done with the watchers of the parties
concerned in attendance. Thereafter, the certificates of canvass were prepared and
signed by the City/Municipal Board of Canvassers composed of the Chairman, Vice-
Chairman, and Secretary. They were also signed by the parties' watchers.[26]

The correctness of the manual count cannot therefore be doubted. There was no need for an
expert to count the votes. The naked eye could see the checkmarks opposite the big ovals.
Indeed, nobody complained that the votes could not be read and counted. The COMELEC
representatives had no difficulty counting the votes. The 600 public school teachers of Pasay
City had no difficulty. The watchers of the parties had no difficulty. Petitioner did not object to the
rules on manual count on the ground that the ballots cannot be manually counted. Indeed, in his
original Petition, petitioner did not complain that the local ballots could not be counted by a
layman. Neither did the intervenor complain in his petition for intervention. The allegation that it
will take a trained eye to read the ballots is more imagined than real.

This is not all. As private respondent Tan alleged, the manual count could not have been
manipulated in his favor because the results show that most of his political opponents won.
Thus, "the official results show that the two congressional seats in Sulu were won by
Congressman Hussin Amin of the LAKAS-MNLF Wing for the 1st District and Congressman
Asani Tammang of the LAKAS-Loong Wing for the 2nd District. In the provincial level, of the
eight (8) seats for the Sangguniang Panlalawigan, two (2) were won by the camp of respondent
Tan; three (3) by the camp of petitioner Loong; two (2) by the MNLF; and one (1) by LAMMP. In
the mayoral race, seven (7) out of eighteen (18) victorious municipal mayors were identified with
respondent Tan; four (4) with petitioner Loong; three (3) with the MNLF; two (2) with LAMMP
and one (1) with REPORMA."[27] There is logic to private respondent Tan's contention that if the
manual count was tampered, his candidates would not have miserably lost.

Seventh. We further hold that petitioner cannot insist on automated counting under R.A. No.
8436 after the machines misread or rejected the local ballots in five (5) municipalities in Sulu.
Section 9 of R.A. No. 8436 provides:
"SEC. 9. Systems Breakdown in the Counting Center. In the event of a systems breakdown of
all assigned machines in the counting center, the Commission shall use any available machine
or any component thereof from another city/municipality upon approval of the Commission En
Banc or any of its divisions.

The transfer of such machines or any component thereof shall be undertaken in the presence of
representatives of political parties and citizens' arm of the Commission who shall be notified by
the election officer of such transfer.

There is a systems breakdown in the counting center when the machine fails to read the ballots
or fails to store/save results or fails to print the results after it has read the ballots; or when the
computer fails to consolidate election results/reports or fails to print election results/reports after
consolidation."
As the facts show, it was inutile for the COMELEC to use other machines to count the local
votes in Sulu. The errors in counting were due to the misprinting of ovals and the use of wrong
sequence codes in the local ballots. The errors were not machine-related. Needless to state, to
grant petitioner's prayer to continue the machine count of the local ballots will certainly result in
an erroneous count and subvert the will of the electorate.

Eighth. In enacting R.A. No. 8436, Congress obviously failed to provide a remedy where the
error in counting is not machine-related for human foresight is not all-seeing. We hold, however,
that the vacuum in the law cannot prevent the COMELEC from levitating above the problem.
Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power "to enforce
and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall." Undoubtedly, the text and intent of this provision is to have
COMELEC all the necessary and incidental powers for it to achieve the objective of holding free,
orderly, honest, peaceful, and credible elections. Congruent to this intent, this Court has not
been niggardly in defining the parameters of powers of COMELEC in the conduct of our
elections. Thus, we held in Sumulong v. COMELEC:[28]
"Politics is a practical matter, and political questions must be dealt with realistically - not from the
standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derived from actual experience in dealing
with political controversies, is in a peculiarly advantageous position to decide complex political
questions x x x. There are no ready made formulas for solving public problems. Time and
experience are necessary to evolve patterns that will serve the ends of good government. In the
matter of the administration of laws relative to the conduct of election, x x x we must not by any
excessive zeal take away from the Commission on Elections the initiative which by constitutional
and legal mandates properly belongs to it."
In the case at bar, the COMELEC order for a manual count was not only reasonable. It was the
only way to count the decisive local votes in the six (6) municipalities of Pata, Talipao, Siasi,
Tudanan, Tapul and Jolo. The bottom line is that by means of the manual count, the will of the
voters of Sulu was honestly determined. We cannot kick away the will of the people by giving a
literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when machine
count does not work. Counting is part and parcel of the conduct of an election which is under the
control and supervision of the COMELEC. It ought to be self-evident that the Constitution did not
envision a COMELEC that cannot count the result of an election.

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

There is another reason why a special election cannot be ordered by this Court. To hold a
special election only for the position of Governor will be discriminatory and will violate the right
of private respondent to equal protection of the law. The records show that all elected officials in
Sulu have been proclaimed and are now discharging their powers and duties. Thus, two (2)
congressmen, a vice-governor, eight (8) members of the Sangguniang Panlalawigan and
eighteen (18) mayors, numerous vice-mayors and municipal councilors are now serving in their
official capacities. These officials were proclaimed on the basis of the same manually counted
votes of Sulu. If manual counting is illegal, their assumption of office cannot also be
countenanced. Private respondent's election cannot be singled out as invalid for alikes
cannot be treated unalikes.

A final word. Our decision merely reinforces our collective efforts to endow COMELEC with
enough power to hold free, honest, orderly and credible elections. A quick flashback of its
history is necessary lest our efforts be lost in the labyrinth of time.

The COMELEC was organized under Commonwealth Act No. 607 enacted on August 22,1940.
The power to enforce our election laws was originally vested in the President and exercised
through the Department of Interior. According to Dean Sinco,[29] the view ultimately emerged
that an independent body could better protect the right of suffrage of our people. Hence, the
enforcement of our election laws, while an executive power, was transferred to the COMELEC.

From a statutory creation, the COMELEC was transformed to a constitutional body by virtue of
the 1940 amendments to the 1935 Constitution which took effect on December 2, 1940.
COMELEC was generously granted the power to "have exclusive charge of the enforcement
and administration of all laws relative to the conduct of elections x x x." [30]

Then came the 1973 Constitution. It further broadened the powers of COMELEC by making it
the sole Judge of all election contests relating to the election, returns and qualifications of
members of the national legislature and elective provincial and city officials.[31] In fine, the
COMELEC was given judicial power aside from its traditional administrative and executive
functions.

The 1987 Constitution quickened this trend of strengthening the COMELEC. Today, COMLEC
enforces and administers all laws and regulations relative to the conduct of elections,
plebiscites, initiatives, referenda and recalls. Election contests involving regional, provincial and
city elective officials are under its exclusive original jurisdiction. All contests involving elective
municipal and barangay officials are under its appellate jurisdiction.[32]

Our decisions have been in cadence with the movement towards empowering the COMELEC in
order that it can more effectively perform its duty of safeguarding the sanctity of our elections. In
Cauton vs. COMELEC,[33] we laid down this liberal approach, viz:
xxx

'The purpose of the Revised Election Code is to protect the integrity of elections and to suppress
all evils that may violate its purity and defeat the will of the voters. The purity of the elections is
one of the most fundamental requisites of popular government. The Commission on Elections,
by constitutional mandate, must do everything in its power to secure a fair and honest canvass
of the votes cast in the elections. In the performance of its duties, the Commission must be
given a considerable latitude in adopting means and methods that will insure the
accomplishment of the great objective for which it was created -- to promote free, orderly, and
honest elections. The choice of means taken by the Commission on Elections, unless they
are clearly illegal or constitute grave abuse of discretion, should not be interfered with."
In Pacis vs. COMELEC,[34] we reiterated the guiding principle that "clean elections control the
appropriateness of the remedy." The dissent, for all its depth, is out of step with this movement.
It condemns the COMELEC for exercising its discretion to resort to manual count when this was
its only viable alternative. It would set aside the results of the manual count even when the
results are free from fraud and irregularity. Worse, it would set aside the judgment of the people
electing the private respondent as Governor. Upholding the sovereignty of the people is
what democracy is all about. When the sovereignty of the people expressed thru the
ballot is at stake, it is not enough for this Court to make a statement but it should do
everything to have that sovereignty obeyed by all. Well done is always better than well
said.

IN VIEW WHEREOF, the petition of Tupay Loong and the petition in intervention of Yusop Jikiri
are dismissed, there being no showing that public respondent gravely abused its discretion in
issuing Minute Resolution Nos. 98-1748, 98-1750, 98-1796 and 98-1798. Our status quo order
of June 23, 1998 is lifted. No costs.

SO ORDERED.

COMPOSITION AND QUALIFICATIONS

 RENATO L. CAYETANO VS. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA,
COMMISSION ON APPOINTMENTS, AND HON. GUILLERMO CARAGUE, IN HIS CAPACITY
AS SECRETARY OF BUDGET AND MANAGEMENT (G.R. No. 100113, September 03, 1991)

DECISION

PARAS, J.:

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal
issues are involved, the Court's decision in this case would indubitably have a profound effect
on the political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

"There shall be a Commission on Elections composed of a Chairman and six Commissioners
who shall be natural-born citizens of the Philippines and, at the time of their appointment, at
least thirty-five years of age, holders of a college degree, and must not have been candidates
for any elective position in the immediately preceding elections. However, a majority thereof,
including the Chairman, shall be members of the Philippine Bar who have been engaged in the
practice of law for at least ten years." (Italics supplied)
The aforequoted provision is patterned after Section 1(1), Article XII-C of the 1973 Constitution
which similarly provides:
"There shall be an independent Commission on Elections composed of a Chairman and eight
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age and holders of a college degree. However, a
majority thereof, including the Chairman, shall be members of the Philippine Bar who have been
engaged in the practice of law for at least ten years." (Italics supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law
as a legal qualification to an appointive office.

Black defines "practice of law" as:

"The rendition of services requiring the knowledge and the application of legal principles and
technique to serve the interest of another with his consent. It is not limited to appearing in court,
or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings,
and other papers incident to actions and special proceedings, conveyancing, the preparation of
legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice
to clients and all actions taken for them in matters connected with the law. An attorney engages
in the practice of law by maintaining an office where he is held out to be an attorney, using a
letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with
opposing counsel about pending litigation, and fixing and collecting fees for services rendered
by his associate." (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust
Co. v. Dworken, 129 Ohio St. 23, 193 N. E. 650) A person is also considered to be in the
practice of law when he:
"x x x for valuable consideration engages in the business of advising person, firms, associations
or corporations as to their rights under the law, or appears in a representative capacity as an
advocate in proceedings pending or prospective, before any court, commissioner, referee,
board, body, committee, or commission constituted by law or authorized to settle controversies
and there, in such representative capacity performs any act or acts for the purpose of obtaining
or defending the rights of their clients under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising clients as to their rights under the
law, or while so engaged performs any act or acts either in court or outside of court for that
purpose, is engaged in the practice of law." (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102
S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v. Agrava, (105 Phil. 173, 176-177)
stated:

"The practice of law is not limited to the conduct of cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to actions and special proceedings, the
management of such actions and proceedings on behalf of clients before judges and courts, and
in addition, conveying. In general, all advice to clients, and all action taken for them in matters
connected with the law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a mortgage,
enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting
proceedings in attachment, and in matters of estate and guardianship have been held to
constitute law practice, as do the preparation and drafting of legal instruments, where the work
done involves the determination by the trained legal mind of the legal effect of facts and
conditions." (5 Am. Jr. p. 262, 263). (Italics supplied)

"Practice of law under modern conditions consists in no small part of work performed outside of
any court and having no immediate relation to proceedings in court. It embraces conveyancing,
the giving of legal advice on a large variety of subjects, and the preparation and execution of
legal instruments covering an extensive field of business and trust relations and other
affairs. Although these transactions may have no direct connection with court proceedings, they
are always subject to become involved in litigation. They require in many aspects a high degree
of legal skill, a wide experience with men and affairs, and great capacity for adaptation to
difficult and complex situations. These customary functions of an attorney or counselor at law
bear an intimate relation to the administration of justice by the courts. No valid distinction, so far
as concerns the question set forth in the order, can be drawn between that part of the work of
the lawyer which involves appearance in court and that part which involves advice and drafting
of instruments in his office. It is of importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of adequate learning and skill, of
sound moral character, and acting at all times under the heavy trust obligations to clients which
rests upon all attorneys." (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.], p. 665-
666, citing In re Opinion of the Justices [Mass.], 194 N. E. 313, quoted in Rhode Is. Bar Assoc.
v. Automobile Service Assoc. [R.I.] 179 A. 139, 144]). (Italics ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers
(1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy,
counseling and public service.
"One may be a practicing attorney in following any line of employment in the profession. If what
he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active
practice of their profession, and he follows some one or more lines of employment such as this
he is a practicing attorney at law within the meaning of the statute.'" (Barr v. Cardell, 155 NW
312)
Practice of law means any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. "To engage in the practice of law is to perform
those acts which are characteristics of the profession. Generally, to practice law is to give
notice or render any kind of service, which device or service requires the use in any degree of
legal knowledge or skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal
interpretation of the term "practice of law."
"MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do
during our review of the provisions on the Commission on Audit. May I be allowed to make a
very brief statement?

