G.R. No.
166715 August 14, 2008 Finally, petitioners assail the creation of a congressional oversight committee
ABAKADA GURO PARTY LIST (formerly
AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED
VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and
EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA
This petition for prohibition1 seeks to prevent respondents from implementing
and enforcing Republic Act (RA) 93352(Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC). The law intends to encourage BIR and BOC officials and employees to
exceed their revenue targets by providing a system of rewards and sanctions
through the creation of a Rewards and Incentives Fund (Fund) and a Revenue
Performance Evaluation Board (Board).3 It covers all officials and employees
of the BIR and the BOC with at least six months of service, regardless of
employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of
their revenue targets for the year, as determined by the Development Budget
and Coordinating Committee (DBCC). Any incentive or reward is taken from
the fund and allocated to the BIR and the BOC in proportion to their
contribution in the excess collection of the targeted amount of tax revenue. 5
The Boards in the BIR and the BOC are composed of the Secretary of the
Department of Finance (DOF) or his/her Undersecretary, the Secretary of the
Department of Budget and Management (DBM) or his/her Undersecretary, the
Director General of the National Economic Development Authority (NEDA) or
his/her Deputy Director General, the Commissioners of the BIR and the BOC
or their Deputy Commissioners, two representatives from the rank-and-file
employees and a representative from the officials nominated by their recognized
organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the
allocation, distribution and release of the Fund; (2) set criteria and procedures
for removing from the service officials and employees whose revenue collection
falls short of the target; (3) terminate personnel in accordance with the criteria
adopted by the Board; (4) prescribe a system for performance evaluation; (5)
perform other functions, including the issuance of rules and regulations and (6)
submit an annual report to Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC)
were tasked to promulgate and issue the implementing rules and regulations of
RA 9335,8 to be approved by a Joint Congressional Oversight Committee
created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the
constitutionality of RA 9335, a tax reform legislation. They contend that, by
establishing a system of rewards and incentives, the law "transform[s] the
officials and employees of the BIR and the BOC into mercenaries and bounty
hunters" as they will do their best only in consideration of such rewards. Thus,
the system of rewards and incentives invites corruption and undermines the
constitutionally mandated duty of these officials and employees to serve the
people with utmost responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and
incentives only to officials and employees of the BIR and the BOC violates the
constitutional guarantee of equal protection. There is no valid basis for
classification or distinction as to why such a system should not apply to officials
and employees of all other government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix
revenue targets to the President as it lacks a sufficient standard on that matter.
While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials
may be dismissed from the service if their revenue collections fall short of the
target by at least 7.5%, the law does not, however, fix the revenue targets to be
achieved. Instead, the fixing of revenue targets has been delegated to the
President without sufficient standards. It will therefore be easy for the President
to fix an unrealistic and unattainable target in order to dismiss BIR or BOC
personnel.
on the ground that it violates the doctrine of separation of powers. While the
legislative function is deemed accomplished and completed upon the enactment
and approval of the law, the creation of the congressional oversight committee
permits legislative participation in the implementation and enforcement of the
law.
In their comment, respondents, through the Office of the Solicitor General,
question the petition for being premature as there is no actual case or
controversy yet. Petitioners have not asserted any right or claim that will
necessitate the exercise of this Court’s jurisdiction. Nevertheless, respondents
acknowledge that public policy requires the resolution of the constitutional
issues involved in this case. They assert that the allegation that the reward
system will breed mercenaries is mere speculation and does not suffice to
invalidate the law. Seen in conjunction with the declared objective of RA 9335,
the law validly classifies the BIR and the BOC because the functions they
perform are distinct from those of the other government agencies and
instrumentalities. Moreover, the law provides a sufficient standard that will
guide the executive in the implementation of its provisions. Lastly, the creation
of the congressional oversight committee under the law enhances, rather than
violates, separation of powers. It ensures the fulfillment of the legislative policy
and serves as a check to any over-accumulation of power on the part of the
executive and the implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the
Court finds that petitioners have failed to overcome the presumption of
constitutionality in favor of RA 9335, except as shall hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial adjudication.10 A closely related
requirement is ripeness, that is, the question must be ripe for adjudication. And
a constitutional question is ripe for adjudication when the governmental act
being challenged has a direct adverse effect on the individual challenging
it.11 Thus, to be ripe for judicial adjudication, the petitioner must show a
personal stake in the outcome of the case or an injury to himself that can be
redressed by a favorable decision of the Court.12
In this case, aside from the general claim that the dispute has ripened into a
judicial controversy by the mere enactment of the law even without any further
overt act,13 petitioners fail either to assert any specific and concrete legal claim
or to demonstrate any direct adverse effect of the law on them. They are unable
to show a personal stake in the outcome of this case or an injury to themselves.
On this account, their petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the
constitutional issues raised by petitioners. The grave nature of their allegations
tends to cast a cloud on the presumption of constitutionality in favor of the law.
And where an action of the legislative branch is alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and employees
must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency, act with
patriotism, and justice, and lead modest lives.
Public office is a public trust. It must be discharged by its holder not for his own
personal gain but for the benefit of the public for whom he holds it in trust. By
demanding accountability and service with responsibility, integrity, loyalty,
efficiency, patriotism and justice, all government officials and employees have
the duty to be responsive to the needs of the people they are called upon to
serve.
Public officers enjoy the presumption of regularity in the performance of their
duties. This presumption necessarily obtains in favor of BIR and BOC officials
and employees. RA 9335 operates on the basis thereof and reinforces it by
providing a system of rewards and sanctions for the purpose of encouraging the
officials and employees of the BIR and the BOC to exceed their revenue targets
and optimize their revenue-generation capability and collection.15
The presumption is disputable but proof to the contrary is required to rebut it.
It cannot be overturned by mere conjecture or denied in advance (as petitioners
would have the Court do) specially in this case where it is an underlying
principle to advance a declared public policy.
Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC
officials and employees into "bounty hunters and mercenaries" is not only
without any factual and legal basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality.
To justify its nullification, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and equivocal one.16 To invalidate RA 9335 based
on petitioners’ baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be
rewarded for exemplary and exceptional performance. A system of incentives
for exceeding the set expectations of a public office is not anathema to the
concept of public accountability. In fact, it recognizes and reinforces dedication
to duty, industry, efficiency and loyalty to public service of deserving
government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law which
awards to officers of the customs as well as other parties an amount not
exceeding one-half of the net proceeds of forfeitures in violation of the laws
against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme
Court said:
The offer of a portion of such penalties to the collectors is to
stimulate and reward their zeal and industry in detecting fraudulent
attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled to
a reward when, as a consequence of their zeal in the enforcement of tax and
customs laws, they exceed their revenue targets. In addition, RA 9335
establishes safeguards to ensure that the reward will not be claimed if it will be
either the fruit of "bounty hunting or mercenary activity" or the product of the
irregular performance of official duties. One of these precautionary measures is
embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR
and the BOC. – The officials, examiners, and employees of the
[BIR] and the [BOC] who violate this Act or who are guilty of
negligence, abuses or acts of malfeasance or misfeasance or fail to
exercise extraordinary diligence in the performance of their duties
shall be held liable for any loss or injury suffered by any business
establishment or taxpayer as a result of such violation, negligence,
abuse, malfeasance, misfeasance or failure to exercise extraordinary
diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the same
conditions and among persons similarly situated; it is equality among equals,
not similarity of treatment of persons who are classified based on substantial
differences in relation to the object to be accomplished. 19 When things or
persons are different in fact or circumstance, they may be treated in law
differently. In Victoriano v. Elizalde Rope Workers’ Union,20 this Court
declared:
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the [S]tate.
It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such,
but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does
not require that things which are different in fact be treated in
law as though they were the same. The equal protection clause
does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object
to which it is directed or by the territory within which it is to
operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is
that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real
differences, that it must be germane to the purpose of the law;
that it must not be limited to existing conditions only; and that
it must apply equally to each member of the class. This Court has
held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose
of enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. It is not necessary
that the classification be based on scientific or marked differences
of things or in their relation. Neither is it necessary that the
classification be made with mathematical nicety. Hence, legislative
classification may in many cases properly rest on narrow
distinctions, for the equal protection guaranty does not preclude the
legislature from recognizing degrees of evil or harm, and legislation
is addressed to evils as they may appear.21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that is, a
classification that has a reasonable foundation or rational basis and not
arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR and
the BOC.23 Since the subject of the law is the revenue- generation capability
and collection of the BIR and the BOC, the incentives and/or sanctions provided
in the law should logically pertain to the said agencies. Moreover, the law
concerns only the BIR and the BOC because they have the common distinct
primary function of generating revenues for the national government through
the collection of taxes, customs duties, fees and charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal
Revenue, which shall be headed by and subject to the supervision
and control of the Commissioner of Internal Revenue, who shall be
appointed by the President upon the recommendation of the
Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for
all revenues collected;
(2) Exercise duly delegated police powers for the proper
performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic
activities;
(4) Exercise supervision and control over its constituent and
subordinate units; and
(5) Perform such other functions as may be provided by law.24
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions:
 Sec. 23. The Bureau of Customs. – The Bureau of Customs which
shall be headed and subject to the management and control of the
Commissioner of Customs, who shall be appointed by the President
upon the recommendation of the Secretary[of the DOF] and
hereinafter referred to as Commissioner, shall have the following
functions:
(1) Collect custom duties, taxes and the corresponding fees,
charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and
customs laws;
(4) Prevent and suppress smuggling, pilferage and all other
economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the
clearance of vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in
all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.25
xxx xxx xxx (emphasis supplied)
Both the BIR and the BOC are bureaus under the DOF. They principally
perform the special function of being the instrumentalities through which the
State exercises one of its great inherent functions – taxation. Indubitably, such
substantial distinction is germane and intimately related to the purpose of the
law. Hence, the classification and treatment accorded to the BIR and the BOC
under RA 9335 fully satisfy the demands of equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power: (1) the
completeness test and (2) the sufficient standard test. A law is complete when
it sets forth therein the policy to be executed, carried out or implemented by the
delegate.26 It lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegate’s
authority and prevent the delegation from running riot. 27 To be sufficient, the
standard must specify the limits of the delegate’s authority, announce the
legislative policy and identify the conditions under which it is to be
implemented.28
RA 9335 adequately states the policy and standards to guide the President in
fixing revenue targets and the implementing agencies in carrying out the
provisions of the law. Section 2 spells out the policy of the law:
SEC. 2. Declaration of Policy. – It is the policy of the State to
optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC) by providing for a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund and a Revenue
Performance Evaluation Board in the above agencies for the purpose
of encouraging their officials and employees to exceed their revenue
targets.
Section 4 "canalized within banks that keep it from overflowing" 29 the
delegated power to the President to fix revenue targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives
Fund, hereinafter referred to as the Fund, is hereby created, to be
sourced from the collection of the BIR and the BOC in excess
of their respective revenue targets of the year, as determined by
the Development Budget and Coordinating Committee (DBCC),
in the following percentages:
Excess of Collection of the Excess the Revenue Percent (%) of the E
Targets
30% or below – 15%
More than 30% – 15% of the first 30
The Fund shall be deemed automatically appropriated the year
immediately following the year when the revenue collection target
was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue
collection expected of the BIR and the BOC for a given fiscal
year as stated in the Budget of Expenditures and Sources of
Financing (BESF) submitted by the President to Congress. The
BIR and the BOC shall submit to the DBCC the distribution of the
agencies’ revenue targets as allocated among its revenue districts in
the case of the BIR, and the collection districts in the case of the
BOC.
xxx xxx xxx (emphasis supplied)
Revenue targets are based on the original estimated revenue collection expected
respectively of the BIR and the BOC for a given fiscal year as approved by the
DBCC and stated in the BESF submitted by the President to Congress.30 Thus,
the determination of revenue targets does not rest solely on the President as it
also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and
identifies the conditions under which officials and employees whose revenue
collection falls short of the target by at least 7.5% may be removed from the
service:
SEC. 7. Powers and Functions of the Board. – The Board in the
agency shall have the following powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service
officials and employees whose revenue collection falls short of
the target by at least seven and a half percent (7.5%), with due
consideration of all relevant factors affecting the level of
collection as provided in the rules and regulations promulgated
under this Act, subject to civil service laws, rules and regulations
and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-
created, not exceeding two years in operation, as has no
historical record of collection performance that can be
used as basis for evaluation; and
2. Where the revenue or customs official or employee is
a recent transferee in the middle of the period under
consideration unless the transfer was due to
nonperformance of revenue targets or potential
nonperformance of revenue targets: Provided, however,
That when the district or area of responsibility covered
by revenue or customs officials or employees has
suffered from economic difficulties brought about by
natural calamities or force majeure or economic causes
as may be determined by the Board, termination shall be
considered only after careful and proper review by the
Board.
(c) To terminate personnel in accordance with the criteria adopted
in the preceding paragraph: Provided, That such decision shall be
immediately executory: Provided, further, That the application of
 the criteria for the separation of an official or employee from
service under this Act shall be without prejudice to the
application of other relevant laws on accountability of public
officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft
and Corrupt Practices Act;
xxx xxx xxx (emphasis supplied)
Clearly, RA 9335 in no way violates the security of tenure of officials and
employees of the BIR and the BOC. The guarantee of security of tenure only
means that an employee cannot be dismissed from the service for causes other
than those provided by law and only after due process is accorded the
employee.31 In the case of RA 9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of the target by at least 7.5%)
with due consideration of all relevant factors affecting the level of collection.
This standard is analogous to inefficiency and incompetence in the performance
of official duties, a ground for disciplinary action under civil service laws.32 The
action for removal is also subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process.
At any rate, this Court has recognized the following as sufficient standards:
"public interest," "justice and equity," "public convenience and welfare" and
"simplicity, economy and welfare."33 In this case, the declared policy of
optimization of the revenue-generation capability and collection of the BIR and
the BOC is infused with public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. – There is
hereby created a Joint Congressional Oversight Committee
composed of seven Members from the Senate and seven Members
from the House of Representatives. The Members from the Senate
shall be appointed by the Senate President, with at least two senators