"THE PRESIDING OFFICER (Mr. Jamir). The Commissioner will please proceed.

"MR. FOZ. This has to do with the qualifications of the members of the Commission on
Audit. Among others, the qualifications provided for by Section 1 is that 'They must be Members
of the Philippine Bar’ —- I am quoting from the provision — 'who have been engaged in the
practice of law for at least ten years.’"

"To avoid any misunderstanding which would result in excluding members of the Bar who are
now employed in the COA or Commission on Audit, we would like to make the clarification that
this provision on qualifications regarding members of the Bar does not necessarily refer or
involve actual practice of law outside the COA. We have to interpret this to mean that as long
as the lawyers who are employed in the COA are using their legal knowledge or legal talent in
their respective work within COA, then they are qualified to be considered for appointment as
members or commissioners, even chairman, of the Commission on Audit.

"This has been discussed by the Committee on Constitutional Commissions and Agencies and
we deem it important to take it up on the floor so that this interpretation may be made available
whenever this provision on the qualifications as regards members of the Philippine Bar
engaging in the practice of law for at least ten years is taken up.

"MR. OPLE. Will Commissioner Foz yield to just one question.

"MR. FOZ. Yes, Mr. Presiding Officer.

"MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the
requirement of a law practice that is set forth in the Article on the Commission on Audit?

"MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will
necessarily involve legal work: it will involve legal work. And, therefore, lawyers who are
employed in COA now would have the necessary qualifications in accordance with the provision
on qualifications under our provisions on the Commission on Audit. And, therefore, the answer
is yes.

"MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice
of law.

"MR. FOZ. Yes, Mr. Presiding Officer.

"Mr. OPLE, Thank you."

x x x (Italics supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman
and two Commissioners of the Commission on Audit (COA) should either be certified public
accountants with not less than ten years of auditing practice, or members of the Philippine Bar
who have been engaged in the practice of law for at least ten years. (Italics supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with
the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a
fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law
Careers [VGM Career Horizons: Illinois), 1986], p. 15]).

At this point, it might be helpful to define private practice. The term, as commonly understood,
means "an individual or organization engaged in the business of delivering legal services."
(Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are
called "firms." The firm is usually a partnership and members of the firm are the partners. Some
firms may be organized as professional corporations and the members called shareholders. In
either case, the members of the firm are the experienced attorneys. In most firms, there are
younger or more inexperienced salaried attorneys called "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially
tautologous, unhelpfully defining the practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of
law is defined as "the performance of any acts . . . in or out of court, commonly understood to be
the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d
863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626
[1941]). Because lawyers perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too global to be workable. (Wolfram,
op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar
role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little
time in courtrooms, and a large percentage spend their entire practice without litigating a
case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating
lawyer's role colors much of both the public image and the self-perception of the legal
profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not
reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once
articulated on the importance of a lawyer as a business counselor in this wise: "Even today,
there are still uninformed laymen whose concept of an attorney is one who principally tries
cases before the courts. The members of the bench and bar and the informed laymen such as
businessmen, know that in most developed societies today, substantially more legal work is
transacted in law offices than in the courtrooms. General practitioners of law who do both
litigation and non-litigation work also know that in most cases they find themselves spending
more time doing what [is] loosely describe[d] as business counseling than in trying cases. The
business lawyer has been described as the planner, the diagnostician and the trial lawyer, the
surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided
where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).

In the course of a working day the average general practitioner will engage in a number of legal
tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions,
clients, and other interested parties. Even the increasing numbers of lawyers in specialized
practice will usually perform at least some legal services outside their specialty. And even
within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such
as advice-giving to an importantly different one such as representing a client before an
administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively
rare types — a litigator who specializes in this work to the exclusion of much else. Instead, the
work will require the lawyer to have mastered the full range of traditional lawyer skills of client
counseling, advice-giving, document drafting, and negotiation. And increasingly lawyers find
that the new skills of evaluation and mediation are both effective for many clients and a source
of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in
very important ways, at least theoretically, so as to remove from it some of the salient features
of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In
some lawyers' work the constraints are imposed both by the nature of the client and by the way
in which the lawyer is organized into a social unit to perform that work. The most common of
these roles are those of corporate practice and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, hereinbelow quoted are emerging
trends in corporate law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in corporate
law practice. Lawyers and other professional groups, in particular those members participating
in various legal-policy decisional contexts, are finding that understanding the major emerging
trends in corporation law is indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate

understanding of the nature and implications of the corporate law research function
accompanied by an accelerating rate of information accumulation. The recognition of the need
for such improved corporate legal policy formulation, particularly "model-making" and
"contingency planning," has impressed upon us the inadequacy of traditional procedures in
many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of
significant conditional factors, the appraisal of major trends, the necessity of estimating the
consequences of given courses of action, and the need for fast decision and response in
situations of acute danger have prompted the use of sophisticated concepts of information flow
theory, operational analysis, automatic data processing, and electronic computing
equipment. Understandably, an improved decisional structure must stress the predictive
component of the policy-making process, wherein a "model", of the decisional context or a
segment thereof is developed to test projected alternative courses of action in terms of futuristic
effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the
trends of the law, the subject of corporate finance law has received relatively little organized and
formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a
cross-disciplinary approach to legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the
law can be improved through an early introduction to multi-variable decisional contexts and the
various approaches for handling such problems. Lawyers, particularly with either a master's or
doctorate degree in business administration or management, functioning at the legal-policy level
of decision-making now have some appreciation for the concepts and analytical techniques of
other professions which are currently engaged in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of
an astute attorney because of the complex legal implications that arise from each and every
necessary step in securing and maintaining the business issue raised. (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).

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

campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the
tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that
a corporate lawyer does. For one, the number of attorneys employed by a single corporation
will vary with the size and type of the corporation. Many smaller and some large corporations
farm out all their legal problems to private law firms. Many others have in-house counsel only
for certain matters. Other corporations have a staff large enough to handle most legal problems
in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a
corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal
research, tax laws research, acting out as corporate secretary (in board meetings), appearances
in both courts and other adjudicatory agencies (including the Securities and Exchange
Commission), and in other capacities which require an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the
business of the corporation he is representing. These include such matters as determining
policy and becoming involved in management. (Italics supplied)

In a big company, for example, one may have a feeling of being isolated from the action, or not
understanding how one's work actually fits into the work of the organization. This can be
frustrating to someone who needs to see the results of his work first hand. In short, a corporate
lawyer is sometimes offered this fortune to be more closely involved in the running of the
business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational

corporation (MNC). Some large MNCs provide one of the few opportunities available to
corporate lawyers to enter the international law field. After all, international law is practiced in a
relatively small number of companies and law firms. Because working in a foreign country is
perceived by many as glamorous, this is an area coveted by corporate lawyers. In most cases,
however, the overseas jobs go to experienced attorneys while the younger attorneys do their
"international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25, 1990,
p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the
lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to
spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is
one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4)

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No
longer are we talking of the traditional law teaching method of confining the subject study to the
Corporation Code and the Securities Code but an incursion as well into the intertwining modern
management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1)
acquisition of insights into current advances which are of particular significance to the corporate
counsel; (2) an introduction to usable disciplinary skills applicable to a corporate counsel's
management responsibilities; and (3) a devotion to the organization and management of the
legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking
them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for
the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that
matter, the corporate lawyer reviews the globalization process, including the resulting strategic
repositioning that the firms he provides counsel for are required to make, and the need to think
about a corporation's strategy at multiple levels. The salience of the nation-state is being
reduced as firms deal both with global multinational entities and simultaneously with sub-
national governmental units. Firms increasingly collaborate not only with public entities but with
each other — often with those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly
changing. The modern corporate lawyer has gained a new role as a stakeholder — in some
cases participating in the organization and operations of governance through participation on
boards and other decision-making roles. Often these new patterns develop alongside existing
legal institutions and laws are perceived as barriers. These trends are complicated as
corporations organize for global operations. (Italics supplied)

The practicing lawyer of today is familiar as well with governmental policies toward the
promotion and management of technology. New collaborative arrangements for promoting
specific technologies or competitiveness more generally require approaches from industry that
differ from older, more adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other countries. In Europe,
Esprit, Eureka and Race are examples of collaborative efforts between governmental and
business Japan's MITI is world famous. (Italics supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprises a
distinct group within the managerial structure of all kinds of organizations. Effectiveness of both
long-term and temporary groups within organizations has been found to be related to
indentifiable factors in the group-context interaction such as the groups actively revising their
knowledge of the environment, coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better predictors of team
performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the
managerial mettle of corporations are challenged. Current research is seeking ways both to
anticipate effective managerial procedures and to understand relationships of financial liability
and insurance considerations. (Underscoring supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool for new
managerial thinking regarding both planning and pressing immediate problems. An
understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to
simulate all sorts of systematic problems — physical, economic, managerial, social, and
psychological. New programming techniques now make the systems dynamics principles more
accessible to managers — including corporate counsels. (Italics supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity
and uncertainty. In the context of a law department, it can be used to appraise the settlement
value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in
managing a portfolio of cases. (Italics supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by
parties and mediators in all kinds of negotiations. All integrated set of such tools provide
coherent and effective negotiation support, including hands-on on instruction in these
techniques. A simulation case of an international joint venture may be used to illustrate the
point.

[Be this as it may,] the organization and management of the legal function, concern three
pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of
the general counsel's responsibilities. They differ from those of remedial law. Preventive
lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for
such legal entities at that time when transactional or similar facts are being considered and
made.
Managerial Jurisprudence. This is the framework within which are undertaken those activities of
the firm to which legal consequences attach. It needs to be directly supportive of this nation's
evolving economic and organizational fabric as firms change to stay competitive in a global,
interdependent environment. The practice and theory of "law" is not adequate today to facilitate
the relationships needed in trying to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has
emerged in the last decade as one of the most vibrant subsets of the legal profession. The
corporate counsel bear responsibility for key aspects of the firm's strategic issues, including
structuring its global operations, managing improved relationships with an increasingly
diversified body of employees, managing expanded liability exposure, creating new and varied
interactions with public decision-makers, coping internally with more complex make or by
decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make
one a good general corporate counsel nor to give him a full sense of how the legal system
shapes corporate activities. And even if the corporate lawyer's aim is not to understand all of
the law's effects on corporate activities, he must, at the very least, also gain a working
knowledge of the management issues if only to be able to grasp not only the basic legal
"constitution" or make-up of the modern corporation. (Business Star, "The Corporate Counsel,"
April 10, 1991, p. 4)..

The challenge for lawyers (both of the bar and the bench) is to have more than a passing
knowledge of financial law affecting each aspect of their work. Yet, many would admit to
ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of
professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p.
4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position
of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on
Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod
does not possess the required qualification of having been engaged in the practice of law for at
least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as

Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day,
he assumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's

nomination, petitioner as a citizen and taxpayer, filed the instant petition for Certiorari and
Prohibition praying that said confirmation and the consequent appointment of Monsod as
Chairman of the Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations
of 1960 with a grade of 86.55%. He has been a dues paying member of the Integrated Bar of
the Philippines since its inception in 1972-73. He has also been paying his professional license
fees as a lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod
worked in the law office of his father. During his stint in the World Bank Group (1963-1970),
Monsod worked as an operations officer for about two years in Costa Rica and Panama, which
involved getting acquainted with the laws of member-countries, negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in
1970, he worked with the Meralco Group, served as chief executive officer of an investment
bank and subsequently of a business conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or chief executive officer. As former
Secretary-General (1986) and National Chairman (1987) of NAMFREL, Monsod's, work involved
being knowledgeable in election law. He appeared for NAMFREL in its accredition hearings
before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former
Co-Chairman of the Bishops Businessmen's Conference for Human Development, has worked
with the under privileged sectors, such as the farmer and urban poor groups, in initiating,
lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban
land reform bill. Monsod also made use of his legal knowledge as a member of the Davide
Commission, a guasi-judicial body, which conducted numerous hearings (1990) and as a
member of the Constitutional Commission (1986-1987), and Chairman of its Committee on
Accountability of Public Officers, for which he was cited by the President of the Commission,
Justice Cecilia-Munoz-Palma for "innumerable amendments to reconcile government functions
with individual freedoms and public accountability and the party-list system for the House of
Representative." (pp. 128-129 Rollo) (Italics supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately
constituted to meet the various contingencies that arise during a negotiation. Besides top
officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the
finance manager, and an operations officer (such as an official involved in negotiating the
contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating
Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the
Philippines, Manila, 1982, p. 11). (Underscoring supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as
the loan transaction is concerned. Thus, the meat of any Loan Agreement can be
compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's
representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program. For aside
from performing the tasks of legislative drafting and legal advising, they score national
development policies as key factors in maintaining their countries' sovereignty. (Condensed
from the work paper, entitled "Wanted: Development Lawyers for Developing Nations,"
submitted by L. Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development of Nations at the
Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center
on August 26-31, 1973). (Italics supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation policies,
demand expertise in the law of contracts, in legislation and agreement drafting and in
renegotiation. Necessarily, a sovereign lawyer may work with an international business
specialist or an economist in the formulation of a model loan agreement. Debt restructuring
contract agreements contain such a mixture of technical language that they should be carefully
drafted and signed only with the advise of competent counsel in conjunction with the guidance
of adequate technical support personnel. (See International Law Aspects of the Philippine
External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p.
321). (Italics supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and
conditions which determines the contractual remedies for a failure to perform one or more
elements of the contract. A good agreement must not only define the responsibilities of both
parties, but must also state the recourse open to either party when the other fails to discharge
an obligation. For a compleat debt restructuring represents a devotion to that principle which in
the ultimate analysis is sine qua non for foreign loan agreements — an adherence to the rule of
law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver
Wendell Holmes, Jr. once said; 'They carry no banners, they beat no drums; but where they are,
men learn that bustle and bush are not the equal of quiet genius and serene mastery.’ (See
Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the
Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term "practice of law", particularly the
modern concept of law practice, and taking into consideration the liberal construction intended
by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist,
a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a
lawyer-legislator of both the rich and the poor - verily more than satisfy the constitutional
requirement - that he has been engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court
said:
"Appointment is an essentially discretionary power and must be performed by the officer in
which it is vested according to his best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the appointment cannot be faulted
on the ground that there are others better qualified who should have been preferred. This is a
political question involving considerations of wisdom which only the appointing authority can
decide." (italics supplied)
No less emphatic was the Court in the case of Central Bank v. Civil Service Commission, 171
SCRA 744) where it stated:
"It is well-settled that when the appointee is qualified, as in this case, and all the other legal
requirements are satisfied, the Commission has no alternative but to attest to the appointment in
accordance with the Civil Service Law. The Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position. It also
has no authority to direct the appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing authority. An appointment is
essentially within the discretionary power of whomsoever it is vested, subject to the only
condition that the appointee should possess the qualifications required by law." (Italics supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4)
stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a
commission (in the Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent appointment; and (4) acceptance
e.g., oath-taking, posting of bond, etc.... (Lacson v. Romero, No. L-3081, October 14, 1949;
Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod
as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article
IX of the Constitution which provides:
"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, three Members shall hold office for seven years, two Members for five years,
and the last Members 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."
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the
practice of law is the traditional or stereotyped notion of law practice, as distinguished from the
modern concept of the practice of law, which modern connotation is exactly what was intended
by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would
require generally a habitual law practice, perhaps practised two or three times a week and
would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far
from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written
opinion, I made use of a definition of law practice which really means nothing because the
definition says that law practice "... is what people ordinarily mean by the practice of law." True I
cited the definition but only by way of sarcasm as evident from my statement that the definition
of law practice by "traditional areas of law practice is essentially tautologous" or defining a
phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most
individuals, in making use of the law, or in advising others on what the law means, are actually
practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod
is a lawyer, a member of the Philippine Bar, who has been practicing law for over ten
years. This is different from the acts of persons practicing law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the
Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly
doubt. For one thing, how can an action or petition be brought against the President? And even
assuming that he is indeed disqualified, how can the action be entertained since he is the
incumbent President?

We now proceed:

The Commission on the basis of evidence submitted during the public hearings on Monsod's
confirmation, implicitly determined that he possessed the necessary qualifications as required
by law. The judgment rendered by the Commission in the exercise of such an acknowledged
power is beyond judicial interference except only upon a clear showing of a grave abuse of
discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only
where such grave abuse of discretion is clearly shown shall the Court interfere with the
Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's
corrective power, since no abuse, much less a grave abuse of discretion, that would amount to
lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been
clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the
Supreme Court reverse the Commission, and thus in effect confirm the appointment?
Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission has
confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress)
decides to confirm a Presidential nominee, it would be incredible that the U.S.
Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

"We must interpret not by the letter that killeth, but by the spirit that giveth life."
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked
Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition
that —
"No blade shall touch his skin; No blood shall flow from his veins."
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod
burning white-hot two or three inches away from in front of Samson's eyes. This blinded the
man. Upon hearing of what had happened to her beloved, Delilah was beside herself with
anger, and fuming with righteous fury, accused the procurator of reneging on his word. The
procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?"
The procurator was clearly relying on the letter, not the spirit of the agreement.

IN VIEW OF THE FOREGOING, this petition is hereby DISMISSED.

SO ORDERED.

APPEAL

LUCITA Q. GARCES VS. THE HONORABLE COURT OF APPEALS, SALVADOR

EMPEYNADO AND CLAUDIO CONCEPCION (G.R. No. 114795, July 17, 1996)

RESOLUTION

FRANCISCO, J.:

Questioned in this petition for review is the decision[1] of the Court of Appeals[2] (CA), as well as
its resolution, which affirmed the decision of the Regional Trial Court[3] (RTC) of Zamboanga del
Norte in dismissing a petition for mandamus against a Provincial Election Supervisor and an
incumbent Election Registrar.

The undisputed facts are as follows:

Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del Norte on
July 27, 1986. She was to replace respondent Election Registrar Claudio Concepcion, who, in
turn, was transferred to Liloy, Zamboanga del Norte.[4] Correspondingly approved by the Civil
Service Commission,[5] both appointments were to take effect upon assumption of office.
Concepcion, however, refused to transfer post as he did not request for it. [6] Garces, on the
other hand, was directed by the Office of Assistant Director for Operations to assume the
Gutalac post.[7] But she was not able to do so because of a Memorandum issued by respondent
Provincial Election Supervisor Salvador Empeynado that prohibited her from assuming office in
Gutalac as the same is not vacant.[8]

On February 24, 1987, Garces was directed by the same Office of Assistant Director to defer
her assumption of the Gutalac post. On April 15, 1987, she received a letter from the Acting
Manager, Finance Service Department, with an enclosed check to cover for the expenses on
construction of polling booths. It was addressed "Mrs. Lucita Garces E.R. Gutalac, Zamboanga
del Norte" which Garces interpreted to mean as superseding the deferment order. [9] Meanwhile,
since respondent Concepcion continued occupying the Gutalac office, the COMELEC en banc
cancelled his appointment to Liloy.[10]

On February 26, 1988, Garces filed before the RTC a petition for mandamus with preliminary
prohibitory and mandatory injunction and damages against Empeynado[11] and Concepcion,
among others. Meantime, the COMELEC en banc through a Resolution dated June 3, 1988,
resolved to recognize respondent Concepcion as the Election Registrar of Gutalac, [12] and
ordered that the appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled.[13]
In view thereof, respondent Empeynado moved to dismiss the petition for mandamus alleging
that the same was rendered moot and academic by the said COMELEC Resolution, and that the
case is cognizable only by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The
RTC, thereafter, dismissed the petition for mandamus on two grounds, viz., (1) that quo
warranto is the proper remedy,[14] and (2) that the "cases" or "matters" referred under the
constitution pertain only to those involving the conduct of elections. On appeal, respondent CA
affirmed the RTC’s dismissal of the case. Hence, this petition.

The issues raised are purely legal. First, is petitioner’s action for mandamus proper? And,
second, is this case cognizable by the RTC or by the Supreme Court?

On the first issue, Garces claims that she has a clear legal right to the Gutalac post which was
deemed vacated at the time of her appointment and qualification. Garces insists that the
vacancy was created by Section 2, Article III of the Provisional Constitution.[15] On the contrary,
Concepcion posits that he did not vacate his Gutalac post as he did not accept the transfer to
Liloy.
Article III Section 2 of the Provisional Constitution provides:

"All elective and appointive officials and employees under the 1973 Constitution shall continue in
office until otherwise provided by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such is made within a period of one year
from February 25, 1986." (Italics supplied)
The above organic provision did not require any cause for removal of an appointive official
under the 1973 Constitution.[16] The transition period from the old to the new Constitution
envisioned an "automatic" vacancy;[17] hence the government is not hard put to prove anything
plainly and simply because the Constitution allows it.[18] Mere appointment and qualification of
the successor removes an incumbent from his post. Nevertheless, the government in an act of
auto-limitation and to prevent indiscriminate dismissal of government personnel issued on May
28, 1986, Executive Order (E.O.) No. 17. This executive order, which applies in this case as it
was passed prior to the issuance of Concepcion’s transfer order, enumerates five grounds for
separation or replacement of elective and appointive officials authorized under Article III,
Section 2 of the Provisional Constitution, to wit:
"1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;

2. Existence of the probable cause for violation of the Anti-Graft and Corrupt Practices Act as
determined by the Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of public office for partisan political purposes;

5. Any other analogous ground showing that the incumbent is unfit to remain in the service or
his separation/replacement is in the interest of the service."
Not one of these grounds was alleged to exist, much less proven by petitioner when respondent
Concepcion was transferred from Gutalac to Liloy. More, Concepcion was transferred without
his consent. A transfer requires a prior appointment.[19] If the transfer was made without the
consent of the official concerned, it is tantamount to removal without valid cause[20] contrary to
the fundamental guarantee on non-removal except for cause.[21] Concepcion’s transfer thus
becomes legally infirm and without effect for he was not validly terminated. His appointment to
the Liloy post, in fact, was incomplete because he did not accept it. Acceptance, it must be
emphasized, is indispensable to complete an appointment. [22] Corollarily, Concepcion’s post in
Gutalac never became vacant. It is a basic precept in the law of public officers that "no person,
no matter how qualified and eligible he is for a certain position may be appointed to an office
which is not vacant.[23] There can be no appointment to a non-vacant position. The incumbent
must first be legally removed, or his appointment validly terminated before one could be validly
installed to succeed him. Further, Garces’ appointment was ordered to be deferred by the
COMELEC. The deferment order, we note, was not unequivocably lifted. Worse, her
appointment to Gutalac was even cancelled by the COMELEC en banc.

These factors negate Garces’ claim for a well-defined, clear, certain legal right to the Gutalac
post. On the contrary, her right to the said office is manifestly doubtful and highly questionable.
As correctly ruled by respondent court, mandamus, which petitioner filed below, will not lie as
this remedy applies only where petitioner’s right is founded clearly in law and not when it is
doubtful.[24] It will not issue to give him something to which he is not clearly and conclusively
entitled.[25] Considering that Concepcion continuously occupies the disputed position and
exercises the corresponding functions therefore, the proper remedy should have been quo
warranto and not mandamus.[26] Quo warranto tests the title to one’s office claimed by another
and has as its object the ouster of the holder from its enjoyment, while mandamus avails to
enforce clear legal duties and not to try disputed titles.[27]

Garces’ heavy reliance with the 1964 Tulawie[28] case is misplaced for material and different
factual considerations. Unlike in this case, the disputed office of "Assistant Provincial
Agriculturist" in the case of Tulawie is clearly vacant and petitioner Tulawie’s appointment was
confirmed by the higher authorities making his claim to the disputed position clear and certain.
Tulawie’s petition for mandamus, moreover, was against the Provincial Agriculturist who never
claimed title to the contested office. In this case, there was no vacancy in the Gutalac post and
petitioner’s appointment to which she could base her claim was revoked making her claim
uncertain.

Coming now to the second issue.

The jurisdiction of the RTC was challenged by respondent Empeynado[29] contending that this
is a "case" or "matter" cognizable by the COMELEC under Sec. 7 Art. IX-A of the 1987
Constitution. The COMELEC resolution cancelling the appointment of Garces as Election
Registrar of Gutalac, he argues, should be raised only on certiorari before the Supreme Court
and not before the RTC, else the latter court becomes a reviewer of an en banc COMELEC
resolution contrary to Sec. 7, Art. IX-A.

The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:
"Each commission shall decide by a majority vote of all its members any case or matter brought
before it within sixty days from the date of its submission for decision or resolution. A case or
matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief,
or memorandum required by the rules of the commission or by the commission itself. Unless
otherwise provided by this constitution or by law, any decision, order, or ruling of each
commission may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof."
This provision is inapplicable as there was no case or matter filed before the COMELEC. On the
contrary, it was the COMELEC’s resolution that triggered this Controversy. The "case" or
"matter" referred to by the constitution must be something within the jurisdiction of the
COMELEC, i.e., it must pertain to an election dispute. The settled rule is that "decision, rulings,
order" of the COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7
Art. IX-A are those that relate to the COMELEC’s exercise of its adjudicatory or quasi-judicial
powers[30] involving "elective regional, provincial and city officials."[31] In this case, what is being
assailed is the COMELEC’s choice of an appointee to occupy the Gutalac Post which is an
administrative duty done for the operational set-up of an agency.[32] The controversy involves an
appointive, not an elective, official. Hardly can this matter call for the certiorari jurisdiction of the
Supreme Court. To rule otherwise would surely burden the Court with trivial administrative
questions that are best ventilated before the RTC, a court which the law vests with the power to
exercise original jurisdiction over "all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial functions."[33]

WHEREFORE, premises considered, the petition for review is hereby DENIED without prejudice
to the filing of the proper action with the appropriate body.

SO ORDERED.

COMMISSION ON AUDIT (COA)

RODOLFO E. AGUINALDO VS. SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES

(G.R. No. 124471, November 28, 1996)

DECISION

MENDOZA, J.:

This is a petition for certiorari to annul the order, dated September 18, 1995, of the
Sandiganbayan, denying petitioner’s motion to quash the informations filed against him in two
criminal cases (Nos. 20948 and 20949), as well as the resolution, dated April 12, 1996, ordering
his suspension for ninety (90) days as Provincial Governor of Cagayan.

The background of this case is as follows. Petitioner is the Provincial Governor of Cagayan. At
the time material to this decision he was serving his first term as Governor of that province.

In 1990, the Commission on Audit (COA) found that claims of petitioner for intelligence
operations in 1988 and 1989 in the amounts of P400,000 and P350,000, respectively, had been
charged to the 20% Development Fund and that some of the claims were covered by
disbursement vouchers with only reimbursement receipts to support them, most of which were
signed by only one person, while other claims had no supporting papers at all. For this reason
the audit team submitted a report (SAO Report No. 90-25), recommending the following
measures to be taken:
Require the submission of the required documents covering claims for intelligence activities,
before making payment. Require claimant to complete the documentation on payments made
with incomplete papers otherwise, refund of the same should be made. Stop provincial officials
from using the 20% Development Fund for purposes other than for development projects under
MLG Circular No. 83-4.
On February 3, 1992, the COA Director, Feliciano B. Clemencio, filed with the Office of the
Ombudsman a complaint, alleging "anomalies consisting of irregular/illegal disbursements of
government funds." Named respondents in the complaint were petitioner and the members of
the Provincial Board of Cagayan, the Assistant Provincial Treasurer and the Accountant.

In a resolution dated May 31, 1994 the Ombudsman found that, in all, petitioner had distributed
the amount of P750,000 to the military, police and civilian informers to fight insurgency.
[Petitioner] cannot, however submit receipts or documents evidencing disbursements for
intelligence activities which are required under paragraph B-4 of COA Circular No. 77-17D dated
April 15, 1977. Under these circumstances, being an accountable public officer and who could
not account for the insurgency funds when audited, there is prima-facie evidence that he has put
such missing funds to personal use and therefore liable for malversation of public funds under
Article 217 of the Revised Penal Code. Likewise there is also prima-facie evidence to charge
respondent Governor Aguinaldo with violation of Section 3 , paragraph (3) of R.A. 3019.
Two cases of Malversation of Public Funds under Art. 217 of the Revised Penal Code were
accordingly filed against petitioner on August 16, 1994.
In Crim. Case No. 20948, the information states:

That in or about the year 1988 in the Municipality of Tuguegarao, Province of Cagayan,
Philippines, and within the jurisdiction of this Honorable Court, the above named accused,
Rodolfo E. Aguinaldo, then holding the position of Provincial Governor of Cagayan Province,
hence a public officer who, by reason of the duties of his office, is accountable for public funds
or property, taking advantage of his official position, did then and there wilfully, unlawfully and
feloniously take or misappropriate for his personal use public funds in his custody in the total
amount of Four Hundred Thousand Pesos (P400,000.00), Philippine Currency, which amount
he had earlier withdrawn from the provincial treasury of Cagayan to be used in the province’s
intelligence activities, to the damage and prejudice of the provincial government of Cagayan.

In Crim. Case No. 20949, the information alleges:

That in or about the year 1989 in the Municipality of Tuguegarao, Province of Cagayan,
Philippines, and within the jurisdiction of this Honorable Court, the above named accused,
Rodolfo E Aguinaldo, then holding the position of Provincial Governor of Cagayan province,
hence a public officer who, by reason of the duties of his office, is accountable for public funds
or property, taking advantage of his official position, did then and there wilfully, unlawfully and
feloniously take or misappropriate for his personal use public funds in his custody in the total
amount of Three Hundred Fifty Thousand Pesos (P350,000.00), Philippine Currency, to the
damage and prejudice of the provincial government of Cagayan.
Upon motion of petitioner, the Sandiganbayan ordered the Office of the Ombudsman to
reinvestigate the cases. Petitioner was allowed to submit the affidavits executed by twelve
military officers who acknowledged receipt from petitioner of unspecified amounts which they
claimed had been used for counter-insurgency operations. In addition petitioner presented his
counter-affidavit.

In a letter dated January 19, 1995, Prosecutor Espinosa requested information from the Special
and Technical Audit Division of the COA whether there had been compliance with the
recommendations in the latter’s SAO Report No. 90-25 which, as already stated, required the
submission of documents covering claims for intelligence activities and the complete
documentation of payments made, and the provincial officials to stop using the 20%
Development Fund for purposes other than for development projects. He also inquired whether
on the basis of the affidavits executed by the twelve military officers, the disbursements could be
considered fully liquidated. In reply, COA Special and Technical Audit Division, through
Provincial Auditor Teresita Rios, stated:
[E]xcept for the list of recipients and the machine copies of the duly subscribed affidavits of
some of the recipients, records do not show that this office received the documents required
from the Governor. However, the list of recipients and the duly subscribed affidavits including
the representations made in the letter of the Provincial Treasurer and the Provincial Auditor,
may be a convincing proof that the questioned disbursements were disbursed according to the
intended purpose and not for private consumption. It could also be surmised that even the
former Provincial Auditor may be convinced as to the existence of the recipients of counter-
insurgency/intelligence funds as no notice of disallowance or suspension was issued on the
reimbursements.[1]
Apparently not satisfied with the explanation, Prosecutor Espinosa recommended to the
Ombudsman that the malversation cases against petitioner be pressed. His recommendation
was approved and so, on April 26, 1995, he asked the Sandiganbayan for the suspension
pendente lite of petitioner.

Petitioner opposed the motion and moved to quash the informations against him, contending
that-
First. THE PRELIMINARY INVESTIGATION CONDUCTED HEREIN WAS TAINTED BY
SERIOUS IRREGULARITIES THAT EFFECTIVELY DENIED THE ACCUSED OF HIS RIGHT
TO DUE PROCESS AND THEREBY RENDERED THE PROCEEDINGS TAKEN THEREIN
NULL AND VOID; and

Second. EVEN IF THE IRREGULARITIES THAT INFECT THE PRELIMINARY

INVESTIGATION ARE OVERLOOKED, NO PROBABLE CAUSE FOR THE CRIME OF
MALVERSATION IS MADE OUT BY THE EVIDENCE ON RECORD AND, CONSEQUENTLY,
THE INFORMATIONS FILED HEREIN ARE INVALID.
In a supplemental motion to quash the informations filed on May 29, 1995, petitioner submitted
to the court indorsements by officials. In a first indorsement to the Chairman of the COA,
Regional Director Rafael Marquez stated that he agreed with Provincial Auditor Teresita Rios
that the documents submitted by petitioner "may be a convincing proof that the questioned
disbursements were disbursed according to the intended purpose and not for private
consumption." In turn, in a second indorsement addressed to petitioner, COA Chairman Celso
D. Gangan stated that the documents submitted by petitioner "are substantial evidence to
support disbursements of the intelligence and confidential funds in question" as required by
COA Circular No. 92-385, dated October 1, 1992.

The Sandiganbayan therefore gave the prosecution fifteen (15) days within which "to firm up its
position" on the COA statements, "it appearing that the position taken by the various officers of
the Commission on Audit seemed to be tentative in the sense that there is no categorical claim
that these sworn statements indeed confirm the disbursement of the aggregate of P750,000."
However, on July 5, 1995, the prosecution reported that it had made inquiries from the legal
office of the COA but the COA did not reply. For his part, petitioner asked the COA Chairman for
a definitive statement of his liability, but his request was referred to Regional Director Marquez
who merely reiterated his previous statement that the "affidavits [submitted by petitioner] could
be considered as sufficient/adequate documents to liquidate the accountability of Governor
Aguinaldo."

Deeming the COA statements to be lacking in definiteness, the Sandiganbayan, on September

18, 1995, denied petitioner’s motion to quash the informations and set his arraignment, during
which petitioner pleaded "not guilty." The Sandiganbayan said:
Notwithstanding the repeated efforts of the Court as well as of the prosecution to categorically
identify the position of the COA on the matter, what consistently appears in the various
communications is that the COA is of the view that the affidavits in lieu of the actual liquidation
of expenses might serve as adequate liquidation. This position has been the same view which
the prosecution has earlier seen and has rejected.

Undoubtedly, the COA could have been more responsive to the request both of the Court and of
the accused itself in stating its position on the matter more categorically. However, the fact is
that it did not do so, and even if it had done so, the same does not appear to have altered the
fact that the prosecution at this time is of the view that the adequate cause exists to proceed
with the prosecution of the accused Governor Rodolfo E. Aguinaldo. It is for this reason that the
Instant Urgent Motion to Defer Arraignment wherein the various endorsements of COA officials
are appended is denied as is the Motion to Quash and other pleadings in connection herewith.
The Sandiganbayan withheld action on the prosecution’s motion to suspend petitioner pending
the pretrial.
Still in an effort to convince the Sandiganbayan that there was no case against him, petitioner
submitted on January 29, 1996 a Certificate of Settlement and Balances dated January 24,
1996, issued by Provincial Auditor Teresita Rios, allowing petitioner’s claim in audit and relying
for this purpose on the credit advice of Regional Director Marquez that the documents submitted
by petitioner were "sufficient enough to liquidate these expenses/disbursements." When asked
by the prosecutor whether Marquez’s credit advice was final, COA Chairman Celso D. Gangan
stated that it was "normally not subject to the review of [COA], the matter being within [Director
Marquez’s] audit competence."[2]

The Sandiganbayan was unconvinced. On March 4, 1996, it terminated the pretrial and, on
April 12, 1996, ordered the suspension of petitioner as Provincial Governor for ninety (90)
days. Its resolution reads:
It is well to note that prosecution of cases is left in the hands of the prosecutor. While the COA
can and may assist in collating evidence to substantiate a charge of malversation, it does not
preclude the Ombudsman from conducting its own investigation, and filing the appropriate
charge if, by its own determination, the evidence warrants the same.

The COA is merely the source of the facts in these cases. Any determination made by the COA
outside of the narration of facts duly supported by evidence will not by itself determine whether
or not adequate cause exists to prosecute a case. To demonstrate this point, the Supreme
Court has ruled that ..... a public officer may be held guilty of malversation based on a
‘preliminary’ audit report .... (De Guzman v. People, 119 SCRA 337, 348 (1982) and that ....[t]he
absence of a post-audit is not ... a fatal omission... nor is it a .... preliminary requirement to the
filing of an information for malversation as long as the prima facie guilt of the suspect has
already been established.. (Corpuz v. People, 194 SCRA 73, 79 (1990))

Nor is COA’s final determination required for a malversation case to prosper, much less will it
decide one way or the other the propriety of the suspension of an accused in a malversation
case filed, as sought herein.

Hence this petition for certiorari. Petitioner alleges that:

1. The Sandiganbayan gravely abused its discretion by completely disregarding the COA
findings and post-audit clearances, including the COA Chairman’s confirmation, which the
respondent court itself, together with the prosecution, sought and solicited during the course of
the proceedings;

2. In the higher interest of justice, the consideration of the post-audit findings of the COA can
still be the subject of the motion to dismiss even after arraignment of the petitioner;

3. And then, the presumptive validity of informations has been conclusively overcome by the
subsequent post audit of accountability of the accused petitioner by the COA which had since
issued a certificate of settlement and balances by which the accused’s subject claims have been
allowed in audit; and such audit was confirmed by the COA Chairman.
On the other hand, the prosecution argues that the affidavits of military officers are inadequate
for the purpose of liquidating disbursements in view of COA Circular No. 92-385 which provides
that "any disbursement from the confidential and/or intelligence fund shall be accounted for
solely on the certification of the head of the agency or by the officer-in-charge of the intelligence,
confidential or national security mission" and MLG Circular No. 83-4, dated February 7, 1983,
which provides that the 20% Development Fund should be utilized exclusively for development
projects and excludes expenditures for counter-insurgency operations.

After due consideration of the petition, the Court finds it to be without merit.
Petitioner alleges irregularity in the conduct of preliminary investigation and lack of probable
cause. In our opinion, the allegation as to irregularity in the preliminary investigation was
properly rejected by the respondent court. As already noted, after the cases had been filed, the
Sandiganbayan, upon petitioner’s request, ordered the Office of the Ombudsman to conduct a
reinvestigation. Petitioner was allowed to submit affidavits and other documents in support of
his defense and an opportunity to argue his case. The prosecutor remained fundamentally
unconvinced, however, by the additional evidence presented by petitioner.