representing the minority. The Members from the House of
Representatives shall be appointed by the Speaker with at least two
members representing the minority. After the Oversight Committee
will have approved the implementing rules and regulations (IRR) it
shall thereafter become functus officio and therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for the
purpose of approving the implementing rules and regulations (IRR) formulated
by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved
the said IRR. From then on, it became functus officio and ceased to exist. Hence,
the issue of its alleged encroachment on the executive function of implementing
and enforcing the law may be considered moot and academic.
This notwithstanding, this might be as good a time as any for the Court to
confront the issue of the constitutionality of the Joint Congressional Oversight
Committee created under RA 9335 (or other similar laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept
of congressional oversight in Macalintal v. Commission on Elections34 is
illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities
undertaken by Congress to enhance its understanding of and
influence over the implementation of legislation it has enacted.
Clearly, oversight concerns post-enactment measures
undertaken by Congress: (a) to monitor bureaucratic
compliance with program objectives, (b) to determine whether
agencies are properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of
legislative authority, and (d) to assess executive conformity with
the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of
legislative power itself and integral to the checks and balances
inherent in a democratic system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight power with
increased frequency to check the perceived "exponential
accumulation of power" by the executive branch. By the beginning
of the 20th century, Congress has delegated an enormous amount of
legislative authority to the executive branch and the administrative
agencies. Congress, thus, uses its oversight power to make sure that
the administrative agencies perform their functions within the
authority delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its
oversight powers may be divided into three categories,
namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and
continuity of attention to administrative operations. Its
primary purpose is to determine economy and efficiency
of the operation of government activities. In the exercise
of legislative scrutiny, Congress may request
information and report from the other branches of
government. It can give recommendations or pass
resolutions for consideration of the agency involved.
xxx xxx xxx
b. Congressional investigation
While congressional scrutiny is regarded as a passive
process of looking at the facts that are readily
available, congressional investigation involves a more
intense digging of facts. The power of Congress to
conduct investigation is recognized by the 1987
Constitution under section 21, Article VI,
xxx xxx xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises
its oversight power is thru legislative supervision. "Supervision"
connotes a continuing and informed awareness on the part of a
congressional committee regarding executive operations in a given
administrative area. While both congressional scrutiny and
investigation involve inquiry into past executive branch actions in
order to influence future executive branch
performance, congressional supervision allows Congress to
scrutinize the exercise of delegated law-making authority, and
permits Congress to retain part of that delegated authority.
Congress exercises supervision over the executive agencies through
its veto power. It typically utilizes veto provisions when granting the
President or an executive agency the power to promulgate
regulations with the force of law. These provisions require the
President or an agency to present the proposed regulations to
Congress, which retains a "right" to approve or disapprove any
regulation before it takes effect. Such legislative veto provisions
usually provide that a proposed regulation will become a law after
the expiration of a certain period of time, only if Congress does not
affirmatively disapprove of the regulation in the meantime. Less
frequently, the statute provides that a proposed regulation will
become law if Congress affirmatively approves it.
Supporters of legislative veto stress that it is necessary to maintain
the balance of power between the legislative and the executive
branches of government as it offers lawmakers a way to delegate
vast power to the executive branch or to independent agencies while
retaining the option to cancel particular exercise of such power
without having to pass new legislation or to repeal existing law.
They contend that this arrangement promotes democratic
accountability as it provides legislative check on the activities of
unelected administrative agencies. One proponent thus explains:
It is too late to debate the merits of this delegation policy:
the policy is too deeply embedded in our law and
practice. It suffices to say that the complexities of
modern government have often led Congress-whether by
actual or perceived necessity- to legislate by declaring
broad policy goals and general statutory standards,
leaving the choice of policy options to the discretion of
an executive officer. Congress articulates legislative
aims, but leaves their implementation to the judgment of
parties who may or may not have participated in or
agreed with the development of those aims.
Consequently, absent safeguards, in many instances the
reverse of our constitutional scheme could be effected:
Congress proposes, the Executive disposes. One
safeguard, of course, is the legislative power to enact
new legislation or to change existing law. But without
some means of overseeing post enactment activities of
the executive branch, Congress would be unable to
determine whether its policies have been implemented in
accordance with legislative intent and thus whether
legislative intervention is appropriate.
Its opponents, however, criticize the legislative veto as undue
encroachment upon the executive prerogatives. They urge
that any post-enactment measures undertaken by the legislative
branch should be limited to scrutiny and investigation; any
measure beyond that would undermine the separation of powers
guaranteed by the Constitution. They contend that legislative veto
constitutes an impermissible evasion of the President’s veto
authority and intrusion into the powers vested in the executive or
judicial branches of government. Proponents counter that legislative
veto enhances separation of powers as it prevents the executive
branch and independent agencies from accumulating too much
power. They submit that reporting requirements and congressional
committee investigations allow Congress to scrutinize only the
exercise of delegated law-making authority. They do not allow
Congress to review executive proposals before they take effect and
they do not afford the opportunity for ongoing and binding
expressions of congressional intent. In contrast, legislative veto
permits Congress to participate prospectively in the approval or
disapproval of "subordinate law" or those enacted by the executive
branch pursuant to a delegation of authority by Congress. They
further argue that legislative veto "is a necessary response by
Congress to the accretion of policy control by forces outside its
chambers." In an era of delegated authority, they point out that
legislative veto "is the most efficient means Congress has yet
devised to retain control over the evolution and implementation of
its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S.
Supreme Court resolved the validity of legislative veto
provisions. The case arose from the order of the immigration judge
suspending the deportation of Chadha pursuant to § 244(c)(1) of the
Immigration and Nationality Act. The United States House of
Representatives passed a resolution vetoing the suspension pursuant
to § 244(c)(2) authorizing either House of Congress, by resolution,
to invalidate the decision of the executive branch to allow a
particular deportable alien to remain in the United States. The
immigration judge reopened the deportation proceedings to
implement the House order and the alien was ordered deported. The
Board of Immigration Appeals dismissed the alien’s appeal, holding
that it had no power to declare unconstitutional an act of Congress.
The United States Court of Appeals for Ninth Circuit held that the
House was without constitutional authority to order the alien’s
deportation and that § 244(c)(2) violated the constitutional doctrine
on separation of powers.
On appeal, the U.S. Supreme Court declared § 244(c)(2)
unconstitutional. But the Court shied away from the issue of
separation of powers and instead held that the provision violates
the presentment clause and bicameralism. It held that the one-house
veto was essentially legislative in purpose and effect. As such, it is
subject to the procedures set out in Article I of the Constitution
requiring the passage by a majority of both Houses and presentment
to the President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in
memorandum decision, two lower court decisions invalidating the
legislative veto provisions in the Natural Gas Policy Act of 1978 and
the Federal Trade Commission Improvement Act of 1980.
Following this precedence, lower courts invalidated statutes
containing legislative veto provisions although some of these
provisions required the approval of both Houses of Congress and
thus met the bicameralism requirement of Article I. Indeed, some of
these veto provisions were not even exercised.35 (emphasis
supplied)
In Macalintal, given the concept and configuration of the power of
congressional oversight and considering the nature and powers of a
constitutional body like the Commission on Elections, the Court struck down
the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating
a Joint Congressional Committee. The committee was tasked not only to
monitor and evaluate the implementation of the said law but also to review,
revise, amend and approve the IRR promulgated by the Commission on
Elections. The Court held that these functions infringed on the constitutional
independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not
unconstitutional per se, meaning, it neither necessarily constitutes an
encroachment on the executive power to implement laws nor undermines the
constitutional separation of powers. Rather, it is integral to the checks and
balances inherent in a democratic system of government. It may in fact even
enhance the separation of powers as it prevents the over-accumulation of power
in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the
legislative sphere," the Constitution imposes two basic and related constraints
on Congress.37 It may not vest itself, any of its committees or its members with
either executive or judicial power.38 And, when it exercises its legislative
power, it must follow the "single, finely wrought and exhaustively considered,
procedures" specified under the Constitution,39 including the procedure for
enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this should be limited
to scrutiny and investigation. In particular, congressional oversight must be
confined to the following:
(1) scrutiny based primarily on Congress’ power of appropriation
and the budget hearings conducted in connection with it, its power
to ask heads of departments to appear before and be heard by either
of its Houses on any matter pertaining to their departments and its
power of confirmation40 and
(2) investigation and monitoring41 of the implementation of laws
pursuant to the power of Congress to conduct inquiries in aid of
legislation.42
Any action or step beyond that will undermine the separation of powers
guaranteed by the Constitution. Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an
administrative agency to present the proposed implementing rules and
regulations of a law to Congress which, by itself or through a committee formed
by it, retains a "right" or "power" to approve or disapprove such regulations
before they take effect. As such, a legislative veto in the form of a congressional
oversight committee is in the form of an inward-turning delegation designed to
attach a congressional leash (other than through scrutiny and investigation) to
an agency to which Congress has by law initially delegated broad powers. 43It
radically changes the design or structure of the Constitution’s diagram of power
as it entrusts to Congress a direct role in enforcing, applying or implementing
its own laws.44
Congress has two options when enacting legislation to define national policy
within the broad horizons of its legislative competence.45 It can itself formulate
the details or it can assign to the executive branch the responsibility for making
necessary managerial decisions in conformity with those standards. 46 In the
latter case, the law must be complete in all its essential terms and conditions
when it leaves the hands of the legislature.47 Thus, what is left for the executive
branch or the concerned administrative agency when it formulates rules and
regulations implementing the law is to fill up details (supplementary rule-
making) or ascertain facts necessary to bring the law into actual operation
(contingent rule-making).48
Administrative regulations enacted by administrative agencies to implement
and interpret the law which they are entrusted to enforce have the force of law
and are entitled to respect.49 Such rules and regulations partake of the nature of
a statute50and are just as binding as if they have been written in the statute itself.
As such, they have the force and effect of law and enjoy the presumption of
constitutionality and legality until they are set aside with finality in an
appropriate case by a competent court.51 Congress, in the guise of assuming the
role of an overseer, may not pass upon their legality by subjecting them to its
stamp of approval without disturbing the calculated balance of powers
established by the Constitution. In exercising discretion to approve or
disapprove the IRR based on a determination of whether or not they conformed
with the provisions of RA 9335, Congress arrogated judicial power unto itself,
a power exclusively vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected to
approval by Congress as a condition for their effectivity violates the cardinal
constitutional principles of bicameralism and the rule on presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provision on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws)53 is
vested in Congress which consists of two chambers, the Senate and the House
of Representatives. A valid exercise of legislative power requires the act of both
chambers. Corrollarily, it can be exercised neither solely by one of the two
chambers nor by a committee of either or both chambers. Thus, assuming the
validity of a legislative veto, both a single-chamber legislative veto and a
congressional committee legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it
becomes a law, be presented to the President. If he approves the
same, he shall sign it, otherwise, he shall veto it and return the same
with his objections to the House where it originated, which shall
enter the objections at large in its Journal and proceed to reconsider
it. If, after such reconsideration, two-thirds of all the Members of
such House shall agree to pass the bill, it shall be sent, together with
the objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the Members of
that House, it shall become a law. In all such cases, the votes of each
House shall be determined by yeas or nays, and the names of the
members voting for or against shall be entered in its Journal. The
President shall communicate his veto of any bill to the House where
it originated within thirty days after the date of receipt thereof;
otherwise, it shall become a law as if he had signed it. (emphasis
supplied)
Every bill passed by Congress must be presented to the President for approval
or veto. In the absence of presentment to the President, no bill passed by
Congress can become a law. In this sense, law-making under the Constitution
is a joint act of the Legislature and of the Executive. Assuming that legislative
veto is a valid legislative act with the force of law, it cannot take effect without
such presentment even if approved by both chambers of Congress.
In sum, two steps are required before a bill becomes a law. First, it must be
approved by both Houses of Congress.54Second, it must be presented to and
approved by the President.55 As summarized by Justice Isagani Cruz56 and Fr.
Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of
bills:
A bill is introduced by any member of the House of Representatives
or the Senate except for some measures that must originate only in
the former chamber.
The first reading involves only a reading of the number and title of
the measure and its referral by the Senate President or the Speaker
to the proper committee for study.
The bill may be "killed" in the committee or it may be recommended
for approval, with or without amendments, sometimes after public
hearings are first held thereon. If there are other bills of the same
nature or purpose, they may all be consolidated into one bill under
common authorship or as a committee bill.
Once reported out, the bill shall be calendared for second reading. It
is at this stage that the bill is read in its entirety, scrutinized, debated
upon and amended when desired. The second reading is the most
important stage in the passage of a bill.
The bill as approved on second reading is printed in its final form
and copies thereof are distributed at least three days before the third
reading. On the third reading, the members merely register their
votes and explain them if they are allowed by the rules. No further
debate is allowed.
Once the bill passes third reading, it is sent to the other chamber,
where it will also undergo the three readings. If there are differences
between the versions approved by the two chambers, a conference
committee58 representing both Houses will draft a compromise
measure that if ratified by the Senate and the House of
Representatives will then be submitted to the President for his
consideration.
The bill is enrolled when printed as finally approved by the
Congress, thereafter authenticated with the signatures of the Senate
President, the Speaker, and the Secretaries of their respective
chambers…59
The President’s role in law-making.
The final step is submission to the President for approval. Once
approved, it takes effect as law after the required publication. 60
Where Congress delegates the formulation of rules to implement the law it has
enacted pursuant to sufficient standards established in the said law, the law must
be complete in all its essential terms and conditions when it leaves the hands of
the legislature. And it may be deemed to have left the hands of the legislature
when it becomes effective because it is only upon effectivity of the statute that
legal rights and obligations become available to those entitled by the language
of the statute. Subject to the indispensable requisite of publication under the due
process clause,61 the determination as to when a law takes effect is wholly the
prerogative of Congress.62 As such, it is only upon its effectivity that a law may
be executed and the executive branch acquires the duties and powers to execute
the said law. Before that point, the role of the executive branch, particularly of
the President, is limited to approving or vetoing the law.63
From the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of separation
of powers and is thus unconstitutional. Under this principle, a provision that
requires Congress or its members to approve the implementing rules of a law
after it has already taken effect shall be unconstitutional, as is a provision that
allows Congress or its members to overturn any directive or ruling made by the
members of the executive branch charged with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck down as
unconstitutional. While there may be similar provisions of other laws that may
be invalidated for failure to pass this standard, the Court refrains from
invalidating them wholesale but will do so at the proper time when an
appropriate case assailing those provisions is brought before us.64

The next question to be resolved is: what is the effect of the unconstitutionality
of Section 12 of RA 9335 on the other provisions of the law? Will it render the
entire law unconstitutional? No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. – If any provision of this Act is

declared invalid by a competent court, the remainder of this Act or
any provision not affected by such declaration of invalidity shall
remain in force and effect.

In Tatad v. Secretary of the Department of Energy,65 the Court laid down the
following rules:

The general rule is that where part of a statute is void as repugnant

to the Constitution, while another part is valid, the valid portion, if
separable from the invalid, may stand and be enforced. The presence
of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the
statute. To justify this result, the valid portion must be so far
independent of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed that it
could not constitutionally enact the other. Enough must remain to
make a complete, intelligible and valid statute, which carries out the
legislative intent. x x x

The exception to the general rule is that when the parts of a statute
are so mutually dependent and connected, as conditions,
considerations, inducements, or compensations for each other, as to
warrant a belief that the legislature intended them as a whole, the
nullity of one part will vitiate the rest. In making the parts of the
statute dependent, conditional, or connected with one another, the
legislature intended the statute to be carried out as a whole and
would not have enacted it if one part is void, in which case if some
parts are unconstitutional, all the other provisions thus dependent,
conditional, or connected must fall with them.

The separability clause of RA 9335 reveals the intention of the legislature to

isolate and detach any invalid provision from the other provisions so that the
latter may continue in force and effect. The valid portions can stand
independently of the invalid section. Without Section 12, the remaining
provisions still constitute a complete, intelligible and valid law which carries
out the legislative intent to optimize the revenue-generation capability and
collection of the BIR and the BOC by providing for a system of rewards and
sanctions through the Rewards and Incentives Fund and a Revenue Performance
Evaluation Board.

To be effective, administrative rules and regulations must be published in full

if their purpose is to enforce or implement existing law pursuant to a valid
delegation. The IRR of RA 9335 were published on May 30, 2006 in two
newspapers of general circulation66 and became effective 15 days
thereafter.67 Until and unless the contrary is shown, the IRR are presumed valid
and effective even without the approval of the Joint Congressional Oversight
Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12

of RA 9335 creating a Joint Congressional Oversight Committee to approve the
implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The
constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant
to Section 13 of RA 9335, the rest of the provisions remain in force and effect.
G.R. No. 112283 August 30, 1994
EVELYN ABEJA, petitioner,
vs.
JUDGE FEDERICO TAÑADA,
sed on the official returns of the Municipal Board of Canvassers for the said
municipality, private respondent was credited with 6,215 votes as against
petitioner's 5,951 votes.
Soon after the proclamation of private respondent, petitioner filed an election
contest, docketed as Election Case No. 92-1, entitled "Evelyn Abeja vs. Rosauro
Radovan" with the Regional Trial Court of Lucena City. The protest covered
twenty-two (22) precincts.
On June 5, 1992, private respondent filed an Answer with a Counter-Protest of
the results in thirty-six (36) precincts.
During the pre-trial, private respondent's counsel filed a motion praying that the
36 counter-protested precincts be revised only if it is shown after completion of
the revision of the 22 protested precincts that petitioner leads by a margin of at
least one (1) vote. The trial court declared discussion on the matter to be
premature (TSN, July 6, 1992, pp. 8-12; Rollo, p. 148). The revision of the
ballots covering 22 protested precincts was completed in September 1992.
Thereafter, petitioner urged private respondent to commence the revision of the
36 counter-protested precincts by praying the necessary fees for the purpose.
Private respondent refused.
In view thereof, petitioner moved that the counter-protest of private respondent
be considered withdrawn. Private respondent opposed the motion and reiterated
that the ballots of the 36 counter-protested precincts should only be revised and
recounted if it is shown after the revision of the contested ballots of the 22
precincts that petitioner leads by at least one (1) vote.
Petitioner filed another manifestation and motion on September 29, 1992,
praying that the counter-protest be considered withdrawn from the time the final
report of the Board of Revisors is submitted to the court for approval.
The then presiding Judge, Hon. Ludovico Lopez, did not rule on the
aforementioned motions but, according to petitioner, he (Judge Lopez) declared
during a hearing in October 1992 that once a ruling is made on the contested
ballots of the 22 protested precincts, he will not allow further revision of ballots.
By April 1993, all pending incidents including the report of the Board of
Revisors as well as petitioner's formal offer of evidence were considered
submitted for resolution without private respondent having caused the revision
of the ballots in the 36 counter-protested precincts.
In an order dated April 15, 1993, Presiding Judge Lopez ruled that
"(p)rotestant's offer of evidence as well as the protestee's objections thereto are
now submitted for the Court's resolution" (Rollo, p. 61).
On June 13, 1993, private respondent Rosauro Radovan died. He was
substituted by Vice-Mayor Conrado de Rama and, surprisingly, by his surviving
spouse, Ediltrudes Radovan.
On July 13, 1993, private respondents de Rama and Radovan filed a
Manifestation seeking a prompt resolution of all pending incidents.
On August 12, 1993, the trial court issued an order stating that "(c)ounsels for
both parties having signified to this Court that they are submitting the motion
to resolve without further argument. This motion being a motion to resolve, the
Court hereby informs the parties that pending matters submitted for resolution
will be duly resolved on or before August 20, 1993" (Rollo, p. 143).
Shortly thereafter, Judge Lopez was reassigned to the Regional Trial Court of
Kalookan City. Before transferring to his new post, however, Judge Lopez
issued an order dated August 18, 1993 which contained his ruling in each of the
contested ballots in the 22 contested precincts and the reasons therefor. In the
said order, Judge Lopez emphasized that "in ruling on the various objections
lodged by both parties during the revision proceedings, the originals of the
contested ballots in the ballot boxes were subjected to careful scrutiny in the
seclusion of the Court's chamber" (Rollo, p. 161). Nonetheless, the ruling did
not contain a summation of the exact number of votes to be credited to each of
the parties, or a declaration of the winner in the election protest for that matter.
On August 27, 1993, petitioner filed a "Motion to Determine Votes, To
Proclaim Winner and to Allow Assumption of Office" considering that based
on her own computation of revised ballots ruled upon by Judge Lopez, she led
private respondent by a margin of 281 votes.
Private respondents filed a Motion to Correct the order dated August 18, 1993,
issued by Judge Lopez as well as oppositions to the motion of petitioner.
Respondents claim that petitioner's "Motion to Proclaim Winner" is premature
since the 36 counter-protested precincts are yet to be revised.
In an order dated September 21, 1993, herein respondent Judge Federico
Tañada, who succeeded Judge Lopez, denied the "Motion to Determine Votes,
to Proclaim Winner and to Allow Assumption of Office" filed by petitioner.
Respondent judge ruled that petitioner's motion was indeed premature on the
ground that until after the 36 counter-protested precincts have been revised, the
court could not render a valid decision.
On October 18, 1993, respondent judge issued another order denying
petitioner's motion for reconsideration and directed the revision committee to
conduct a revision of the results of the 36 counter-protested precincts scheduled
on November 10, 1993.
These orders are the subject of this petition filed on November 8, 1993.
As prayed for by petitioner, the Court issued a temporary restraining order on
November 17, 1993, enjoining respondents from continuing with the revision
of the ballots in the 36 counter-protested precincts. It appears, however, that the
restraining order was served on November 19, 1993, after the revision
committee had completed revising 11 ballot boxes.
The sole issue to be resolved in this case is whether or not private respondents
should be allowed to proceed with the revision of the 36 precincts subject of the
counter-protest.
It is clear from the records that Judge Lopez failed to issue a definitive ruling
on this specific procedural issue raised by the parties, which this Court must
now provide.
Although petitioner claims that Judge Lopez issued a warning to private
respondent to the effect that he (private respondent) shall not be allowed to
cause the revision of the counter-protested precincts after the revision of the
protested precincts is completed and ruled upon, she fails to cite a specific oral
or written order of Judge Lopez containing such warning or at least the date and
circumstances of the hearing in which the said warning was issued.
Consequently, the alleged warning issued by Judge Lopez is unsubstantiated
and must therefore be disregarded.
Coming now to the merits of the case, petitioner contends that the revision of
the counter-protested precincts filed by private respondent has already been
abandoned by his failure to pursue the same, right after the revision of the 22
protested precincts. Petitioner also argue that the case was deemed submitted
for decision upon submission by the Board of Revisors of the Report on the
Revision of the 22 protested precincts.
In the instant case, petitioner, as protestant below, completed the revision of
ballots in the 22 protested precincts in September 1992 and her presentation of
evidence in April 1993. Likewise, the Board of Revisors had submitted its
report and the trial court issued a ruling dated August 18, 1993 on the said
revision. Given this state of the proceedings, the question to be resolved is
whether respondent may still be allowed to commence the revision of the
counter-protested precincts or should he be deemed to have waived his right to
present his own evidence, i.e., the revision of the counter-protested precincts
after stubbornly refusing to do so.
Petitioner argues that while the sequence in the presentation of evidence may
be altered for special reasons, the applicable rules of procedure do not allow
presentation of evidence after the court has already rendered a decision. Clearly,
petitioner considers the August 18, 1993 Order of Judge Lopez to be the
"decision" on the case although the order did not contain a summation of the
total votes credited to each of the parties or a declaration of the winner in the
election protest.
Petitioner objects to the stand taken by private respondent on the procedure to
be followed for being "unprocedural" in the sense that a decision rendered on
the election protest would be subject to another decision for the counter-protest.
It is further argued that since the 36 counter-protested precincts were already
under the jurisdiction of the trial court, the same should have been revised
unconditionally and should not have been subjected to the whim and caprice of
the private respondent.
The petition is impressed with merit.
Considering that this petition involves an election protest heard by a regional
trial court, the Comelec Rules of Procedure are controlling.
In view of the fact that the subject election contest was filed on May 26, 1992,
Section 2, Rule 17 and Section 11, Rule 35 of the aforementioned Comelec rules
are applicable. Rule 17 treats of Hearings whereas Rule 35 treats of Election
Contests Before Courts of General Jurisdiction. *
Section 2, Rule 17 provides, in part:
Sec. 2. Order of hearing. — Unless the Commission or
the Division, as the case may be, for special reasons,
directs otherwise, the order of hearing shall be as
follows:
(a) The petitioner or protestant shall present evidence on
his part;
(b) The protestant-in-intervention, if any, shall then offer
evidence in support of his defense or counter-protest, if
any;
(c) The respondent or protestee shall then offer evidence
in support of his defense or counter-protest, if any;
It thus appears from the foregoing rule that the petitioner/protestant and the
respondent/protestee shall present their evidence upon their original case in
succession in accordance with the order or sequence provided therein.
On the other hand, Section 11, Rule 35 provides:
Sec. 11. Presentation and reception of evidence. — The
presentation and reception of evidence in election
contests shall be made in accordance with Section 2 of
Rule 17 of these Rules, but the same shall be completed
within thirty (30) days from the date of the
commencement thereof.
The record shows that the revision of ballots in the 22 protested precincts was
completed sometime in September 1992. Judge Lopez issued a ruling on the
said revision almost a year later, or on August 18, 1993.
In the interim, private respondent failed to commence the revision of the ballots
in the counter-protested precincts, stubbornly maintaining the position that said
precincts should be revised only if it is shown after the revision that petitioner
leads private respondent by at least one (1) vote. No law or rule authorizes such
a procedure. Consequently, private respondent must be deemed to have waived
or abandoned his counter-protest.
The applicable Comelec rules provide for the presentation of evidence by the
parties in succession in the order or sequence provided under Sec. 2, rule 17
(Comelec Rules) which must be submitted within a reasonable time, if not
immediately after the revision of the precincts covered by the protest proper.
By insisting that the counter-protested precincts should be revised only if it is
shown after the revision of the protested precincts that petitioner, his opponent,
leads by at least one (1) vote, private respondent is adopting a self-serving rule
without legal sanction calculated to unduly prolong the litigation.
Furthermore, it is readily apparent from the provisions of the applicable
Comelec Rules that the court shall render its decision after both parties shall
have presented their respective evidence. Nowhere in the said provisions is it
indicated that presentation of evidence by the protestee may continue after the
court has ruled on the evidence of the protestant and determine the number of
votes obtained by the latter. Otherwise, it would be possible for the protestee to
prolong the protest and render it moot by expiration of the term of office
contested.
There is likewise merit to petitioner's claim that private respondent is guilty of
laches, which, in a general sense, is a failure or neglect, for an unreasonable and
unexplained length of time, to do that which, by exercising due diligence could
or should have been done earlier; it is negligence or omission to assert a right
within a reasonable length of time, warranting a presumption that a party
entitled to assert it either has abandoned it or declined to assert it (Republic v.
Caballero, 79 SCRA 177 [1977]).
In the case at bar, private respondent unreasonably failed to cause the revision
of the counter-protested precincts despite being afforded ample time to do so
and must be deemed to have abandoned it. However, it is not clear from the
record of the case whether Judge Lopez issued an order requiring private
respondent to pay the required cash deposit for the revision of the ballots in the
counter-protested precincts in accordance with Section 10, (b), Rule 35 of the
Comelec Rules of Procedure, otherwise, the counter-protest shall be
automatically dismissed as provided in Sec. 10[c] thereof:
Sec. 10. Cash Deposit. —
xxx xxx xxx
(b) In case revision of ballots is required, there shall be
deposited, within ten days after being required by the
Court, the sum of three hundred pesos (P300.00) for
every ballot box for the compensation of revisors at the
rate of P100.00 each.
(c) Failure to make the cash deposits herein provided
within the prescribed time limit shall result in the
automatic dismissal of the protest, counter-protest or
protest-in-intervention, as the case may be.
In the Comment of private respondent's widow, it is alleged that "the record of
the case definitely show (sic) that Judge Lopez himself categorically ruled that
the counter-protest was filed on time and the necessary cash deposit submitted
by private respondent pursuant to law" (Rollo, p. 60). However, private
respondent fails to cite that part of the record in which the said ruling may be
found.
Private respondent attributes the delay in the resolution of the case to Judge
Lopez for failing to rule on the issues raised by the parties. However, it cannot
be denied that private respondent has maintained the same position regarding
the revision of his counter-protest from the very beginning, as early as the pre-
trial of the case, and all throughout the course of the proceedings. Although
Judge Lopez' inaction may have contributed to the delay of the case, private
respondent Radovan must bear the grave consequences of his stubborn and
unfounded refusal to proceed with the revision of the counter-protested
precincts. Instead of conducting the revision of his counter-protested precincts,
private respondent hedged and stalled on the resolution of the case which is a
purely dilatory technique.
Private respondent's argument is that the procedure advocated by him would
actually save time. Nothing that the resolution of petitioner's protest took almost
a year, he contends that about the same length of time would be saved in the
event a revision of the counter-protested precincts would be declared
unnecessary. Suffice it to state that the procedure proposed by private
respondent is not sanctioned by the Rules and need not delay us any longer that
it already has in the disposition of this case.
Upon the foregoing, we hold that the respondent judge erred in rendering the
assailed orders denying petitioner's "Motion to Determine Votes, to Declare
Winner and to Allow Assumption of Office" and directing the revision of the
counter-protested precincts at this late hour, so to speak. Under the
circumstances and for reasons discussed above, the order of Judge Lopez dated
August 18, 1993 which resolved the party litigants' objections to the revised
ballots may very well be the subject of a valid decision to resolve the instant
electoral protest based on the revised ballots of the 22 protested precincts.