Indeed, petitioner failed to submit certain documents required by COA rules to support claims
for disbursements. These are COA Circular No. 92-385 which provides that:
Any disbursement from the confidential and/or intelligence fund shall be accounted for solely on
the certification of the head of the agency or by the officer-in-charge of the intelligence,
confidential or national security mission.
and COA Circular No. 88-293 which provides:
For national defense and related agencies engaged in highly confidential operations or missions
the details of which cannot be divulged without posing a threat to national security, a certification
by the head of agency bearing on the nature of such highly confidential operations may instead
be submitted using Form # 2 (see attached sample). However, the agency concerned shall
maintain a complete file of all supporting documents for such transactions to ensure the
undertaking of a more extensive audit and examination by this Commission at anytime it deems
desirable or when the operations are completed and declassified. Such file shall include,
among others, the following data: name of asset or informer; nature and purpose or type of
information; date and amount given; signature if payee and such other relevant information.

Petitioner filed a counter-affidavit in which he stated:

I hereby certify, in my capacity as Governor of Cagayan, that the funds involved therein were
duly appropriated by the Sangguniang Panlalawigan of Cagayan and approved by the
Department of Interior and Local Government specifically for intelligence and counter-
insurgency purposes; that all the subject disbursements were made by me to bona fide
officers/personnel of the Armed Forces, para-military units and civilian components then
involved in anti-insurgency operations in Cagayan for intelligence and counter-insurgency
activities and operations; that said funds were to the best of my knowledge actually spent for the
purposes for which they were appropriated; that the expenses paid for were necessary, lawful
and incurred under the supervision of the officers/men who received them; and, that the
amounts spent were reasonable.
This counter-affidavit falls short of the requirements of COA Circular No. 88-293 which, while
allowing the use of "mere certification" to support liquidation vouchers (Par. VII(G)), nonetheless
requires the prescribed form to state that "the details and supporting documents are in our
custody and kept in our confidential file and may be audited if the circumstances so demand."

Petitioner alleges in his counter-affidavit that he had receipts from the recipients of the funds
but, he said, the receipts "may have been destroyed or lost beyond reconstitution" sometime in
1990 when he was suspended and subsequently removed from office. On the other hand the
affidavits of military officers do not disclose the name of informer, the nature and purpose of
information, the date and amount given to the informer, the signature of the payee and other
relevant information as required also by the same COA Circular No. 88-293. Save for the
personal circumstances of the affiants, the affidavits, which were uniformly worded, simply state:
3. That [in] the course of the operations of the counter-insurgency program, I received certain
amount in many occasions from the Provincial Government of Cagayan through Governor
Rodolfo Aguinaldo in pursuance of the same counter-insurgency program;

4. That I issued the corresponding receipt for all the amounts I received from Governor
Aguinaldo;

5. That I am willing to testify as to the truth and veracity of my statement if called upon by the
proper authorities.
Thus, the amounts allegedly received by the affiants are unspecified; the date the amounts
received by the affiants are not given; the affiants do not state how the amounts were spent by
them but only that they were spent "in pursuance" and "in support" of the counter-insurgency
operations. Moreover, while the affiants attested that they signed receipts for the amounts they
received from petitioner, not a single receipt was presented by petitioner. It is noteworthy that
while petitioner claims that he had also required receipts from civilian informants, runners,
couriers and families of victims of counter-insurgency operations,[3] no receipt nor any form of
acknowledgment by the said recipients was presented by petitioner.

While it is true that petitioner was later given a clearance by the Provincial Auditor, the
clearance is notable for its equivocation. Thus, the Provincial Auditor, after noting petitioner’s
failure to submit the needed documents, opined that nevertheless the affidavits presented "may
be a convincing proof that the questioned disbursements were disbursed according to the
intended purpose and not for private consumption." Because the prosecutor pressed for
petitioner’s prosecution, petitioner presented the certification of the Regional Director but, like
the certification of the Provincial Auditor, the certification also lacked firmness. It stated: "The
list of recipients, and the duly subscribed affidavits including the representations made in the
letter of the Provincial Treasurer and the Provincial Auditor may be a convincing proof that the
questioned disbursements were disbursed according to the intended purpose and not for private
consumption. It could also be surmised that even the former Provincial Auditor maybe
convinced as to the insurgency/intelligence funds as no notice of disallowance or suspension
was issued on the reimbursements."[4]

The indecisive nature of the Regional Director’s certification did not escape the notice of the
Sandiganbayan. It required the prosecution to secure a more definite and categorical ruling
from the COA. The effort failed to produce anything more reassuring. Instead of concurring in
the opinion of the Regional Director, the Chairman of the COA tossed the matter to the latter on
the ground that "final authority to conduct post audit of confidential and intelligence expenses
had been delegated to Regional Directors like Director Rafael Marquez and the latter’s decision
is normally not subject to review of [the central office]."

Given the indecisive, uncertain and, at best, tentative opinion of COA officials, we think the
Sandiganbayan correctly decided to proceed with the trial of petitioner, leaving the ultimate
resolution of the questions (whether the affidavits submitted by petitioner constitute sufficient
evidence of disbursement of public funds for the purpose claimed by petitioner and whether
charging certain expenditures to the socalled 20% Development Fund is authorized under the
law) to be made after trial. For its part, the Office of the Ombudsman, having found the COA’s
original finding of failure to comply with accounting rules unaffected by later equivocal and
hedging clearance of COA’s officials, found no reason to reconsider its decision to prosecute.

In Ramos v. Aquino,[5] we ruled that the fact that petitioners’ accounts and vouchers had been
passed in audit is not a ground for enjoining the provincial fiscal from conducting a preliminary
investigation for the purpose of determining the criminal liability of petitioners for malversation of
public funds through falsification of public documents.
The Auditor General, as noted is vested with the power to examine, audit and settle all accounts
pertaining to the revenues and receipts from whatever source, and to audit, in accordance with
law and administrative regulations, all expenditures of funds or property pertaining to or held in
trust by the government as well as the provinces or municipalities thereof. That is one
thing. The ascertainment of whether a crime [is] committed and by whom is definitely another. [6]
COA’s approval of petitioner’s disbursements only relates to the administrative aspect of the
matter[7] of his accountability but it does not foreclose the Ombudsman’s authority to investigate
and determine whether there is a crime to be prosecuted for which petitioner is answerable. [8]
Therefore, as correctly stated by the Sandiganbayan in its order of April 12, 1996, while the
COA may assist in gathering evidence to substantiate a charge of malversation, any
determination made by it will not be conclusive as to whether adequate cause exists to
prosecute a case. This is so because the Ombudsman is given the power to investigate on its
own an illegal act or omission of a public official.[9]

Indeed, while the COA may regard petitioner to have substantially complied with its accounting
rules, this fact is not sufficient to dismiss the criminal cases. Beyond compliance with COA rules
and regulations, the question is whether there was a misappropriation of public funds by
petitioner. This is a question of fact to be established by evidence. All that petitioner’s failure to
submit the documents required in the COA circulars in questions means is that there is a
presumption of malversation sufficient to justify the filing of a case in court. As Art. 217 of the
Revised Penal Code provides:
The failure of a public officer to have duly forthcoming any public funds or property with which
he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence
that he has put such missing funds or property to personal use.
Petitioner may still prove his innocence. Until he does this, however, the presumption that
public funds were put to personal use stands.

What we said in Paredes v. Sandiganbayan[10] is apropos to this case:

[T]his Court is loath to interfere with the discretion of the Ombudsman unless such discretion is
clearly shown to have been abused. As explained in Young v. Office of the Ombudsman:

The rule is based not only upon respect for the investigatory and prosecutory powers granted by
the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the
functions of the courts will be grievously hampered by innumerable petitions assailing the
dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard
to complaints filed before it , in much the same way that the courts would be extremely
swamped if they could be compelled to review the exercise of discretion on the part of the
fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a
complaint by a private complainant.
It is insisted, however, that because COA has the constitutional authority to examine, audit and
settle accounts pertaining to the expenditures of the funds in question, its finding is conclusive
and mandatory and not reviewable except on certiorari and only by this Court. Petitioner cites
P.D. No. 1445 (Government Auditing Code) which provides:
Sec. 52. OPENING AND REVISION OF SETTLED ACCOUNTS.- (1) At any time before the
expiration of three years after the settlement of any account by an auditor, the Commission may
motu proprio review and revise the account or settlement and certify a new balance. For that
purpose, it may require any account, vouchers, or other papers connected with the matter to be
forwarded to it.

(2) When any settled account appears to be tainted with fraud, collusion, or error of calculation,
or when new and material evidence is discovered, the Commission may, within three years after
the original settlement, open the account, and after a reasonable time for reply or appearance of
the party concerned, may certify thereon a new balance. An auditor may exercise the same
power with respect to settled account pertaining to the agencies under his audit jurisdiction.

(3) Accounts once finally settled shall in no case be opened or reviewed except as herein
provided.
Petitioner asserts that because of this provision any account already settled by the COA may
only be reopened within three years by the COA itself and not by the Sandiganbayan.

This same argument was made in Ramos v. Aquino. In rejecting the contention, this Court,
through Justice, later Chief Justice, Fernando, stated:
There is likewise an invocation by appellants of alleged statutory support for their untenable
view. It is likewise in vain. All that appellants have to go on is the concluding paragraph of
Section 657 of the Revised Administrative Code: "Accounts once finally settled shall in no case
be opened or reviewed except as herein provided." The paragraph immediately preceeding
should have disabused the minds of appellants of any cause for optimism. All that it provides is
that in case any settled account "appears to be infected with fraud, collusion or error of
calculation or when new and material evidence is discovered, the Auditor General may, within
three years after original settlement, open such account, and after a reasonable time for his
reply or appearance, may certify thereon a new balance." The official given the opportunity for a
reply or appearance is the provincial auditor, for under the first paragraph of this particular
section, the Auditor General at any time before the expiration of three years after the making of
any settlement by a provincial auditor, may, of his own motion, review and revise the same and
certify a new balance. Nowhere does it appear that such a statutory grant of authority of the
Auditor General to open revised settled accounts carries with it the power to determine who may
be prosecuted in the event that in the preparation thereof a crime has been committed. The
conclusive effect of the finality of his decision on the executive branch of the government thus
relates solely to the administrative aspect of the matter.[11]
Finally, it is contended that while preventive suspension is mandatory in cases involving fraud
upon government or public funds or property,[12] it is not automatic because a pre-suspension
hearing on the validity of the information must first be conducted. Petitioner quotes from People
v. Albano[13] that "[the] pre-suspension hearing is conducted to determine basically the validity of
the information, from which the court can have a basis to either suspend the accused, and
proceed with the trial on the merits of the case, or withhold the suspension of the latter and
dismiss the case, or correct any part of the proceeding which impairs its validity."

This was done in the present case. To the prosecution’s "Motion to Suspend Accused
Pendente Lite," petitioner filed a "Consolidated Motion to Quash/Dismiss and Opposition to the
Motion to Suspend Accused Pendente Lite." Thereafter, petitioner presented several
certifications from the COA purportedly clearing petitioner of any accountability. On the basis of
pleadings and documents thus submitted by the parties, the Sandiganbayan denied petitioner’s
motion to quash and granted the prosecution’s motion to suspend petitioner pendente
lite. Hence, as we recently held:
[U]pon a proper determination of the validity of the information, it becomes mandatory for the
court to immediately issue the suspension order. The rule on the matter is specific and
categorical. It leaves no room for interpretation. It is not within the court’s discretion to hold in
abeyance the suspension of the accused officer on the pretext that the order denying the motion
to quash is pending review before the appellate courts. Its discretion lies only during the pre-
suspension hearing where it is required to ascertain whether or not (1) the accused had been
afforded due preliminary investigation prior to the filing of the information against him, (2) the
acts for which he was charged constitute a violation of the provisions of Republic Act No. 3019
or of the provisions of Title 7, Book II of the Revised Penal Code, or (3) the informations against
him can be quashed, under any of the grounds provided in Section 2, Rule 117 of the Rules of
Court.[14]
All told, we find no basis for holding that the Sandiganbayan committed grave abuse of its
discretion in denying the motion to quash and ordering the preventive suspension of petitioner.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

APPEAL

JOSEPH H. REYES VS. COMMISSION ON AUDIT (G.R. No. 125129, March 29, 1999)

DECISION

PARDO, J.:

Petitioner Joseph H. Reyes, a member of the TLRC[1] Provident Fund Board of Trustees, filed
this petition with the Supreme Court on June 17, 1996, as an appeal by certiorari under Rule 44
of the Revised Rules of Court, assailing the decision[2] of the Commission on Audit (COA)
disallowing the refund of the government share in the fund to the employee-members, and the
denial of the motion for reconsideration of the said decision.[3]

By Resolution No. 89-003,[4] the TLRC Executive Committee created a Provident Fund the
primary purpose of which was to augment the retirement benefits of the officers and employees
of TLRC. The Provident Fund also provided additional benefits[5] to its members, in accordance
with the policies and guidelines approved by the Board of Trustees. The Fund's sources of
capital were from contributions of each member consisting of 2% of his gross monthly salary
and TLRC's or the government's counterpart share equivalent to 10% of the member's gross
monthly salary, earnings of funds and others.[6]

On June 3, 1993, Corporate Auditor Adelaida S. Flores suspended the transfer of funds from
TLRC to the Provident Fund for the years 1990-1991, amounting to P11,065,715.84, per Notice
of Suspension No. 93-006[7]. Auditor Flores held that under Par. 5.4 of Corporate Compensation
Circular No. 10, Rules and Regulations issued under R.A. 6758,[8] fringe benefits were allowed
provided that statutory authority covered such grant of benefits. In this case, there is no law
authorizing the grant of fringe benefits to TLRC officers and employees. Furthermore, all
Provident Funds are covered by R.A. 4537,[9] to which TLRC may not qualify.