In the event petitioner is declared the winning candidate, she should, upon
proper motion, be allowed to immediately assume the contested office. We say
this because in their pleadings, petitioner and private respondent have amply
discussed their respective arguments in the applicability of Garcia v. de Jesus
and the accompanying case of Tobon Uy v. Comelec (206 SCRA 779 [1992])
and the possibility is not remote that private respondent may once again resort
to dilatory tactics.

Section 2, Rule 39 of the Rules of Court allows execution pending appeal in

election cases upon good reasons (Garcia v. de Jesus, supra; in relation to Rule
43, Sec. 1, COMELEC Rules of Procedure) which we find obtaining in the case
before us.

Gahol v. Riodique (64 SCRA 494 [1975]) is even more emphatic:

Why should the proclamation by the board of canvassers

suffice as a basis of the right to assume office, subject to
future contingencies attendant to a protest, and not the
decision of a court of justice? Indeed, when it is
considered that the board of canvassers is composed of
person who are less technically prepared to make an
accurate appreciation of the ballots, apart from their
being more apt to yield to external consideration, and
that the board must act summarily, practically racing
against time, while on the other hand, the judge has the
benefit of all the evidence the parties can offer and of
admittedly better technical preparation and background,
apart from his being allowed ample time for
conscientious study and mature deliberation before
rendering judgment, one cannot but perceive the wisdom
of allowing the immediate execution of decisions in
election cases adverse to the protestees, notwithstanding
the perfection and pendency of appeals therefrom, as
long as there are, in the sound discretion of the court,
good reasons therefor. (cited in Garcia v. de
Jesus, supra)

We also find as erroneous the substitution of the deceased Rosauro Radovan's

widow, Ediltrudes Radovan, on the ground that private respondent had a
counter-claim for damages. "Public office is personal to the incumbent and is
not a property which passes to his heirs" (Santos vs. Secretary of Labor, 22
SCRA 848 [1968]; De la Victoria vs. Comelec, 199 SCRA 561 [1991]). The
heirs may no longer prosecute the deceased protestee's counter-claim for
damages against the protestant for that was extinguished when death terminated
his right to occupy the contested office (Dela Victoria, supra).

WHEREFORE, the petition is hereby GRANTED. The assailed orders of

respondent judge as well as the results of the revision of the 11 ballot boxes
subject of the counter-protest are SET ASIDE. Respondent judge is further
ordered to DISMISS the counter-protest in Election Case No. 92-1 and to
resolve the "Motion to Determine Votes, to Proclaim Winner and to Allow
Assumption of Office" filed by petitioner conformably with this decision within
a non-extendible period of fifteen (15) days from receipt hereof. This decision
is immediately executory. Costs against respondent Ediltrudes Radovan.
JIMMY S. DE CASTRO, petitioner,
vs.
THE COMMISSION ON ELECTIONS and AMANDO A.
MEDRANO, respondent
Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May
8, 1995 elections.
In the same elections, private respondent was proclaimed Vice-Mayor of the
same municipality.
On May 19, 1995, petitioner's rival candidate, the late Nicolas M. Jamilla, filed
an election protest1 before the Regional Trial Court of Pinamalayan, Oriental
Mindoro.2
During the pendency of said contest, Jamilla died. 3 Four days after such death
or on December 19, 1995, the trial court dismissed the election protest ruling as
it did that "[a]s this case is personal, the death of the protestant extinguishes the
case itself. The issue or issues brought out in this protest have become moot and
academic".4
On January 9, 1995, private respondent learned about the dismissal of the
protest from one Atty. Gaudencio S. Sadicon, who, as the late Jamilla's counsel,
was the one who informed the trial court of his client's demise.
On January 15, 1996, private respondent filed his Omnibus Petition/Motion
(For Intervention and/or Substitution with Motion for
Reconsideration).5 Opposition thereto was filed by petitioner on January 30,
1996.6
In an Order dated February 14, 1996,7 the trial court denied private respondent's
Omnibus Petition/Motion and stubbornly held that an election protest being
personal to the protestant, is ipso facto terminated by the latter's death.
Unable to agree with the trial court's dismissal of the election protest., private
respondent filed a petition for certiorariand mandamus before the Commission
on Elections (COMELEC); private respondent mainly assailed the trial court
orders as having been issued with grave abuse of discretion.
COMELEC granted the petition for certiorari and mandamus.8 It ruled that an
election contest involves both the private interests of the rival candidates and
the public interest in the final determination of the real choice of the electorate,
and for this reason, an election contest necessarily survives the death of the
protestant or the protestee.
We agree.
It is true that a public office is personal to the public officer and is not a property
transmissible to his heirs upon death.9 Thus, applying the doctrine of actio
personalis moritur cum persona, upon the death of the incumbent, no heir of
his may be allowed to continue holding his office in his place.
But while the right to a public office is personal and exclusive to the public
officer, an election protest is not purely personal and exclusive to the protestant
or to the protestee such that the death of either would oust the court of all
authority to continue the protest proceedings.
An election contest, after all, involves not merely conflicting private aspirations
but is imbued with paramount public interests. As we have held in the case
of Vda. de De Mesa v. Mencias: 10
. . . It is axiomatic that an election contest, involving as
it does not only the adjudication and settlement of the
private interests of the rival candidates but also the
paramount need of dispelling once and for all the
uncertainty that beclouds the real choice of the electorate
with respect to who shall discharge the prerogatives of
the offices within their gift, is a proceeding imbued with
public interest which raises it onto a plane over and
above ordinary civil actions. For this reason, broad
perspectives of public policy impose upon courts the
imperative duty to ascertain by all means within their
command who is the real candidate elected in as
expeditious a manner as possible, without being fettered
by technicalities and procedural barriers to the end that
the will of the people may not be frustrated (Ibasco vs.
Ilao, et al., G.R. L-17512, December 29, 1960; Reforma
vs. De Luna, G.R. L-13242, July 31, 1958). So
inextricably intertwined are the interests of the
contestants and those of the public that there can be no
gainsaying the logic of the proposition that even the
voluntary cessation in office of the protestee not only
does not ipso facto divest him of the character of an
adversary in the contest inasmuch as he retains a party
interest to keep his political opponent out of the office
and maintain therein his successor, but also does not in
any manner impair or detract from the jurisdiction of the
court to pursue the proceeding to its final conclusion (De
Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo
vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba,
G.R. L-13206).
Upon the same principle, the death of the protestee De
Mesa did not abate the proceedings in the election protest
filed against him, and it may stated as a rule that an
election contest survives and must be prosecuted to final
judgment despite the death of the protestee. 11
The death of the protestant, as in this case, neither constitutes a ground for the
dismissal of the contest nor ousts the trial court of its jurisdiction to decide the
election contest. Apropos is the following pronouncement of this court in the
case of Lomugdang v. Javier: 12
Determination of what candidate has been in fact elected
is a matter clothed with public interest, wherefore, public
policy demands that an election contest, duly
commenced, be not abated by the death of the contestant.
We have squarely so rule in Sibulo Vda. de Mesa
vs. Judge Mencias, G.R. No. L-24583, October 29, 1966,
in the same spirit that led this Court to hold that the
ineligibility of the protestant is not a defense (Caesar vs.
Garrido, 53 Phil. 57), and that the protestee's cessation in
office is not a ground for the dismissal of the contest nor
detract the Courts jurisdiction to decide the case
(Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs.
Hernandez, 62 Phil. 584). 13
The asseveration of petitioner that private respondent is not a real party in
interest entitled to be substituted in the election protest in place of the late
Jamilla, is utterly without legal basis. Categorical was our ruling in Vda. de
Mesaand Lomugdang that:
. . . the Vice Mayor elect has the status of a real party in
interest in the continuation of the proceedings and is
entitled to intervene therein. For if the protest succeeds
and the Frotestee is unseated, the Vice-Mayor succeeds
to the office of Mayor that becomes vacant if the one
duly elected can not assume the post. 14
To finally dispose of this case, we rule that the filing by private respondent of
his Omnibus Petition/Motion on January 15, 1996, well within a period of thirty
days from December 19, 1995 when Jamilla's counsel informed the trial court
of Jamilla's death, was in compliance with Section 17, Rule 3 of the Revised
Rules of Court. Since the Rules of Court, though not generally applicable to
election cases, may however be applied by analogy or in a suppletory
character, 15 private respondent was correct to rely thereon.
The above jurisprudence is not ancient; in fact these legal moorings have been
recently reiterated in the 1991 case of De la Victoria vs. COMELEC. 16 If only
petitioner's diligence in updating himself with case law is as spirited as his
persistence in pursuing his legal asseverations up to the highest court of the
land, no doubt further derailment of the election protest proceedings could have
been avoided.
WHEREFORE, premises considered, the instant petition for certiorari is hereby
DISMISSED
G.R. No. L-23226 March 4, 1925
VICENTE SEGOVIA, petitioner-appellee,
vs.
PEDRO NOEL, respondent-appellant.
The question to be decided on this appeal is whether that portion of Act No.
3107 which provides, that justices of the peace and auxiliary justices of the
peace shall be appointed to serve until they have reached the age of sixty- five
years, should be given retroactive or prospective effect.
Vicente Segovia was appointed justice of the peace of Dumanjug, Cebu, on
January 21, 1907. He continuously occupied this position until having passed
sixty-five mile- stones, he was ordered by the Secretary of Justice on July 1,
1924, to vacate the office. Since that date, Pedro Noel, the auxiliary justice of
the peace has acted as justice of the peace for the municipality of Dumanjug.
Mr. Segovia being desirous of avoiding a public scandal and of opposing
physical resistance to the occupancy of the office of justice of the peace by the
auxiliary justice of the peace, instituted friendly quo warranto proceedings in
the Court of First Instance of Cebu to inquire into the right of Pedro Noel to
occupy the office of justice of the peace, to oust the latter therefrom, and to
procure reinstatement as justice of the peace of Dumanjug. To this complaint,
Pedro Noel interposed a demurrer on the ground that it did not allege facts
sufficient to constitute a cause of action, because Act No. 3107 was
constitutional and because Mr. Segovia being sixty-five years old had
automatically ceased to be justice of the peace. On the issue thus framed and on
stipulated facts, judgment was rendered by Honorable Adolph Wislizenus,
Judge of First Instance, overruling the demurrer, and in favor of petitioner and
against respondent.
Proceeding by way of elimination so as to resolve the case into its simplest
factors, it will first be noted that the petitioner abandons the untenable position,
assumed by him in one portion of his complaint, to the effect that section 1 of
Act No. 3107 is unconstitutional in that it impairs the contractual right of the
petitioner to an office. It is a fundamental principle that a public office cannot
be regarded as the property of the incumbent, and that a public office is not a
contract.
It will next be noted that, while the respondent as appellant assigns three errors
in this court, the first two relating to preliminary matters are ultimately
renounced by him in order that there may be an authoritative decision on the
main issue. The third error specified and argued with ability by the provincial
fiscal of Cebu, is that the trial judge erred in declaring that the limitation
regarding the age of justices of the peace provided by section 1 of Act No. 3107
is not applicable to justices of the peace and auxiliary justices of the peace
appointed and acting before said law went into effect.
Coming now to the law, we find on investigation the original provision pertinent
to the appointment and term of office of justices of the peace, in section 67 of
Act No. 136, wherein it was provided that justices of the peace shall hold office
during the pleasure of the Commission. Act No. 1450, in force when Vicente
Segovia was originally appointed justice of the peace, amended section 67 of
the Judiciary Law by making the term of office of justices and auxiliary justices
of the peace two years from the first Monday in January nearest the date of
appointment. Shortly after Segovia's appointment, however, the law was again
amended by Act No. 1627 by providing that "all justices of the peace and
auxiliary justices of the peace shall hold office during good behavior and those
now in office shall so continue." Later amended by Acts Nos. 2041 and 2617,
the law was ultimately codified in sections 203 and 206 of the Administrative
Code.
Codal section 203 in its first paragraph provides that "one justice of the peace
and one auxiliary justice of the peace shall be appointed by the Governor-
General for the City of Manila, the City of Baguio, and for each municipality,
township, and municipal district in the Philippine Islands, and if the public
interests shall so require, for any other minor political division or unorganized
territory in said Islands." It was this section which section 1 of Act No. 3107
amended by adding at the end thereof the following proviso: "Provided, That
justices and auxiliary justices of the peace shall be appointed to serve until they
have reached the age of sixty-five years." But section 206 of the Administrative
Code entitled "Tenure of office," and reading "a justice of the peace having the
requisite legal qualifications shall hold office during good behavior unless his
office be lawfully abolished or merged in the jurisdiction of some other justice,"
was left unchanged by Act No. 3107.
A sound canon of statutory construction is that a statute operates prospectively
only and never retroactively, unless the legislative intent to the contrary is made
manifest either by the express terms of the statute or by necessary implication.
Following the lead of the United States Supreme Court and putting the rule
more strongly, a statute ought not to receive a construction making it act
retroactively, unless the words used are so clear, strong, and imperative that no
other meaning can be annexed to them, or unless the intention of the legislature
cannot be otherwise satisfied. No court will hold a statute to be retroactive when
the legislature has not said so. As our Civil Code has it in article 3, "Law shall
not have a retroactive effect unless therein otherwise provided." (Farrel vs.
Pingree [1888], 5 Utah, 443; 16 Pac., 843; Greer vs. City of Asheville [1894],
114 N.C., 495; United States Fidelity and Guaranty Co. vs. Struthers Wells Co.
[1907], 209 U.S., 306; Montilla vs. Agustinian Corporation [1913], 24 Phil.,
220; In re will of Riosa [1918], 39 Phil., 23.)
The same rule is followed by the courts with reference to public offices. A well-
known New York decision held that "though there is no vested right in an office,
which may not be disturbed by legislation, yet the incumbent has, in a sense, a
right to his office. If that right is to be taken away by statute, the terms should
be clear in which the purpose is stated." (People ex rel. Ryan vs. Green [1874],
58 N.Y., 295.) In another case, a new constitutional provision as to the advanced
age which should prevent the incumbents of certain judicial offices from
retaining them was held prospective; it did not apply to persons in office at the
time of its taking effect. (People vs. Gardner, 59 Barb., 198; II Lewis'
Sutherland Statutory Construction, Chap. XVII, particularly pages 1161, 1162;
Mechem on Public Officers, sec. 389.)
The case at bar is not the same as the case of Chanco vs. Imperial ( [1916], 34
Phil., 329). In that case, the question was as to the validity of section 7 of Act
No. 2347. The law under consideration not only provided that Judges of First
Instance shall serve until they have reached the age of sixty-five years, but it
further provided "that the present judges of Courts of First Instance ... vacate
their positions on the taking effect of this Act: and the Governor-General, with
the advice and consent of the Philippine Commission, shall make new
appointments of judges of Courts of First Instance ... ." There the intention of
the Legislature to vacate the office was clearly expressed. Here, it is not
expressed at all.
The language of Act No. 3107 amendatory of section 203 of the Administrative
Code, gives no indication of retroactive effect. The law signifies no purpose of
operating upon existing rights. A proviso was merely tacked on to section 203
of the Administrative Code, while leaving intact section 206 of the same Code
which permits justices of the peace to hold office during good behavior. In the
absence of provisions expressly making the law applicable to justices of the
peace then in office, and in the absence of provisions impliedly indicative of
such legislative intent, the courts would not be justified in giving the law an
interpretation which would legislate faithful public servants out of office.
Answering the question with which we began our decision, we hold that the
proviso added to section 203 of the Administrative Code by section 1 of Act
No. 3107, providing that justices and auxiliary justices of the peace shall be
appointed to serve until they have reached the age of sixty-five years, should be
given prospective effect only, and so is not applicable to justices of the peace
and auxiliary justices of the peace appointed before Act No. 3107 went into
force. Consequently, it results that the decision of the trial court is correct in its
findings of fact and law and in its disposition of the case.
G.R. No. 145368 April 12, 2002 Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP
for violating the rules on public bidding, relative to the award of centennial
contracts to AK (Asia Construction & Development Corp.); for exhibiting
SALVADOR H. LAUREL, petitioner,
manifest bias in the issuance of the NTP (Notice to Proceed) to AK to construct
vs.
the FR (Freedom Ring) even in the absence of a valid contract that has caused
HON. ANIANO A. DESIERTO, in his capacity as
material injury to government and for participating in the scheme to preclude
Ombudsman, respondent.
audit by COA of the funds infused by the government for the implementation
of the said contracts all in violation… of the anti-graft law."5
On June 13, 1991, President Corazon C. Aquino issued Administrative Order
No. 223 "constituting a Committee for the preparation of the National
Later, on November 5, 1999, the Saguisag Committee issued its own report. It
Centennial Celebration in 1998." The Committee was mandated "to take charge
recommended "the further investigation by the Ombudsman, and indictment, in
of the nationwide preparations for the National Celebration of the Philippine
proper cases of," among others, NCC Chair Salvador H. Laurel for violations
Centennial of the Declaration of Philippine Independence and the Inauguration
of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A.
of the Malolos Congress."1
No. 6713, and Article 217 of the Revised Penal Code.

Subsequently, President Fidel V. Ramos issued Executive Order No. 128,

The Reports of the Senate Blue Ribbon and the Saguisag Committee were
"reconstituting the Committee for the preparation of the National Centennial
apparently referred to the Fact-finding and Intelligence Bureau of the Office of
Celebrations in 1988." It renamed the Committee as the "National Centennial
the Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report,
Commission." Appointed to chair the reconstituted Commission was Vice-
recommending:
President Salvador H. Laurel. Presidents Diosdado M. Macapagal and Corazon
C. Aquino were named Honorary Chairpersons.2
1. that a formal complaint be filed and preliminary investigation be
conducted before the Evaluation and Preliminary Investigation
Characterized as an "i body," the existence of the Commission "shall terminate
Bureau (EPIB), Office of the Ombudsman against former NCC and
upon the completion of all activities related to the Centennial
EXPOCORP chair Salvador H. Laurel, former EXPOCORP
Celebrations."3 Like its predecessor Committee, the Commission was tasked to
President Teodoro Q. Peña and AK President Edgardo H. Angeles
"take charge of the nationwide preparations for the National Celebration of the
for violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in
Philippine Centennial of the Declaration of Philippine Independence and the
relation to PD 1594 and COA Rules and Regulations;
Inauguration of the Malolos Congress."

2. That the Fact Finding and Intelligence Bureau of this Office, act
Per Section 6 of the Executive Order, the Commission was also charged with
as the nominal complainant.6
the responsibility to "prepare, for approval of the President, a Comprehensive
Plan for the Centennial Celebrations within six (6) months from the effectivity
of" the Executive Order. In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the
Evaluation and Preliminary Investigation Bureau, directed petitioner to submit
his counter-affidavit and those of his witnesses.
E.O. No. 128 also contained provisions for staff support and funding:

On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion
Sec. 3. The Commission shall be provided with technical and
to Dismiss questioning the jurisdiction of said office.
administrative staff support by a Secretariat to be composed of,
among others, detailed personnel from the Presidential Management
Staff, the National Commission for Culture and the Arts, and the In an Order dated June 13, 2000, the Ombudsman denied petitioner’s motion to
National Historical Institute. Said Secretariat shall be headed by a dismiss.
full time Executive Director who shall be designated by the
President.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000
Order but the motion was denied in an Order dated October 5, 2000.
Sec. 4. The Commission shall be funded with an initial budget to be
drawn from the Department of Tourism and the president’s
On October 25, 2000, petitioner filed the present petition for certiorari.
Contingent Fund, in an amount to be recommended by the
Commission, and approved by the President. Appropriations for
succeeding years shall be incorporated in the budget of the Office of On November 14, 2000, the Evaluation and Preliminary Investigation Bureau
the President. issued a resolution finding "probable cause to indict respondents SALVADOR
H. LAUREL and TEODORO Q. PEÑA before the Sandiganbayan for
conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to
Subsequently, a corporation named the Philippine Centennial Expo ’98
Republic Act No. 1594." The resolution also directed that an information for
Corporation (Expocorp) was created.4Petitioner was among the nine (9)
violation of the said law be filed against Laurel and Peña. Ombudsman Aniano
Expocorp incorporators, who were also its first nine (9) directors. Petitioner was
A. Desierto approved the resolution with respect to Laurel but dismissed the
elected Expocorp Chief Executive Officer.
charge against Peña.

On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege

In a Resolution dated September 24, 2001, the Court issued a temporary
speech in the Senate denouncing alleged anomalies in the construction and
restraining order, commanding respondents to desist from filing any
operation of the Centennial Exposition Project at the Clark Special Economic
information before the Sandiganbayan or any court against petitioner for alleged
Zone. Upon motion of Senator Franklin Drilon, Senator Coseteng’s privilege
violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
speech was referred to the Committee on Accountability of Public Officers and
Investigation (The Blue Ribbon Committee) and several other Senate
Committees for investigation. On November 14, 2001, the Court, upon motion of petitioner, heard the parties
in oral argument.
On February 24, 1999, President Joseph Estrada issued Administrative Order
No. 35, creating an ad hoc and independent citizens’ committee to investigate Petitioner assails the jurisdiction of the Ombudsman on the ground that he is
all the facts and circumstances surrounding the Philippine centennial projects, not a public officer because:
including its component activities. Former Senator Rene A.V. Saguisag was
appointed to chair the Committee.
A.

On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary
of the Senate its Committee Final Report No. 30 dated February 26, 1999. EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL
Among the Committee’s recommendations was "the prosecution by the WHICH UNDERTOOK THE FREEDOM RING PROJECT IN
CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND
CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED, WAS A
PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR
CONTROLLED CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A
PUBLIC OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP
WAS NOT A "PUBLIC OFFICER" AS DEFINED UNDER THE ANTI-
GRAFT & CORRUPT PRACTICES ACT.7
In addition, petitioner in his reply8 invokes this Court’s decision in Uy vs.
Sandiganbayan,9 where it was held that the jurisdiction of the Ombudsman was
limited to cases cognizable by the Sandiganbayan, i.e., over public officers of
Grade 27 and higher. As petitioner’s position was purportedly not classified as
Grade 27 or higher, the Sandiganbayan and, consequently, the Ombudsman,
would have no jurisdiction over him.
This last contention is easily dismissed. In the Court’s decision in Uy, we held
that "it is the prosecutor, not the Ombudsman, who has the authority to file the
corresponding information/s against petitioner in the regional trial court. The
Ombudsman exercises prosecutorial powers only in cases cognizable by the
Sandiganbayan."
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the
authority of the State and regular provincial and city prosecutors
under the Department of Justice to have control over prosecution of
cases falling within the jurisdiction of the regular courts. The
investigation and prosecutorial powers of the Ombudsman relate to
cases rightfully falling within the jurisdiction of the Sandiganbayan
under Section 15 (1) of R.A. 6770 ("An Act Providing for the
Functional and Structural Organization of the Office of the
Ombudsman, and for other purposes") which vests upon the
Ombudsman "primary jurisdiction over cases cognizable by the
Sandiganbayan…" And this is further buttressed by Section 11 (4a)
of R.A. 6770 which emphasizes that the Office of the Special
Prosecutor shall have the power to "conduct preliminary
investigation and prosecute criminal cases within the jurisdiction of
the Sandiganbayan." Thus, repeated references to the
Sandiganbayan’s jurisdiction clearly serve to limit the
Ombudsman’s and Special Prosecutor’s authority to cases
cognizable by the Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for
clarification by the Ombudsman in the same case, the Court set aside the
foregoing pronouncement in its Resolution dated March 20, 2001. The Court
explained the rationale for this reversal:
The power to investigate and to prosecute granted by law to the
Ombudsman is plenary and unqualified. It pertains to any act or
omission of any public officer or employee when such act or
omission appears to be illegal, unjust, improper or inefficient. The
law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been
held that the clause "any illegal act or omission of any public
official" is broad enough to embrace any crime committed by a
public officer or employee.
The reference made by RA 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15(1) giving the
Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11(4) granting the Special Prosecutor
the power to conduct preliminary investigation and prosecute
criminal cases within the jurisdiction of the Sandiganbayan, should
not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction
over cases cognizable by the Sandiganbayan. The law defines such
primary jurisdiction as authorizing the Ombudsman "to take over, at
any stage, from any investigatory agency of the government, the
investigation of such cases." The grant of this authority does not
necessarily imply the exclusion from its jurisdiction of cases
involving public officers and employees by other courts. The
exercise by the Ombudsman of his primary jurisdiction over cases
cognizable by the Sandiganbayan is not incompatible with the
discharge of his duty to investigate and prosecute other offenses
committed by public officers and employees. Indeed, it must be
stressed that the powers granted by the legislature to the
Ombudsman are very broad and encompass all kinds of
malfeasance, misfeasance and non-feasance committed by public
officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should
not be equated with the limited authority of the Special Prosecutor
under Section 11 of RA 6770. The Office of the Special Prosecutor
is merely a component of the Office of the Ombudsman and may
only act under the supervision and control and upon authority of the
Ombudsman. Its power to conduct preliminary investigation and to
prosecute is limited to criminal cases within the jurisdiction of the
Sandiganbayan. Certainly, the lawmakers did not intend to confine
the investigatory and prosecutory power of the Ombudsman to these
types of cases. The Ombudsman is mandated by law to act on all
complaints against officers and employees of the government and to
enforce their administrative, civil and criminal liability in every case
where the evidence warrants. To carry out this duty, the law allows
him to utilize the personnel of his office and/or designate any fiscal,
state prosecutor or lawyer in the government service to act as special
investigator or prosecutor to assist in the investigation and
prosecution of certain cases. Those designated or deputized to assist
him work under his supervision and control. The law likewise allows
him to direct the Special Prosecutor to prosecute cases outside the
Sandiganbayan’s jurisdiction in accordance with Section 11 (4c) of
RA 6770.
The prosecution of offenses committed by public officers and
employees is one of the most important functions of the
Ombudsman. In passing RA 6770, the Congress deliberately
endowed the Ombudsman with such power to make him a more
active and effective agent of the people in ensuring accountability in
public office. A review of the development of our Ombudsman law
reveals this intent. [Emphasis in the original.]
Having disposed of this contention, we proceed to the principal grounds upon
which petitioner relies. We first address the argument that petitioner, as Chair
of the NCC, was not a public officer.
The Constitution10 describes the Ombudsman and his Deputies as "protectors of
the people," who "shall act promptly on complaints filed in any form or manner
against public officials or employees of the government, or any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporations." Among the awesome powers, functions, and duties vested by the
Constitution11 upon the Office of the Ombudsman is to "[i]nvestigate… any act
or omission of any public official, employee, office or agency, when such act
or omission appears to be illegal, unjust, improper, or inefficient."
The foregoing constitutional provisions are substantially reproduced in R.A.
No. 6770, otherwise known as the "Ombudsman Act of 1989." Sections 13 and
15(1) of said law respectively provide:
SEC. 13. Mandate. – The Ombudsman and his Deputies, as
protectors of the people shall act promptly on complaints file in any
form or manner against officers or employees of the Government, or
of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the
evidence warrants in order to promote efficient service by the
Government to the people.
 SEC. 15. Powers, Functions and Duties. – The Office of the The Constitution provides in Article XIV (Education, Science and Technology,
Ombudsman shall have the following powers, functions and duties: Arts, Culture, and Sports) thereof:

(1) Investigate and prosecute on its own or on complaint by any Sec. 15. Arts and letters shall enjoy the patronage of the State. The
person, any act or omission of any public officer or employee, office State shall conserve, promote, and popularize the nation’s historical
or agency, when such act or omission appears to be illegal unjust, and cultural heritage and resources, as well as artistic creations.
improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of this primary
In its preamble, A.O. No. 223 states the purposes for the creation of the
jurisdiction, it may take over, at any stage, from any investigatory
Committee for the National Centennial Celebrations in 1998:
agency of Government, the investigation of such cases;