On September 14, 1993, the TLRC Provident Fund Board of Trustees issued Resolution No. 93-
2-21[10], discontinuing the collection of contributions for the Fund from both the TLRC and the
members. It also ordered the members' personal contributions collected from March 1, 1993
until September 15, 1993, refunded to them immediately. On September 21, 1993, the Board
issued Resolution 93-2-22[11] dissolving the Provident Fund and ordering the distribution of the
personal and corporate shares to the members thereof, on or before October 31, 1993.

On December 2, 1993, Corporate Auditor Flores issued Notice of Disallowance No. 93-003,
disallowing in audit the amount of P11,065,715.84, representing the government's share paid to
the TLRC Provident Fund refunded to members, covering the period 1990 to 1991, including all
amounts that may have been transferred to the Fund after 1991.[12]

Petitioner Joseph H. Reyes, a member of the TLRC Board of Trustees, appealed the
disallowance to the Commission on Audit. On October 12, 1995, the Commission on Audit
denied the appeal per Decision No. 95-571.[13] The Commission ruled that the government's
share in the Provident Fund must be reverted to the TLRC and not be given to the employees. It
held that since the primary purpose of the Provident Fund was not realized or attained due to its
discontinuance and dissolution, then the employees were not entitled to the government's share
in the Fund.

On December 7, 1995, petitioner wrote the Commission on Audit seeking a reversal of COA
Decision No. 95-571. On May 2, 1996, the Commission on Audit denied the motion for
reconsideration per Decision No. 96-236.[14]

Hence, this petition to review the decision of the Commission on Audit.

Petitioner contends that the dissolution of the Provident Fund does not render illegal the
distribution of government's share to the members. He avers that when TLRC made its
contributions to the Provident Fund, it had divested itself of the ownership of whatever
contributions it gave. Furthermore, the money contributed to the fund became a trust fund for
the benefit of the members. Upon the dissolution of the Fund, the legal and equitable titles were
merged in the members, as beneficiaries. He asserts that the members have a vested right, not
only on their own contributions, but to the government share as well. He claims that since the
Fund's pretermination or dissolution was not due to the members' fault, then it would be unfair
and greatly prejudicial to deprive them of the government share to which they are entitled.

We are not impressed. We deny the petition.

To begin with, Article IX-A, Section 7 of the Constitution provides that decision, orders of rulings
of the Commission on Audit may be brought to the Supreme Court on certiorari by the aggrieved
party.[15] Under Rule 64, Section 2, 1997 Rules of Civil Procedure, judgment or final order of the
Commission on Audit may be brought by an aggrieved party to this Court on certiorari under
Rule 65. However, the petition in this case was filed on June 17, 1996, prior to the effectivity of
the 1997 Rules of Civil Procedure. Nevertheless, the mode of elevating cases decided by the
Commission on Audit to this Court was only by petition for certiorari under Rule 65, as provided
by the 1987 Constitution.[16] The judgments and final orders of the Commission on Audit are not
reviewable by ordinary writ of error or appeal via certiorari to this Court. Only when the
Commission on Audit acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, may this Court entertain a petition for certiorari under
Rule 65.[17] Hence, a petition for review on certiorari or appeal by certiorari to the Supreme Court
under Rule 44 or 45 of the 1964 Revised Rules of Court is not allowed from any order, ruling or
decision of the Commission on Audit.

However, setting aside the procedural error pro hac vice, and treating the petition as one for
certiorari under Rule 65, we find that the Commission on Audit did not commit a grave abuse of
discretion in disallowing the distribution of the government share in the aborted TLRC Provident
Fund to its members. As correctly pointed out by the COA in its decision,[18] the government
contributions were made on the condition that the same would be used to augment the
retirement and other benefits of the TLRC employees. Since the purpose was not attained due
to the question on the validity of the Fund, then the employees are not entitled to claim the
government share disbursed as its counterpart contribution to the Fund. Otherwise, it would be
tantamount to the use of public funds outside the specific purpose for which the funds were
appropriated.

There is no merit to petitioner's claim that the members of the Provident Fund acquired a vested
right over the government contributions. "A vested right is one which is absolute, complete and
unconditional, to the exercise of which no obstacle exists, and which is immediate and perfect in
itself and not dependent upon a contingency,"[19] As previously stated, the government
contributions were subject to the condition that the funds would be used to augment the
retirement and other fringe benefits of TLRC employees.

What is more, the Provident Fund was dissolved due to lack of statutory basis. Thus,
contributions made were unauthorized, if not unlawful.

WHEREFORE, the Court hereby DENIES the petition and AFFIRMS the decision of the
Commission on Audit.
No costs.

SO ORDERED.

THE AMENDING PROCESS

ARTURO M. TOLENTINO VS. COMMISSION ON ELECTIONS, AND THE CHIEF

ACCOUNTANT, THE AUDITOR, AND THE DISBURSING OFFICER OF THE 1971
CONSTITUTIONAL CONVENTION (G.R. No. L-34150, October 16, 1971)

DECISION

BARREDO, J.:

Petition for prohibition principally to restrain the respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971", at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the
Philippines to eighteen years "shall be submitted" for ratification by the people pursuant to
Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent imple-
menting resolutions, by declaring said resolutions to be without the force and effect of law in so
far as they direct the holding of such plebiscite and by also declaring the acts of the respondent
Commission (COMELEC) performed and to be done by it in obedience to the aforesaid Conven-
tion resolutions to be null and void, for being violative of the Constitution of the Philippines.

As a preliminary step, since the petition named as respondent only the COMELEC, the Court
required that copies thereof be served on the Solicitor General and the Constitutional
Convention, through its President, for such action as they may deem proper to take. In due
time, respondent COMELEC filed its answer joining issues with petitioner. To further put things
in proper order, and considering that the fiscal officers of the Convention are indispensable
parties in a proceeding of this nature, since the acts sought to be enjoined involve the
expenditure of funds appropriated by law for the Convention, the Court also ordered that the
Disbursing Officer, Chief Accountant and Auditor of the Convention be made respondents. After
the petition was so amended, the first appeared thru Senator Emmanuel Pelaez and the last two
thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist petitioner's action.

For reasons of orderliness and to avoid unnecessary duplication of arguments and even
possible confusion, and considering that with the principal parties being duly represented by
able counsel, their interests would be adequately protected already, the Court had to limit the
number of intervenors from the ranks of the delegates to the Convention who, more or less,
have legal interest in the success of the respondents, and so, only Delegates Raul S.
Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose
Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers in
their own right, have been allowed to intervene jointly. The Court feels that with such an array
of brilliant and dedicated counsel, all interests involved should be duly and amply represented
and protected. At any rate, notwithstanding that their corresponding motions for leave to
intervene or to appear as amicus curiae[1] have been denied, the pleadings filed by the other
delegates and some private parties, the latter in representation of their minor children allegedly
to be affected by the result of this case, are with the records and the Court acknowledges that
they have not been without value as materials in the extensive study that has been undertaken
in this case.

The background facts are beyond dispute. The Constitutional Convention of 1971 came into
being by virtue of two resolutions of the Congress of the Philippines approved in its capacity as
a constituent assembly convened for the purpose of calling a convention to propose
amendments to the Constitution, namely, Resolutions 2 and 4 of the joint sessions of Congress
held on March 16, 1967 and June 17, 1969 respectively. The delegates to the said Convention
were all elected under and by virtue of said resolutions and the implementing legislation thereof,
Republic Act 6132. The pertinent portions of Resolution No. 2 read as follows:

"SECTION 1. There is hereby called a convention to propose amendments to the Constitution

of the Philippines, to be composed of two elective Delegates from each representative district
who shall have the same qualifications as those required of Members of the House of
Representatives.
x x x x
"SECTION 7. The amendments proposed by the Convention shall be valid and considered part
of the Constitution when approved by a majority of the votes cast in an election at which they
are submitted to the people for their ratification pursuant to Article XV of the Constitution."

Resolution No. 4 merely modified the number of delegates to represent the different cities and
provinces fixed originally in Resolution No. 2.

After the election of the delegates held on November 10, 1970, the Convention held its
inaugural session on June 1, 1971. Its preliminary labors of election of officers, organization of
committees and other preparatory works over, as its first formal proposal to amend the
Constitution, in its session which began on September 27, 1971, or more accurately, at about
3:30 in the morning of September 28, 1971, the Convention approved Organic Resolution No. 1
reading thus:

"CC ORGANIC RESOLUTION NO. 1

"A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF

THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18
"BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:
"Section 1. Section One of Article V of the Constitution of the Philippines is amended to read as
follows:

'Section 1. Suffrage may be exercised by (male) citizens of the Philippines not otherwise
disqualified by law, who are (twenty-one) EIGHTEEN years or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the municipality wherein
they propose to vote for at least six months preceding the election.'

"Section 2. This amendment shall be valid as part of the Constitution of the Philippines when
approved by a majority of the votes cast in a plebiscite to coincide with the local elections in
November 1971.
"Section 3. This partial amendment, which refers only to the age qualification for the exercise of
suffrage shall be without prejudice to other amendments that will be proposed in the future by
the 1971 Constitutional Convention on other portions of the amended Section or on other
portions of the entire Constitution.
"Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its
savings or from its unexpended funds for the expense of the advanced plebiscite; provided,
however, that should there be no savings or unexpended sums, the Delegates waive P250.00
each or the equivalent of 2-1/2 days per diem."

By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent
Comelec "to help the Convention implement (the above) resolution." The said letter reads:
"September 28, 1971
"The Commission on Elections
Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:
x x x x
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the
Constitutional Convention Act of 1971, may we call upon you to help the Convention implement
this resolution?

Sincerely,
(Sgd.) DIOSDADO P. MACAPAGAL
President"

On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it
will hold the plebiscite on condition that:

“(a) The Constitutional Convention will undertake the printing of separate official ballots,
election returns and tally sheets for the use of said plebiscite at its expense;
“(b) The Constitutional Convention will adopt its own security measures for the printing and
shipment of said ballots and election forms; and
“(c) Said official ballots and election forms will be delivered to the Commission in time so that
they could be distributed at the same time that the Commission will distribute its official and
sample ballots to be used in the elections on November 8, 1971."

What happened afterwards may best be stated by quoting from intervenors' statement of the
genesis of the above proposal:

"The President of the Convention also issued an order forming an Ad Hoc Committee to
implement the Resolution.
"This Committee issued implementing guidelines which were approved by the President who
then transmitted them to the Commission on Elections.
"The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7, 1971, enclosing copies of the
order, resolution and letters of transmittal above referred to (Copy of the report is hereto
attached as Annex 8- Memorandum).

"RECESS RESOLUTION

"In its plenary session in the evening of October 7, 1971, the Convention approved a resolution
authored by Delegate Antonio Olmedo of Davao Oriental, calling for a recess of the Convention
from November 1, 1971 to November 9, 1971 to permit the delegates to campaign for the
ratification of Organic Resolution No. 1. (Copies of the resolution and the transcript of debate
thereon are hereto attached as Annexes 9 and 9-A Memorandum, respectively).
 "RESOLUTION CONFIRMING IMPLEMENTATION

"On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate Jose
Ozamiz confirming the authority of the President of the Convention to implement Organic
Resolution No. 1, including the creation of the Ad Hoc Committee and ratifying all acts
performed in connection with said implementation."

Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other
implementing resolutions thereof subsequently approved by the Convention have no force and
effect as laws in so far as they provide for the holding of a plebiscite coincident with the
elections of eight senators and all city, provincial and municipal officials to be held on November
8, 1971, hence all of Comelec's acts in obedience thereof and tending to carry out the holding of
the plebiscite directed by said resolutions are null and void, on the ground that the calling and
holding of such a plebiscite is, by the Constitution, a power lodged exclusively in Congress, as a
legislative body, and may not be exercised by the Convention, and that, under Section 1, Article
XV of the Constitution, the proposed amendment in question cannot be presented to the people
for ratification separately from each and all of the other amendments to be drafted and proposed
by the Convention. On the other hand, respondents and intervenors posit that the power to
provide for, fix the date and lay down the details of the plebiscite for the ratification of any
amendment the Convention may deem proper to propose is within the authority of the
Convention as a necessary consequence and part of its power to propose amendments and that
this power includes that of submitting such amendments either individually or jointly at such time
and manner as the Convention may direct in its discretion. The Court's delicate task now is to
decide which of these two poses is really in accord with the letter and spirit of the Constitution.

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They
contend that the issue before Us is a political question and that the Convention being a
legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner
are beyond the control of the Congress and the courts. In this connection, it is to be noted that
none of the respondents has joined intervenors in this posture. In fact, respondents Chief
Accountant and Auditor of the Convention, expressly concede the jurisdiction of this Court in
their answer acknowledging that the issue herein is a justifiable one.

Strangely, intervenors cite in support of this contention portions of the decision of this Court in
the case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite
their being divided in their opinions as to the other matters therein involved, were precisely
unanimous in upholding its jurisdiction. Obviously, distinguished counsel have either failed to
grasp the full impact of the portions of Our decision they have quoted or would misapply them
by taking them out of context.

There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis
the constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that
matter, those of a constitutional convention called for the purpose of proposing amendments to
the Constitution, which concededly is at par with the former. A simple reading of Our ruling in
that very case of Gonzales relied upon by intervenors should dispel any lingering misgivings as
regards that point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court
thus:

"As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court - speaking through
one of the leading members of the Constitutional Convention and a respected professor of
Constitutional Law, Dr. Jose P. Laurel - declared that 'the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.'
"It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue submitted
thereto as a political one, declined to pass upon the question whether or not a given number of
votes cast in Congress in favor of a proposed amendment to the Constitution - which was being
submitted to the people for ratification - satisfied the three-fourths vote requirement of the
fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief
Accountant of the Senate (81 Phil. 818) Avelino v. Cuenco, (G.R. No. L-2851, March 4 & 14,
1949) Tañada v. Cuenco, (G.R. No. L-10520, Feb. 28, 1957) and Macias v. Commission on
Elections (G.R. No. L-18684, Sept. 14, 1961) In the first, we held that the officers and
employees of the Senate Electoral Tribunal are under its supervision and control, not of that of
the Senate President, as claimed by the latter; in the second, this Court proceeded to determine
the number of Senators necessary for a quorum in the Senate; in the third, we nullified the
election, by Senators belonging to the party having the largest number of votes in said chamber,
purporting to act on behalf of the party having the second largest number of votes therein, of two
(2) Senators belonging to the first party, as members, for the second party, of the Senate
Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting
to apportion the representative districts for the House of Representatives, upon the ground that
the apportionment had not been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory, advanced in these four (4) cases,
that the issues therein raised were political questions the determination of which is beyond
judicial review.
"Indeed, the power to amend the Constitution or to propose amendments thereto is not included
in the general grant of legislative powers to Congress (Section 1, Art. VI, Constitution of the Phi-
lippines) It is part of the inherent powers of the people - as the repository of sovereignty in a
republican state, such as ours (Section 1, Art. II, Constitution of the Philippines) - to make, and,
hence, to amend their own Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such power. (Section 1, Art. XV,
Constitution of the Philippines) Hence, when exercising the same, it is said that Senators and
members of the House of Representatives act, not as members of Congress, but as component
elements of a constituent assembly. When acting as such, the members of Congress derive
their authority from the Constitution, unlike the people, when performing the same function, (Of
amending the Constitution) for their authority does not emanate from the Constitution - they are
the very source of all powers of government, including the Constitution itself.
"Since, when proposing, as a constituent assembly, amendments to the Constitution, the
members of Congress derive their authority from the Fundamental Law, it follows, necessarily,
that they do not have the final say on whether or not their acts are within or beyond
constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to
the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our
Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon
the Supreme Court, (And, inferentially, to lower courts.) the power to declare a treaty un-
constitutional, (Sec. 2(1), Art. VIII of the Constitutional), despite the eminently political character
of treaty-making power.
"In short, the issue whether or not a Resolution of Congress - acting as a constituent assembly -
violates the Constitution is essentially justifiable, not political, and, hence, subject to judicial re-
view, and, to the extent that this view may be inconsistent with the stand taken in Mabanag v.
Lopez Vito, (supra) the latter should be deemed modified accordingly. The Members of the
Court are unanimous on this point."

No one can rightly claim that within the domain of its legitimate authority, the Convention is not
supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner
point otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is
that the Constitutional Convention of 1971, as any other convention of the same nature, owes its
existence and derives all its authority and power from the existing Constitution of the
Philippines. This Convention has not been called by the people directly as in the case of a
revolutionary convention which drafts the first Constitution of an entirely new government born
of either a war of liberation from a mother country or of a revolution against an existing
government or of a bloodless seizure of power a la coup d'etat. As to such kind of conventions,
it is absolutely true that the convention is completely without restraint and omnipotent all wise,
and it is as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional
Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the
fact that the current convention came into being only because it was called by a resolution of a
joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV
of the present Constitution which provides:

"ARTICLE XV - AMENDMENTS

"SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the
Members of the Senate and of the House of Representative's voting separately, may propose
amendments to this Constitution or call a convention for the purpose. Such amendments shall
be valid as part of this Constitution when approved by a majority of the votes cast at an election
at which the amendments are submitted to the people for their ratification."

True it is that once convened, this Convention became endowed with extraordinary powers
generally beyond the control of any department of the existing government, but the compass of
such powers can be coextensive only with the purpose for which the convention was called and
as it is self-evident that the amendments it may propose cannot have any effect as part of the
Constitution until the same are duly ratified by the people, it necessarily follows that the acts of
the convention, its officers and members are not immune from attack on constitutional
grounds. The present Constitution is in full force and effect in its entirety and in everyone of its
parts, the existence of the Convention notwithstanding, and operates even within the walls of
that assembly. While it is indubitable that in its internal operation and the performance of its
task to propose amendments to the Constitution it is not subject to any degree of restraint or
control by any other authority than itself, it is equally beyond cavil that neither the Convention
nor any of its officers or members can rightfully deprive any person of life, liberty or property
without due process of law, deny to anyone in this country the equal protection of the laws or the
freedom of speech and of the press in disregard of the Bill of Rights of the existing Cons-
titution. Nor, for that matter, can such Convention validly pass any resolution providing for the
taking of private property without just compensation or for the imposition or exacting of any tax,
impost or assessment, or declare war or call the Congress to a special session, suspend the
privilege of the writ of habeas corpus, pardon a convict or render judgment in a controversy
between private individuals or between such individuals and the state, in violation of the
distribution of powers in the Constitution.

It being manifest that there are powers which the Convention may not and cannot validly assert,
much less exercise, in the light of the existing Constitution, the simple question arises, should
an act of the Convention be assailed by a citizen as being among those not granted to or
inherent in it, according to the existing Constitution, who can decide whether such a contention
is correct or not? It is of the very essence of the rule of law that somehow somewhere the
power and duty to resolve such a grave constitutional question must be lodged on some
authority, or we would have to confess that the integrated system of government established by
our founding fathers contains a wide vacuum no intelligent man could ignore, which is naturally
unworthy of their learning, experience and craftsmanship in constitution-making.

We need not go far in search for the answer to the query We have posed. The very decision of
Chief Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and re-
enforces the irrefutable logic and wealth of principle in the opinion written for a unanimous Court
by Justice Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:

“.... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines, allotment
of power to the executive, the legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the several departments, however,
sometimes makes it hard to say just where the one leaves off and the other begins. In times of
social disquietude or political excitement, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the
only constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.
"As any human production, our Constitution is of course lacking perfection and perfectibility, but
as much as it was within the power of our people, acting through their delegates to so provide,
that instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole, under a
system of checks and balances, and subject to specific limitations and restrictions provided in
the said instrument. The Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism by
which to direct the course of government along constitutional channels, for then the distribution
of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any living Constitution. In
the United States where no express constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to speak of its historical origin and
development there, has been set at rest by popular acquiescence for a period of more than one
and a half centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of Article VIII of our Constitution.
"The Constitution is a definition of the powers or government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality of
the judiciary as the rational way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the Consti-
tution and to establish for the parties in an actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all that is involved in what is termed 'judicial
supremacy' which properly is the power of judicial review under the Constitution. Even then, this
power of judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or
the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren
legal questions and to strike conclusions unrelated to actualities. Narrowed as its functions is in
this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the executive
and legislative departments of the government.
"But much as we might postulate on the internal checks of power provided in our Constitution, it
ought not the less to be remembered that, in the language of James Madison, the system itself
is not 'the chief palladium of constitutional liberty . . . the people who are authors of this blessing
must also be its guardians . . . their eyes must be ever ready to mark, their voices to pronounce
. . . aggression on the authority of their constitution.' In the last and ultimate analysis, then, must
the success of our government in the unfolding years to come be tested in the crucible of
Filipino minds and hearts than in consultation rooms and court chambers.
"In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935,
confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral
Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for
the filing of protests against the election, returns and qualifications of members of the National
Assembly; notwithstanding the previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the
effect of cutting off the power of the Electoral Commission to entertain protests against the
election, returns and qualifications of members of the National Assembly, submitted after
December 3, 1935, then the resolution of the Electoral Commission of December 9, 1935, is
mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral
Commission has the sole power of regulating its proceedings to the exclusion of the National
Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed
said date as the last day for filing protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.
"Here is then presented an actual controversy involving as it does a conflict of a grave
constitutional nature between the National Assembly on the one hand, and the Electoral
Commission on the other. From the very nature of the republican government established in our
country in the light of American experience and of our own, upon the judicial department is
thrown the solemn and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission, as we shall have occasion to refer
hereafter, is a constitutional organ, created for a specific purpose, namely, to determine all
contests relating to the election, returns and qualifications of the members of the National
Assembly. Although the Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is not subject to constitutional
restriction. The Electoral Commission is not a separate department of the government, and
even if it were, conflicting claims of authority under the fundamental law between departmental
powers and agencies of the government are necessarily determined by the judiciary in justifiable
and appropriate cases. Discarding the English type and other European types of constitutional
government, the framers of our Constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some countries which
have declined to follow the American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to interpret the fundamental
law. This is taken as a recognition of what otherwise would be the rule that in the absence of
direct prohibition, courts are bound to assume what is logically their function. For instance, the
Constitution of Poland of 1921, expressly provides that courts shall have no power to examine
the validity of statutes (art. 81, Chap. IV). The former Austrian Constitution contained a similar
declaration. In countries whose constitution are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia
(arts. 2 and 3, Preliminary Law to Constitutional Charter of the Czechoslovak, Republic,
February 29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic of 1931)
especial constitutional courts are established to pass upon the validity of ordinary laws. In our
case, the nature of the present controversy shows the necessity of a final constitutional arbiter
to determine the conflict of authority between two agencies created by the Constitution. Were
we to decline to take cognizance of the controversy, who will determine the conflict? And if the
conflict were left undecided and undetermined, would not a void be thus created in our
constitutional system which may in the long run prove destructive of the entire framework? To
ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion
in our constitutional system. Upon principle, reason, and authority, we are clearly of the opinion
that upon the admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject matter of the present controversy for the purpose of determining
the character, scope and extent of the constitutional grant to the Electoral Commission as 'the
sole judge of all contests relating to the election, returns and qualifications of the members of
the National Assembly."

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these
postulates just quoted do not apply only to conflicts of authority between the three existing
regular departments of the government but to all such conflicts between and among these
departments, or, between any of them, on the one hand, and any other constitutionally created
independent body, like the electoral tribunals in Congress, the Comelec and the constituent
assemblies constituted by the Houses of Congress, on the other. We see no reason of logic or
principle whatsoever, and none has been convincingly shown to Us by any of the respondents
and intervenors, why the same ruling should not apply to the present Convention, even if it is an
assembly of delegates elected directly by the people, since at best, as already demonstrated, it
has been convened by authority of and under the terms of the present Constitution.

Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the
present case. It goes without saying that We do this not because the Court is superior to the
Convention or that the Convention is subject to the control of the Court, but simply because both
the Convention and the Court are subject to the Constitution and the rule of law, and "upon
principle, reason and authority," per Justice Laurel, supra, it is within the power, as it is the
solemn duty of the Court, under the existing Constitution to resolve the issues in which peti-
tioner, respondents and intervenors have joined in this case.

II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the
powers of the Constitutional Convention of 1971 to order, on its own fiat, the holding of a
plebiscite for the ratification of the proposed amendment reducing to eighteen years the age for
the exercise of suffrage under Section 1 of Article V of the Constitution proposed in the
Convention's Organic Resolution No. 1 in the manner and form provided for in said resolution
and the subsequent implementing acts and resolution of the Convention?