Whereas, the birth of the Republic of the Philippines is to be

x x x.
celebrated in 1998, and the centennial presents an important vehicle
for fostering nationhood and a strong sense of Filipino identity;
The coverage of the law appears to be limited only by Section 16, in relation to
Section 13, supra:
Whereas, the centennial can effectively showcase Filipino heritage
and thereby strengthen Filipino values;
SEC 16. Applicability. – The provisions of this Act shall apply to all
kinds of malfeasance, misfeasance and non-feasance that have been
Whereas, the success of the Centennial Celebrations may be insured
committed by any officer or employee as mentioned in Section 13
only through long-range planning and continuous developmental
hereof, during his tenure of office.
programming;

In sum, the Ombudsman has the power to investigate any malfeasance,

Whereas, the active participation of the private sector in all areas of
misfeasance and non-feasance by a public officer or employee of the
special expertise and capability, particularly in communication and
government, or of any subdivision, agency or instrumentality thereof, including
information dissemination, is necessary for long-range planning and
government-owned or controlled corporations.12
continuous developmental programming;

Neither the Constitution nor the Ombudsman Act of 1989, however, defines
Whereas, there is a need to create a body which shall initiate and
who public officers are. A definition of public officers cited in jurisprudence13 is
undertake the primary task of harnessing the multisectoral
that provided by Mechem, a recognized authority on the subject:
components from the business, cultural, and business sectors to
serve as effective instruments from the launching and overseeing of
A public office is the right, authority and duty, created and conferred this long-term project;
by law, by which, for a given period, either fixed by law or enduring
at the pleasure of the creating power, an individual is invested with
x x x.
some portion of the sovereign functions of the government, to be
exercised by him for the benefit of the public. The individual so
invested is a public officer.14 E.O. No. 128, reconstituting the Committee for the National Centennial
Celebrations in 1998, cited the "need to strengthen the said Committee to ensure
a more coordinated and synchronized celebrations of the Philippine Centennial
The characteristics of a public office, according to Mechem, include the
and wider participation from the government and non-government or private
delegation of sovereign functions, its creation by law and not by contract, an
organizations." It also referred to the "need to rationalize the relevance of
oath, salary, continuance of the position, scope of duties, and the designation of
historical links with other countries."
the position as an office.15

The NCC was precisely created to execute the foregoing policies and objectives,
Petitioner submits that some of these characteristics are not present in the
to carry them into effect. Thus, the Commission was vested with the following
position of NCC Chair, namely: (1) the delegation of sovereign functions; (2)
functions:
salary, since he purportedly did not receive any compensation; and (3)
continuance, the tenure of the NCC being temporary.
(a) To undertake the overall study, conceptualization, formulation
and implementation of programs and projects on the utilization of
Mechem describes the delegation to the individual of some of the sovereign
culture, arts, literature and media as vehicles for history, economic
functions of government as "[t]he most important characteristic" in determining
endeavors, and reinvigorating the spirit of national unity and sense
whether a position is a public office or not.
of accomplishment in every Filipino in the context of the Centennial
Celebrations. In this regard, it shall include a Philippine National
The most important characteristic which distinguishes an office Exposition ’98 within Metro Manila, the original eight provinces,
from an employment or contract is that the creation and conferring and Clark Air Base as its major venues;
of an office involves a delegation to the individual of some of the
sovereign functions of government, to be exercised by him for the
(b) To act as principal coordinator for all the activities related to
benefit of the public; – that some portion of the sovereignty of the
awareness and celebration of the Centennial;
country, either legislative, executive or judicial, attaches, for the
time being, to be exercised for the public benefit. Unless the powers
conferred are of this nature, the individual is not a public officer. 16 (c) To serve as the clearing house for the preparation and
dissemination of all information about the plans and events for the
Centennial Celebrations;
Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC functions that
can be described as legislative or judicial. May the functions of the NCC then (d) To constitute working groups which shall undertake the
be described as executive? implementation of the programs and projects;

We hold that the NCC performs executive functions. The executive power "is
generally defined as the power to enforce and administer the laws. It is the
power of carrying the laws into practical operation and enforcing their due
observance."17 The executive function, therefore, concerns the implementation
of the policies as set forth by law.
(e) To prioritize the refurbishment of historical sites and structures
nationwide. In this regard, the Commission shall formulate schemes
(e.g. lease-maintained-and-transfer, build-operate-transfer, and
similar arrangements) to ensure the preservation and maintenance of
the historical sites and structures;
 (f) To call upon any government agency or instrumentality and
corporation, and to invite private individuals and organizations to
assist it in the performance of its tasks; and,
(g) Submit regular reports to the President on the plans, programs,
projects, activities as well as the status of the preparations for the
Celebration.18
It bears noting the President, upon whom the executive power is
vested,19 created the NCC by executive order. Book III (Office of the President),
Chapter 2 (Ordinance Power), Section 2 describes the nature of executive
orders:
SEC. 2. Executive Orders. – Acts of the President providing for rules
of a general or permanent character in implementation or execution
of constitutional or statutory powers shall be promulgated
in executive orders. [Underscoring ours.]
Furthermore, the NCC was not without a role in the country’s economic
development, especially in Central Luzon. Petitioner himself admitted as much
in the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President
Ramos, don’t you agree that the task of the centennial
commission was also to focus on the long term over all
socio economic development of the zone and Central
Luzon by attracting investors in the area because of the
eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is
something I wanted to touch on by lack of material time
I could not but that is a very important point. When I was
made Chairman I wanted the Expo to be in Batangas
because I am a Batangeño but President Ramos said Mr.
Vice President the Central Luzon is suffering, suffering
because of the eruption of Mt. Pinatubo let us try to
catalize [sic] economic recovery in that area by putting
this Expo in Clark Field and so it was done I agreed and
Your Honor if I may also mention we wanted to generate
employment aside from attracting business investments
and employment. And the Estrada administration decided
to junk this project there 48, 40 thousand people who lost
job, they were employed in Expo. And our target was to
provide 75 thousand jobs. It would have really
calibrated, accelerated the development of Central
Luzon. Now, I think they are going back to that because
they had the airport and there are plan to revive the Expo
site into key park which was the original plan.
There can hardly be any dispute that the promotion of industrialization and full
employment is a fundamental state policy.20
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that the
holding by a municipality of a town fiesta is a proprietary rather than a
governmental function. Petitioner argues that the "holding of a nationwide
celebration which marked the nation’s 100th birthday may be likened to a
national fiesta which involved only the exercise of the national government’s
proprietary function."22 In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised
Administrative Code] simply gives authority to the municipality to
[celebrate] a yearly fiesta but it does not impose upon it a duty to
observe one. Holding a fiesta even if the purpose is to commemorate
a religious or historical event of the town is in essence an act for
the special benefit of the community and not for the general
welfare of the public performed in pursuance of a policy of the state.
The mere fact that the celebration, as claimed, was not to secure
profit or gain but merely to provide entertainment to the town
inhabitants is not a conclusive test. For instance, the maintenance of
parks is not a source of income for the town, nonetheless it is [a]
private undertaking as distinguished from the maintenance of public
schools, jails, and the like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of
determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are
to be considered and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it
is government in essence, otherwise, the function becomes private
or propriety in character. Easily, no governmental or public policy
of the state is involved in the celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing doctrine. Note
that the Court cautioned that "there can be no hard and fast rule for purposes of
determining the true nature of an undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be considered and will be
decisive." Thus, in footnote 15 of Torio, the Court, citing an American case,
illustrated how the "surrounding circumstances plus the political, social, and
cultural backgrounds" could produce a conclusion different from that in Torio:
We came across an interesting case which shows that surrounding
circumstances plus the political, social, and cultural backgrounds
may have a decisive bearing on this question. The case of Pope v.
City of New Haven, et al. was an action to recover damages for
personal injuries caused during a Fourth of July fireworks display
resulting in the death of a bystander alleged to have been caused by
defendants’ negligence. The defendants demurred to the complaint
invoking the defense that the city was engaged in the performance
of a public governmental duty from which it received no pecuniary
benefit and for negligence in the performance of which no statutory
liability is imposed. This demurrer was sustained by the Superior
Court of New Haven Country. Plaintiff sought to amend his
complaint to allege that the celebration was for the corporate
advantage of the city. This was denied. In affirming the order, the
Supreme Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent
performance of purely public governmental duties, unless made
liable by statute….
A municipality corporation, which under permissive authority of its
charter or of statute, conducted a public Fourth of July celebration,
including a display of fireworks, and sent up a bomb intended to
explode in the air, but which failed to explode until it reached the
ground, and then killed a spectator, was engaged in the performance
of a governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from
[this] excerpt:
"July 4th, when that date falls upon Sunday, July 5th, is made a
public holiday, called Independence Day, by our statutes. All or
nearly all of the other states have similar statutes. While there is no
United States statute making a similar provision, the different
departments of the government recognize, and have recognized
since the government was established, July 4th as a national holiday.
Throughout the country it has been recognized and celebrated as
such. These celebrations, calculated to entertain and instruct the
people generally and to arouse and stimulate patriotic sentiments
and love of country, frequently take the form of literary exercises
consisting of patriotic speeches and the reading of the Constitution,
accompanied by a musical program including patriotic air
sometimes preceded by the firing of cannon and followed by
fireworks. That such celebrations are of advantage to the general
public and their promotion a proper subject of legislation can hardly
be questioned. x x x"
Surely, a town fiesta cannot compare to the National Centennial Celebrations.
The Centennial Celebrations was meant to commemorate the birth of our nation
after centuries of struggle against our former colonial master, to memorialize
the liberation of our people from oppression by a foreign power. 1998 marked
100 years of independence and sovereignty as one united nation. The
Celebrations was an occasion to reflect upon our history and reinvigorate our
patriotism. As A.O. 223 put it, it was a "vehicle for fostering nationhood and a
strong sense of Filipino identity," an opportunity to "showcase Filipino heritage
and thereby strengthen Filipino values." The significance of the Celebrations
could not have been lost on petitioner, who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people,
we wanted to rekindle the love for freedom, love for country, that is
the over-all goal that has to make everybody feel proud that he is a
Filipino, proud of our history, proud of what our forefather did in
their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public office,
and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is
of little consequence. A salary is a usual but not a necessary criterion for
determining the nature of the position. It is not conclusive. The salary is a mere
incident and forms no part of the office. Where a salary or fees is annexed, the
office is provided for it is a naked or honorary office, and is supposed to be
accepted merely for the public good.23 Hence, the office of petitioner as NCC
Chair may be characterized as an honorary office, as opposed to a lucrative
office or an office of profit, i.e., one to which salary, compensation or fees are
attached.24 But it is a public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-
hoc body" make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration,
and certainly a position which is merely temporary and local cannot
ordinarily be considered an office. "But," says Chief Justice
Marshall, "if a duty be a continuing one, which is defined by rules
prescribed by the government and not by contract, which an
individual is appointed by government to perform, who enters on the
duties pertaining to his station without any contract defining them,
if those duties continue though the person be changed, -- it seems
very difficult to distinguish such a charge or employment from an
office of the person who performs the duties from an officer."
At the same time, however, this element of continuance can not be
considered as indispensable, for, if the other elements are present
"it can make no difference," says Pearson, C.J., "whether there be
but one act or a series of acts to be done, -- whether the office expires
as soon as the one act is done, or is to be held for years or during
good behavior."25
Our conclusion that petitioner is a public officer finds support in In Re
Corliss.26 There the Supreme Court of Rhode Island ruled that the office of
Commissioner of the United States Centennial Commission is an "office of
trust" as to disqualify its holder as elector of the United States President and
Vice-President. (Under Article II of the United States Constitution, a person
holding an office of trust or profit under the United States is disqualified from
being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial
Commission holds an office of trust under the United States, and
that he is therefore disqualified for the office of elector of President
and Vice-President of the United States.
The commission was created under a statute of the United States
approved March 3, 1871. That statute provides for the holding of an
exhibition of American and foreign arts, products, and
manufactures, "under the auspices of the government of the United
States," and for the constitution of a commission, to consist of more
than one delegate from each State and from each Territory of the
United States, "whose functions shall continue until close of the
exhibition," and "whose duty it shall be to prepare and superintend
the execution of the plan for holding the exhibition." Under the
statute the commissioners are appointed by the President of the
United States, on the nomination of the governor of the States and
Territories respectively. Various duties were imposed upon the
commission, and under the statute provision was to be made for it to
have exclusive control of the exhibit before the President should
announce, by proclamation, the date and place of opening and
holding the exhibition. By an act of Congress approved June 1st,
1872, the duties and functions of the commission were further
increased and defined. That act created a corporation, called "The
Centennial Board of Finance," to cooperate with the commission
and to raise and disburse the funds. It was to be organized under the
direction of the commission. The seventh section of the act provides
"that the grounds for exhibition shall be prepared and the buildings
erected by the corporation, in accordance with plans which shall
have been adopted by the United States Centennial Commission;
and the rules and regulations of said corporation, governing rates for
entrance and admission fees, or otherwise affecting the rights,
privileges, or interests of the exhibitors, or of the public, shall be
fixed and established by the United States Centennial Commission;
and no grant conferring rights or privileges of any description
connected with said grounds or buildings, or relating to said
exhibition or celebration, shall be made without the consent of the
United States Centennial Commission, and said commission shall
have power to control, change, or revoke all such grants, and shall
appoint all judges and examiners and award all premiums." The
tenth section of the act provides that "it shall be the duty of the
United States Centennial Commission to supervise the closing up of
the affairs of said corporation, to audit its accounts, and submit in a
report to the President of the United States the financial results of
the centennial exhibition."
It is apparent from this statement, which is but partial, that the duties
and functions of the commission were various, delicate, and
important; that they could be successfully performed only by men
of large experience and knowledge of affairs; and that they were not
merely subordinate and provisional, but in the highest degree
authoritative, discretionary, and final in their character. We think
that persons performing such duties and exercising such functions,
in pursuance of statutory direction and authority, are not to be
regarded as mere employees, agents, or committee men, but that
they are, properly speaking, officers, and that the places which they
hold are offices. It appears, moreover, that they were originally
regarded as officers by Congress; for the act under which they were
appointed declares, section 7, that "no compensation for services
shall be paid to the commissioners or other officers, provided for in
this act, from the treasury of the United States." The only other
officers provided for were the "alternates" appointed to serve as
commissioners when the commissioners were unable to attend.
Having arrived at the conclusion that the NCC performs executive functions
and is, therefore, a public office, we need no longer delve at length on the issue
of whether Expocorp is a private or a public corporation. Even assuming that
Expocorp is a private corporation, petitioner’s position as Chief Executive
Officer (CEO) of Expocorp arose from his Chairmanship of the NCC.
Consequently, his acts or omissions as CEO of Expocorp must be viewed in the
light of his powers and functions as NCC Chair.27
Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public
officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt
Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said
law, which reads:
SEC. 3. Corrupt practices of public officers. – In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality,
 evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
A "public officer," under R.A. No. 3019, is defined by Section 2 of said law as
follows:
SEC. 2. Definition of terms. – As used in this Act, the term –
xxx
How then is "compensation," as the term is used in Section 2 (b) of R.A. No.
3019, to be interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting that
petitioner did not receive any salary, the records do not reveal if he received any
allowance, fee, honorarium, or some other form of compensation. Notably,
under the by-laws of Expocorp, the CEO is entitled to per diems and
compensation.31 Would such fact bear any significance?
Obviously, this proceeding is not the proper forum to settle these issues lest we
preempt the trial court from resolving them.