At the threshold, the environmental circumstances of this case demand the most accurate and
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has
very clearly stated that he is not against the constitutional extension of the right of suffrage to
the eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress such a
proposal, and that, in truth, the herein petition is not intended by him to prevent that the
proposed amendment here involved be submitted to the people for ratification, his only purpose
in filing the petition being to comply with his sworn duty to prevent, whenever he can, any
violation of the Constitution of the Philippines even if it is committed in the course of or in con-
nection with the most laudable undertaking. Indeed, as the Court sees it, the specific question
raised in this case is limited solely and only to the point of whether or not it is within the power of
the Convention to call for a plebiscite for the ratification by the people of the constitutional
amendment proposed in the abovequoted Organic Resolution No. 1, in the manner and form
provided in said resolution as well as in the subsequent implementing actions and resolution of
the Convention and its officers, at this juncture of its proceedings, when, as it is a matter of
common knowledge and judicial notice, it is not set to adjourn sine die, and is, in fact, still in the
preliminary stages of considering other reforms or amendments affecting other parts of the
existing Constitution; and, indeed, Organic Resolution No. 1 itself expressly provides that the
amendment therein proposed "shall be without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional Convention on other portions of the amended
section or on other portions of the entire Constitution." In other words, nothing that the Court
may say or do in this case should be understood as reflecting, in any degree or means, the
individual or collective stand of the members of the Court on the fundamental issue of whether
or not the eighteen-year-olds should be allowed to vote, simply because that issue is not before
Us now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed
amendment may be presented to the people for their approval or rejection.

Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have
not blinded them to the absolute necessity, under the fundamental principles of democracy to
which the Filipino people is committed, of adhering always to the rule of law. Surely, their
idealism, sincerity and purity of purpose cannot permit any other line of conduct or approach in
respect of the problem before Us. The Constitutional Convention of 1971 itself was born, in a
great measure, because of the pressure brought to bear upon the Congress of the Philippines
by various elements of the people, the youth in particular, in their incessant search for a
peaceful and orderly means of bringing about meaningful changes in the structure and bases of
the existing social and governmental institutions, including the provisions of the fundamental law
related to the well-being and economic security of the underprivileged classes of our people as
well as those concerning the preservation and protection of our natural resources and the
national patrimony, as an alternative to violent and chaotic ways of achieving such lofty
ideals. In brief, leaving aside the excesses of enthusiasm which at times have justifiably or
unjustifiably marred the demonstrations in the streets, plazas and campuses, the youth of the
Philippines, in general, like the rest of the people, do not want confusion and disorder, anarchy
and violence; what they really want are law and order, peace and orderliness, even in the pur-
suit of what they strongly and urgently feel must be done to change the present order of things
in this Republic of ours. It would be tragic and contrary to the plain compulsion of these
perspectives, if the Court were to allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of the applicable provisions of
the Constitution. Needless to say, in a larger measure than when it binds other departments of
the government or any other official or entity, the Constitution imposes upon the Court the
sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its
provisions in appropriate cases with the proper parties and by striking down any act violative
thereof. Here, as in all other cases, We are resolved to discharge that duty.

During these times when most anyone feels very strongly the urgent need for constitutional
reforms, to the point of being convinced that meaningful change is the only alternative to a
violent revolution, this Court would be the last to put any obstruction or impediment to the work
of the Constitutional Convention. If there are respectable sectors opining that it has not been
called to supplant the existing Constitution in its entirety, since its enabling provision, Article XV,
from which the Convention itself draws life expressly speaks only of amendments which shall
form part of it, which opinion is not without persuasive force both in principle and in logic, the
seemingly prevailing view is that only the collective judgment of its members as to what is
warranted by the present condition of things, as they see it, can limit the extent of the
constitutional innovations the Convention may propose, hence the complete substitution of the
existing constitution is not beyond the ambit of the Convention's authority. Desirable as it may
be to resolve this grave divergence of views, the Court does not consider this case to be
properly the one in which it should discharge its constitutional duty in such premises. The
issues raised by petitioner, even those among them in which respondents and intervenors have
joined in an apparent wish to have them squarely passed upon by the Court do not necessarily
impose upon Us the imperative obligation to express Our views thereon. The Court considers it
to be of the utmost importance that the Convention should be untrammelled and unrestrained in
the performance of its constitutionally assigned mission in the manner and form it may conceive
best, and so the Court may step in to clear up doubts as to the boundaries set down by the
Constitution only when and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it
is a very familiar principle of constitutional law that constitutional questions are to be resolved by
the Supreme Court only when there is no alternative but to do it, and this rule is founded
precisely on the principle of respect that the Court must accord to the acts of the other co-
ordinate departments of the government, and certainly, the Constitutional Convention stands
almost in a unique footing in that regard.

In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
came into being by a call of a joint session of Congress pursuant to Section 1 of Article XV of
the Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not
related to its internal operation and the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its officers and members are all subject to
all the provisions of the existing Constitution. Now We hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article
XV. This must be so, because it is plain to Us that the framers of the Constitution took care that
the process of amending the same should not be undertaken with the same ease and facility in
changing an ordinary legislation. Constitution making is the most valued power, second to
none, of the people in a constitutional democracy such as the one our founding fathers have
chosen for this nation, and which we of the succeeding generations generally cherish. And
because the Constitution affects the lives, fortunes, future and every other conceivable aspect of
the lives of all the people within the country and those subject to its sovereignty, every degree of
care is taken in preparing and drafting it. A constitution worthy of the people for which it is
intended must not be prepared in haste without adequate deliberation and study. It is obvious
that correspondingly, any amendment of the Constitution is of no less importance than the
whole Constitution itself, and perforce must be conceived and prepared with as much care and
deliberation. From the very nature of things, the drafters of an original constitution, as already
observed earlier, operate without any limitations, restraints or inhibitions save those that they
may impose upon themselves. This is not necessarily true of subsequent conventions called to
amend the original constitution. Generally, the framers of the latter see to it that their handiwork
is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but
more importantly, because written constitutions are supposed to be designed so as to last for
some time, if not for ages, or for, at least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment. And when such limitations or
conditions are so incorporated in the original constitution, it does not lie in the delegates of any
subsequent convention to claim that they may ignore and disregard such conditions because
they are as powerful and omnipotent as their original counterparts.

Nothing of what is here said is to be understood as curtailing in any degree the number and
nature and the scope and extent of the amendments the Convention may deem proper to
propose. Nor does the Court propose to pass on the issue extensively and brilliantly discussed
by the parties as to whether or not the power or duty to call a plebiscite for the ratification of the
amendments to be proposed by the Convention is exclusively legislative and as such may be
exercised only by the Congress or whether the said power can be exercised concurrently by the
Convention with the Congress. In the view the Court takes of the present case, it does not
perceive absolute necessity to resolve that question, grave and important as it may be. Truth to
tell, the lack of unanimity or even of a consensus among the members of the Court in respect to
this issue creates the need for more study and deliberation, and as time is of the essence in this
case, for obvious reasons, November 8, 1971, the date set by the Convention for the plebiscite
it is calling, being nigh, We will refrain from making any pronouncement or expressing Our views
on this question until a more appropriate case comes to Us. After all, the basis of this decision
is as important and decisive as any can be.

The ultimate question, therefore, boils down to this: Is there any limitation or condition in
Section 1 of Article XV of the Constitution which is violated by the act of the Convention of
calling for a plebiscite on the sole amendment contained in Organic Resolution No. 1? The
Court holds that there is, and it is the condition and limitation that all the amendments to be
proposed by the same Convention must be submitted to the people in a single "election" or
plebiscite. It being indisputable that the amendment now proposed to be submitted to a
plebiscite is only the first amendment the Convention will propose We hold that the plebiscite
being called for the purpose of submitting the same for ratification of the people on November 8,
1971 is not authorized by Section 1 of Article XV of the Constitution, hence all acts of the
Convention and the respondent Comelec in that direction are null and void.

We have arrived at this conclusion for the following reasons:

1. The language of the constitutional provision aforequoted is sufficiently clear. It says

distinctly that either Congress sitting as a constituent assembly or a convention called
 for the purpose "may propose amendments to this Constitution," thus placing no limit as
to the number of amendments that Congress or the Convention may propose. The
same provision also as definitely provides that "such amendments shall be valid as part
of this Constitution when approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their ratification," thus leaving no room
for doubt as to how many "elections" or plebiscites may be held to ratify any amendment
or amendments proposed by the same constituent assembly of Congress or convention,
and the provision unequivocally says "an election" which means only one.

(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of
this provision. As already stated, amending the Constitution is as serious and important
an undertaking as constitution making itself. Indeed, any amendment of the Constitution
is as important as the whole of it, if only because the Constitution has to be an
integrated and harmonious instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and adequately formidable and reliable as
the succinct but comprehensive articulation of the rights, liberties, ideology, social ideals,
and national and nationalistic policies and aspirations of the people, on the other. It is
inconceivable how a constitution worthy of any country or people can have any part
which is out of tune with its other parts.

A constitution is the work of the people thru its drafters assembled by them for the
purpose. Once the original constitution is approved, the part that the people play in its
amendment becomes harder, for when a whole constitution is submitted to them, more or less
they can assume its harmony as an integrated whole, and they can either accept or reject it in
its entirety. At the very least, they can examine it before casting their vote and determine for the
selves from a study of the whole document the merits and demerits of all or any of its parts and
of the document as a whole. And so also, when an amendment is submitted to them that is to
form part of the existing constitution, in like fashion they can study with deliberation the
proposed amendment in relation to the whole existing constitution and or any of its parts and
thereby arrive at an intelligent judgment as to its acceptability.

This cannot happen in the case of the amendment in question. Prescinding already from the
fact that under Section 3 of the questioned resolution, it is evident that no fixed frame of
reference is provided the voter, as to what finally will be the concomitant qualifications that will
be required by the final draft of the constitution to be formulated by the Convention of a voter to
be able to enjoy the right of suffrage, there are other considerations which make it impossible to
vote intelligently on the proposed amendment, although it may already be observed that under
Section 3, if a voter would favor the reduction of the voting age to eighteen under conditions he
feels are needed under the circumstances, and he does not see those conditions in the ballot
nor is there any possible indication whether they will ever be or not, because Congress has
reserved those for future action, what kind of judgment can he render on the proposal?

But the situation actually before Us is even worse. No one knows what changes in the
fundamental principles of the constitution the Convention will be minded to approve. To be
more specific, we do not have any means of foreseeing whether the right to vote would be of
any significant value at all. Who can say whether or not later on the Convention may decide to
provide for varying types of voters for each level of the political units it may divide the country
into. The root of the difficulty, in other words, lies in that the Convention is precisely on the
verge of introducing substantial changes, if not radical ones, in almost every part and aspect of
the existing social and political order enshrined in the present Constitution. How can a voter in
the proposed plebiscite intelligently determine the effect of the reduction of the voting age upon
the different institutions which the Convention may establish and of which presently he is not
given any idea?

We are certain no one can deny that in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only sufficient
time but ample basis for an intelligent appraisal of the nature of the amendment per se as well
as its relation to the other parts of the Constitution with which it has to form a harmonious
whole. In the context of the present state of things, where the Convention has hardly started
considering the merits of hundreds, if not thousands, of proposals to amend the existing
Constitution, to present to the people any single proposal or a few of them cannot comply with
this requirement. We are of the opinion that the present Constitution does not contemplate in
Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame
of reference they can base their judgment on. We reject the rationalization that the present
Constitution is a possible frame of reference, for the simple reason that intervenors themselves
are stating that the sole purpose of the proposed amendment is to enable the eighteen year olds
to take part in the election for the ratification of the Constitution to be drafted by the
Convention. In brief, under the proposed plebiscite, there can be, in the language of Justice
Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper
submission".

III

The Court has no desire at all to hamper and hamstring the noble work of the Constitutional
Convention. Much less does the Court want to pass judgment on the merits of the proposal to
allow these eighteen years old to vote. But like the Convention, the Court has its own duties to
the people under the Constitution, which is to decide in appropriate cases with appropriate
parties whether or not the mandates of the fundamental law are being complied with. In the
best light God has given Us, We are of the conviction that in providing for the questioned
plebiscite before it has finished, and separately from, the whole draft of the constitution it has
been called to formulate, the Convention's Organic Resolution No. 1 and all subsequent acts of
the Convention implementing the same violate the condition in Section 1, Article XV that there
should only be one "election" or plebiscite for the ratification of all the amendments the
Convention may propose. We are not denying any right of the people to vote on the proposed
amendment; We are only holding that under Section 1, Article XV of the Constitution, the same
should be submitted to them not separately from but together with all the other amendments to
be proposed by this present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1
of the Constitutional Convention of 1971 and the implementing acts and resolutions of the
Convention, insofar as they provide for the holding of a plebiscite on November 8, 1971, as well
as the resolution of the respondent Comelec complying therewith (RR Resolution No. 695) are
hereby declared null and void. The respondents Comelec, Disbursing Officer, Chief Accountant
and Auditor of the Constitutional Convention are hereby enjoined from taking any action in
compliance with the said organic resolution. In view of the peculiar circumstances of this case,
the Court declares this decision immediately executory. No costs.