WHEREFORE, the petition is DISMISSED. The preliminary injunction issued

(b) "Public officer" includes elective and appointive officials and
in the Court’s Resolution dated September 24, 2001 is hereby LIFTED.
employees, permanent or temporary, whether in the classified or
unclassified or exemption service receiving compensation, even
nominal, from the government as defined in the preceding
paragraph. [Emphasis supplied.]

It is clear from Section 2 (b), above, that the definition of a "public officer" is
expressly limited to the application of R.A. No. 3019. Said definition does not
apply for purposes of determining the Ombudsman’s jurisdiction, as defined by
the Constitution and the Ombudsman Act of 1989.

Moreover, the question of whether petitioner is a public officer under the Anti-
Graft and Corrupt Practices Act involves the appreciation of evidence and
interpretation of law, matters that are best resolved at trial.

To illustrate, the use of the term "includes" in Section 2 (b) indicates that the
definition is not restrictive.28 The Anti-Graft and Corrupt Practices Act is just
one of several laws that define "public officers." Article 203 of the Revised
Penal Code, for example, provides that a public officer is:

x x x any person who, by direct provision of law, popular election

or appointment by competent authority, takes part in the
performance of public functions in the Government of Philippines,
or performs in said Government or in any of its branches public
duties as an employee, agent or subordinate official, of any rank or
class.

Section 2 (14) of the Introductory Provisions of the Administrative Code of

1987,29 on the other hand, states:

Officer – as distinguished from "clerk" or "employee", refers to a

person whose duties not being of a clerical or manual nature,
involves the exercise of discretion in the performance of the
functions of the government. When used with reference to a person
having authority to do a particular act or perform a particular person
in the exercise of governmental power, "officer" includes any
government employee, agent or body having authority to do the act
or exercise that function.

It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of
Conduct and Ethical Standards for Public Officials and Employees), one may
be considered a "public official" whether or not one receives compensation,
thus:

"Public Officials" include elective and appointive officials and

employees, permanent or temporary, whether in the career or non-
career service including military and police personnel, whether or
not they receive compensation, regardless of amount.

Which of these definitions should apply, if at all?

Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the
term "compensation," which is not defined by said law, has many meanings.

Under particular circumstances, "compensation" has been held to

include allowance for personal expenses, commissions, expenses,
fees, an honorarium, mileage or traveling expenses, payments for
services, restitution or a balancing of accounts, salary, and wages.30
G.R. No. 159813 August 9, 2006 over the dominance of Bangkerohan. One of the likely victims in this filthy
machination are the sinapo vendors who have become explosively furious over
the snafu they are facing because of the manipulation of stalls inside
TONY N. FIGUEROA and ROGELIO J. FLAVIANO, Petitioners,
Bangkerohan.
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
"Insiders continuo[u]sly tell of woeful tales about how they have been given
runarounds by many so-called public servants, but they have maintained their
On March 24, 1992, in the RTC of Davao City, the city prosecutor of Davao, at
composures quite curiously. They are talking, however, of anger which, our
the instance of one Aproniano Rivera, filed an Information 2 for libel under
sources [s]ay, may end up with a bloody retaliation. This probability is looming
Article 355 in relation to Article 360 of the Revised Penal Code against the
more lucid every day the officials handling the Bangkerohan stall mess are
herein petitioners, Tony N. Figueroa and Rogelio J. Flaviano. Docketed in the
condoning their plight. Even politicos are oddly silent about the whole
same court as Criminal Case No. 25,957-92 and raffled to Branch 17 thereof,
controversy for some unknown reasons. It looks like the alleged schemes
the Information alleges as follows:
perpetrated by Rivera, Miclat and Garcia will remain unperturbed, no thanks to
power-brokers."
That on or about April 9, 1991, in the City of Davao, Philippines, and within
the jurisdiction of this Honorable Court, the above-mentioned accused, Tony
which newspaper was read by the people throughout Davao City, to the
VN. Figueroa, writer under the column entitled "Footprints" of the People's
dishonor, discredit and contempt upon said Aproniano Rivera.
Daily Forum, conspiring, confederating and helping one another with his co-
accused Rogelio J. Flaviano, Publisher-Editor of the same magazine, with
malicious intent of impeaching the honesty, integrity, character as well as the Contrary to law.
reputation and the social standing of one Aproniano Rivera and with intent to
cast dishonor, discredit and contempt upon said Aproniano Rivera, willfully,
On arraignment, petitioners as accused, assisted by counsel, entered a common
unlawfully and feloniously published in the People's Daily Forum, a news
plea of "Not Guilty." Thereafter, trial on the merits ensued.
publication as follows:

On June 8, 1993, the RTC rendered its decision 3 finding both petitioners guilty
"Bangkerohan public market these days is no different from the US Times
as charged and accordingly sentenced them, thus:
Square. Bullies, thugs, hooligans and gyppers roam with impunity, some using
organizational clout as a ploy to keep themselves from obvious exposure. Some
leeches, like a certain Aproniano "Rey" Rivera, our sources say, are lording it WHEREFORE, finding the evidence of the prosecution sufficient to prove the
over like the city's sprawling vegetable and meat complex has become an guilt of both accused, Tony Figueroa and Rogelio Flaviano, columnist and
apportioned bailiwick. publisher-editor, respectively of the People's Daily Forum, of the offense
charged, beyond reasonable doubt; their evidence adduced is not sufficient to
afford their exoneration, pursuant to Art. 355 in relation to Art. 360 of the
"Rivera, apparently a non-Visayan pseudobully flaunting with his tag as
Revised Penal Code, without any mitigating ot [sic] aggravating circumstances,
president of a vendor's federation, has intimated a good number of lowly
proved in the commission of the offense charged, imposing the indeterminate
hawkers. This is a confirmed fact, our sources believe. And our independent
sentence law, both accused are hereby sentenced to suffer an indeterminate
eveasdroppers [sic] have come with a similar perception of a man who
penalty of imprisonment of five months and one day of arresto mayor maximum
continues to lead a federation when, in the first place, he has no business being
as minimum penalty, to two years four months and 31 days of prision
in Davao or in Bankerohan.
correccional minimum as maximum penalty with accessory penalty as provided
for by law.
"Often, Mr. "Re" (King?) Rivera strolls the stretches which criss-cross the
Bankerohan confines with the arrogance of a tribal chieftain; the only
Moreover, pursuant to Art. 100 in relation to Art. 104 of the Revised Penal
differences, however, are that: he uses no G-strings, speaks in some strange
Code, governing civil indemnity, both accused are ordered to pay jointly and
Luzon lingo and twang, and has no solid leadership. Our reports have finely
solidarily the amount of P50,000.00 as moral damages to complainant,
outlined the mechanics of Rivera's tactics despite assertions the man is nothing
Aproniano Rivera and the amount of P10,000.00 by way of attorney's fees with
but a paper tiger conveniently propped up by federation members loyal to his
costs.
sometime indecent role as a sachem.

Without any aggravating circumstances proved by the prosecution, in the

"This man, the sources add, is backed by powerful city government hooligans
commission of the offense charged exemplary damages against both accused,
who, it was reported, have direct hand in the planned manipulation in the
cannot be awarded. x x x
distribution of stalls to privileged applicants. Even if he has reportedly sold his
interest in the public market, which should be reason enough for him to resign
from his position, Rivera still carries the false aura of intimidating poor vendors SO ORDERED.
and imposing his insensible remarks about what must be done about the
governance of Bangkerohan.
From the trial court’s judgment of conviction, petitioners went to the CA
whereat their appellate recourse was docketed as CA-G.R. CR No. 17235.
"Sometimes its hard to compel a man with Rivera's mind about the nuances of
honorable resignation. May iba d'yan na pakapalan na lang ng mukha!"
As stated at the threshold hereof, the CA, in the herein assailed Decision 4 dated
October 11, 2002, affirmed that of the trial court, to wit:
xxx xxx xxx
WHEREFORE, premises considered, the decision of the Regional Trial Court
"Rivera, however, must be consoled in knowing he's not alone with his dirty is hereby AFFIRMED in all respects.
antics. Romy Miclat, a president of a meat vendors group in Bankerohan, and
his board member, Erning Garcia, have tacitly followed the way of the thugs,
floating little fibs to gullible victims. Our moles have gathered the due are SO ORDERED.
seeling [sic] the new public market stalls for P9,000 with the assurances that the
buyer gets a display area ordinarily occupied by two applicants. A lot more have Undaunted, petitioners are now with this Court via this petition for review on
fallen prey to the scheme, and more the blindly swallowing all the books the their submissions that the CA erred -
two are peddling.
1. IN HOLDING THAT THE COLUMN ENTITLED "FOOTPRINTS" OF
"This dilemma has been there for so long, but the city hall, RCDP, and the city THE PEOPLE’S DAILY FORUM IS LIBELOUS OR DEFAMATORY TO
council have continuously evaded the vicious cabal of men out to derail the PRIVATE COMPLAINANT APRONIANO RIVERA;
raffling of the stalls to applicants. Some believe strongly this is odd, but they
can only whimper at their helplessness against power-brokers who have taken
2. IN HOLDING THAT PRIVATE COMPLAINANT IS NOT A PUBLIC
OFFICER, HENCE THE PUBLISHED ARTICLE CANNOT BE
CONSIDERED TO BE WITHIN THE PURVIEW OF PRIVILEGED
COMMUNICATION;
3. IN UPHOLDING THE AWARD OF MORAL DAMAGES AND
ATTORNEY'S FEES.
The petition lacks merit.
In praying for their acquittal, petitioners attempt to pass off the subject
published article as one that portrays the condition of the Bankerohan Public
Market in general. Citing Jimenez v. Reyes, 5 they challenge the finding of the
two courts below on the libelous or defamatory nature of the same article which,
to them, must be read and construed in its entirety. It is their posture that the
article was not directed at the private character of complainant Aproniano
Rivera but on the sorry state of affairs at the Bankerohan Public Market.
Petitioners’ posture cannot save the day for them.
Our own reading of the entire text of the published article convinces us of its
libelous or defamatory character. While it is true that a publication's libelous
nature depends on its scope, spirit and motive taken in their entirety, the article
in question as a whole explicitly makes mention of private complainant Rivera
all throughout. It cannot be said that the article was a mere general commentary
on the alleged existing state of affairs at the aforementioned public market
because Rivera was not only specifically pointed out several times therein but
was even tagged with derogatory names. Indubitably, this name-calling was, as
correctly found by the two courts below, directed at the very person of Rivera
himself.
If, as argued, the published article was indeed merely intended to innocently
present the current condition of the Bankerohan Public Market, there would
then be no place in the article for the needless name-calling which it is wrought
full of. It is beyond comprehension how calling Rivera a "leech," "a paper tiger,"
a "non-Visayan pseudobully" with the "arrogance of a tribal chieftain" save for
his speaking in "some strange Luzon lingo and twang" and who "has no
business being in Davao or Bankerohan" can ever be regarded or viewed as
comments free of malice. As it is, the tag and description thus given Rivera have
no place in a general account of the situation in the public market, and cannot,
by any stretch of the imagination, be construed to be anything other than what
they really are: defamatory and libelous in nature, and definitely directed at the
private character of complainant Rivera. For indeed, no logical connection can
possibly be made between Rivera's Luzon origin and the conditions of the
Bankerohan Public Market. Doubtless, the words used in the article reek of
venom towards the very person of Rivera.
Article 353 of the Revised Penal Code defines libel as follows:
Art. 353. Definition of libel. - A libel is a public and malicious imputation of a
crime, or a vice or defect, real or imaginary, or any act, omission, condition,
status, or circumstance tending to cause the dishonor, discredit, or contempt of
a natural or juridical person, or to blacken the memory of one who is dead.
Defamation, which includes libel and slander, means injuring a person's
character, fame or reputation through false and malicious statements. It is that
which tends to injure reputation or to diminish the esteem, respect, goodwill or
confidence in the complainant or to excite derogatory feelings or opinions about
him. It is the publication of anything which is injurious to the good name or
reputation of another or tends to bring him into disrepute. 6
In the light of the numerable defamatory imputations made against complainant
Rivera as a person, the article in dispute, even taken, as urged, in its totality,
undeniably caused serious damage to his character and person and clearly
injurious to his reputation.
At any rate, in libel cases, the question is not what the writer of the libelous
material means, but what the words used by him mean. 7 Here, the defamatory
character of the words used by the petitioners is shown by the very recitals
thereof in the questioned article.
It is next contended by the petitioners that Rivera is a public officer. On this
premise, they invoke in their favor the application of one of the exceptions to
the legal presumption of the malicious nature of every defamatory imputation,
as provided for under paragraph (2), Article 354 of the Revised Penal Code, to
wit:
Art. 354. Requirement for publicity. - Every defamatory imputation is presumed
to be malicious, even if it be true, if no good intention and justifiable motive for
making it is shown, except in the following cases:
xxx xxx xxx
2. A fair and true report, made in good faith, without any comments or remarks,
of any judicial, legislative, or other official proceedings which are not of
confidential nature, or of any statement, report, or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise of
their functions.
Again, as correctly found by both the trial court and the CA, Rivera is not a
public officer or employee but a private citizen. Hence, the published article
cannot be considered as falling within the ambit of privileged communication
within the context of the above-quoted provision of the Penal Code.
A public office is the right, authority and duty, created and conferred by law,
by which an individual is invested with some portion of the sovereign functions
of the government, to be exercised by him for the benefit of the public. The
individual so invested is a public officer. The most important characteristic
which distinguishes an office from an employment or contract is that the
creation and conferring of an office involve a delegation to the individual of
some of the sovereign functions of government, to be exercised by him for the
benefit of the public; that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, to be exercised for the public benefit.
Unless the powers conferred are of this nature, the individual is not a public
officer. 8
Clearly, Rivera cannot be considered a public officer. Being a member of the
market committee did not vest upon him any sovereign function of the
government, be it legislative, executive or judicial. As reasoned out by the CA,
the operation of a public market is not a governmental function but merely an
activity undertaken by the city in its private proprietary capacity. Furthermore,
Rivera's membership in the market committee was in representation of the
association of market vendors, a non-governmental organization belonging to
the private sector.
Indeed, even if we were to pretend that Rivera was a public officer, which he
clearly is not, the subject article still would not pass muster as Article 354(2),
supra, of the Revised Penal Code expressly requires that it be a "fair and true
report, made in good faith, without any comments or remarks." Even a mere
cursory glance at the article reveals that it is far from being that.
Finally, petitioners assail the award by the two courts below of moral damages
and attorney's fees in favor of Rivera.
The assault must fail. Article 2219(7) of the Civil Code is express in stating that
moral damages may be recovered in case of libel, slander or any other form of
defamation. From the very publication and circulation of the subject defamatory
and libelous material itself, there can be no doubt as to the resulting wounded
feelings and besmirched reputation sustained by complainant Rivera. The
branding of defamatory names against him most certainly exposed him to public
contempt and ridicule. As found by the trial court in its judgment of conviction:
Complainant, when he read the subject publication, was embarrass on what was
written against him, made more unpleasant on the occasion of the reunion of
his son-in-law, who just arrived from the United States for the first time, was
confronted of the above-defamatory publication. He was worried and
depressed, about the comments against him, affecting his credibility and
personality, as representative of many market organizations in Davao City.
Having been exposed to embarrassment and ridicule occasioned by the
publication of the subject article, Rivera is entitled to moral damages and
attorney's fees.
G.R. Nos. 147026-27 September 11, 2009
CAROLINA R. JAVIER, Petitioner,
vs.
THE FIRST DIVISION OF THE SANDIGANBAYAN and the PEOPLE
OF THE PHILIPPINES, Respondents.
On June 7, 1995, Republic Act (R.A.) No. 8047, 5 or otherwise known as the
"Book Publishing Industry Development Act", was enacted into law. Foremost
in its policy is the State's goal in promoting the continuing development of the
book publishing industry, through the active participation of the private sector,
to ensure an adequate supply of affordable, quality-produced books for the
domestic and export market.
To achieve this purpose, the law provided for the creation of the National Book
Development Board (NBDB or the Governing Board, for brevity), which shall
be under the administration and supervision of the Office of the President. The
Governing Board shall be composed of eleven (11) members who shall be
appointed by the President of the Philippines, five (5) of whom shall come from
the government, while the remaining six (6) shall be chosen from the nominees
of organizations of private book publishers, printers, writers, book industry
related activities, students and the private education sector.
On February 26, 1996, petitioner was appointed to the Governing Board as a
private sector representative for a term of one (1) year. 6 During that time, she
was also the President of the Book Suppliers Association of the Philippines
(BSAP). She was on a hold-over capacity in the following year. On September
14, 1998, she was again appointed to the same position and for the same period
of one (1) year.7 Part of her functions as a member of the Governing Board is
to attend book fairs to establish linkages with international book publishing
bodies. On September 29, 1997, she was issued by the Office of the President a
travel authority to attend the Madrid International Book Fair in Spain on
October 8-12, 1997.8 Based on her itinerary of travel,9 she was paid
₱139,199.0010 as her travelling expenses.
Unfortunately, petitioner was not able to attend the scheduled international
book fair.
On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner
to immediately return/refund her cash advance considering that her trip was
canceled.11 Petitioner, however, failed to do so. On July 6, 1998, she was issued
a Summary of Disallowances12 from which the balance for settlement amounted
to ₱220,349.00. Despite said notice, no action was forthcoming from the
petitioner.
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of
the NBDB, filed with the Ombudsman a complaint against petitioner for
malversation of public funds and properties. She averred that despite the
cancellation of the foreign trip, petitioner failed to liquidate or return to the
NBDB her cash advance within sixty (60) days from date of arrival, or in this
case from the date of cancellation of the trip, in accordance with government
accounting and auditing rules and regulations. Dr. Apolonio further charged
petitioner with violation of Republic Act (R.A.) No. 671313 for failure to file
her Statement of Assets and Liabilities.
The Ombudsman found probable cause to indict petitioner for violation of
Section 3(e) of R.A. No. 3019,14 as amended, and recommended the filing of
the corresponding information.15 It, however, dismissed for insufficiency of
evidence, the charge for violation of R.A. No. 6713.
In an Information dated February 18, 2000, petitioner was charged with
violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit:
That on or about October 8, 1997, or for sometime prior or subsequent thereto,
in the City of Quezon, Philippines and within the jurisdiction of this Honorable
Court, the aforenamed accused, a public officer, being then a member of the
governing Board of the National Book Development Board (NBDB), while in
the performance of her official and administrative functions, and acting with
evident bad faith or gross inexcusable negligence, did then and there willfully,
unlawfully and criminally, without any justifiable cause, and despite due
demand by the Resident Auditor and the Executive Director of NBDB, fail and
refuse to return and/or liquidate her cash advances intended for official travel
abroad which did not materialize, in the total amount of ₱139,199.00 as of
September 23, 1999, as required under EO No. 248 and Sec. 5 of COA Circular
No. 97-002 thereby causing damage and undue injury to the Government.
CONTRARY TO LAW.16
The case was docketed as Criminal Case No. 25867 and raffled to the First
Division.
Meanwhile, the Commission on Audit charged petitioner with Malversation of
Public Funds, as defined and penalized under Article 217 of the Revised Penal
Code, for not liquidating the cash advance granted to her in connection with her
supposed trip to Spain. During the conduct of the preliminary investigation,
petitioner was required to submit her counter-affidavit but she failed to do so.
The Ombudsman found probable cause to indict petitioner for the crime charged
and recommended the filing of the corresponding information against her. 17
Thus, an Information dated February 29, 2000 was filed before the
Sandiganbayan, which was docketed as Criminal Case No. 25898, and raffled
to the Third Division, the accusatory portion of which reads:
That on or about and during the period from October 8, 1997 to February 16,
1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
a high ranking officer, being a member of the Governing Board of the National
Book Development Board and as such, is accountable for the public funds she
received as cash advance in connection with her trip to Spain from October 8-
12, 1997, per LBP Check No. 10188 in the amount of ₱139,199.00, which trip
did not materialize, did then and there willfully, unlawfully and feloniously
take, malverse, misappropriate, embezzle and convert to her own personal use
and benefit the aforementioned amount of ₱139,199.00, Philippine currency, to
the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.18
During her arraignment in Criminal Case No. 25867, petitioner pleaded not
guilty. Thereafter, petitioner delivered to the First Division the money subject
of the criminal cases, which amount was deposited in a special trust account
during the pendency of the criminal cases.
Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No.
25898 on May 16, 2000 in order to determine jurisdictional issues. On June 3,
2000, petitioner filed with the same Division a Motion for Consolidation 19of
Criminal Case No. 25898 with Criminal Case No. 25867, pending before the
First Division. On July 6, 2000, the People filed an Urgent Ex-Parte Motion to
Admit Amended Information20 in Criminal Case No. 25898, which was granted.
Accordingly, the Amended Information dated June 28, 2000 reads as follows:
That on or about and during the period from October 8, 1997 to February 16,
1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
a high ranking officer, being a member of the Governing Board of the National
Book Development Board equated to Board Member II with a salary grade
28 and as such, is accountable for the public funds she received as case advance
in connection with her trip to Spain from October 8-12, 1997, per LBP Check
No. 10188 in the amount of ₱139,199.00, which trip did not materialize, did
then and there willfully, unlawfully and feloniously take, malverse,
misappropriate, embezzle and convert to her own personal use and benefit the
aforementioned amount of ₱139,199.00, Philippine currency, to the damage and
prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.21
In its Resolution dated October 5, 2000, the Third Division ordered the
consolidation of Criminal Case No. 25898 with Criminal Case No. 25867. 22
On October 10, 2000, petitioner filed a Motion to Quash Information,23 averring
that the Sandiganbayan has no jurisdiction to hear Criminal Case No. 25867 as
the information did not allege that she is a public official who is classified as
Grade "27" or higher. Neither did the information charge her as a co-principal,
accomplice or accessory to a public officer committing an offense under the
Sandiganbayan's jurisdiction. She also averred that she is not a public officer or
employee and that she belongs to the Governing Board only as a private sector
representative under R.A. No. 8047, hence, she may not be charged under R.A.
No. 3019 before the Sandiganbayan or under any statute which covers public
officials. Moreover, she claimed that she does not perform public functions and
is without any administrative or political power to speak of – that she is serving
the private book publishing industry by advancing their interest as participant
in the government's book development policy.
In an Order24 dated November 14, 2000, the First Division25 denied the motion
to quash with the following disquisition:
The fact that the accused does not receive any compensation in terms of salaries
and allowances, if that indeed be the case, is not the sole qualification for being
in the government service or a public official. The National Book Development
Board is a statutory government agency and the persons who participated
therein even if they are from the private sector, are public officers to the extent
that they are performing their duty therein as such.
Insofar as the accusation is concerned herein, it would appear that monies were
advanced to the accused in her capacity as Director of the National Book
Development Board for purposes of official travel. While indeed under ordinary
circumstances a member of the board remains a private individual, still when
that individual is performing her functions as a member of the board or when
that person receives benefits or when the person is supposed to travel abroad
and is given government money to effect that travel, to that extent the private
sector representative is a public official performing public functions; if only for
that reason, and not even considering situation of her being in possession of
public funds even as a private individual for which she would also covered by
provisions of the Revised Penal Code, she is properly charged before this Court.
On November 15, 2000, the First Division accepted the consolidation of the
criminal cases against petitioner and scheduled her arraignment on November
17, 2000, for Criminal Case No. 25898. On said date, petitioner manifested that
she is not prepared to accept the propriety of the accusation since it refers to the
same subject matter as that covered in Criminal Case No. 25867 for which the
Sandiganbayan gave her time to file a motion to quash. On November 22, 2000,
petitioner filed a Motion to Quash the Information 26 in Criminal Case No.
25898, by invoking her right against double jeopardy. However, her motion was
denied in open court. She then filed a motion for reconsideration.
On January 17, 2001, the Sandiganbayan issued a Resolution 27 denying
petitioner’s motion with the following disquisition:
The accused is under the jurisdiction of this Court because Sec. 4 (g) of P.D.
1606 as amended so provides, thus:
Sec. 4. Jurisdiction. – The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
xxxx
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations;
xxxx
The offense is office-related because the money for her travel abroad was given
to her because of her Directorship in the National Book Development Board.
Furthermore, there are also allegations to hold the accused liable under Article
222 of the Revised Penal Code which reads:
Art. 222. Officers included in the preceding provisions. – The provisions of this
chapter shall apply to private individuals who, in any capacity whatever, have
charge of any insular, provincial or municipal funds, revenues, or property and
to any administrator or depository of funds or property attached , seized or
deposited by public authority, even if such property belongs to a private
individual.
Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on
the ground of litis pendencia is denied since in this instance, these two
Informations speak of offenses under different statutes, i.e., R.A. No. 3019 and
the Revised Penal Code, neither of which precludes prosecution of the other.
Petitioner hinges the present petition on the ground that the Sandiganbayan has
committed grave abuse of discretion amounting to lack of jurisdiction for not
quashing the two informations charging her with violation of the Anti-Graft
Law and the Revised Penal Code on malversation of public funds. She advanced
the following arguments in support of her petition, to wit: first, she is not a
public officer, and second, she was being charged under two (2) informations,
which is in violation of her right against double jeopardy.
A motion to quash an Information is the mode by which an accused assails the
validity of a criminal complaint or Information filed against him for
insufficiency on its face in point of law, or for defects which are apparent in the
face of the Information.28
Well-established is the rule that when a motion to quash in a criminal case is
denied, the remedy is not a petition for certiorari, but for petitioners to go to
trial, without prejudice to reiterating the special defenses invoked in their
motion to quash. Remedial measures as regards interlocutory orders, such as a
motion to quash, are frowned upon and often dismissed. The evident reason for
this rule is to avoid multiplicity of appeals in a single action.29
The above general rule, however admits of several exceptions, one of which is
when the court, in denying the motion to dismiss or motion to quash, acts
without or in excess of jurisdiction or with grave abuse of discretion, then
certiorari or prohibition lies. The reason is that it would be unfair to require the
defendant or accused to undergo the ordeal and expense of a trial if the court
has no jurisdiction over the subject matter or offense, or is not the court of
proper venue, or if the denial of the motion to dismiss or motion to quash is
made with grave abuse of discretion or a whimsical and capricious exercise of
judgment. In such cases, the ordinary remedy of appeal cannot be plain and
adequate.30
To substantiate her claim, petitioner maintained that she is not a public officer
and only a private sector representative, stressing that her only function among
the eleven (11) basic purposes and objectives provided for in Section 4, R.A.
No. 8047, is to obtain priority status for the book publishing industry. At
the time of her appointment to the NDBD Board, she was the President of the
BSAP, a book publishers association. As such, she could not be held liable for
the crimes imputed against her, and in turn, she is outside the jurisdiction of the
Sandiganbayan.
The NBDB is the government agency mandated to develop and support the
Philippine book publishing industry. It is a statutory government agency created
by R.A. No. 8047, which was enacted into law to ensure the full development
of the book publishing industry as well as for the creation of organization
structures to implement the said policy. To achieve this end, the Governing
Board of the NBDB was created to supervise the implementation. The
Governing Board was vested with powers and functions, to wit:
a) assume responsibility for carrying out and implementing the
policies, purposes and objectives provided for in this Act;
b) formulate plans and programs as well as operational policies and
guidelines for undertaking activities relative to promoting book
development, production and distribution as well as an incentive
scheme for individual authors and writers;
c) formulate policies, guidelines and mechanisms to ensure that
editors, compilers and especially authors are paid justly and
promptly royalties due them for reproduction of their works in any
form and number and for whatever purpose;
d) conduct or contract research on the book publishing industry
including monitoring, compiling and providing data and information
of book production;
 e) provide a forum for interaction among private publishers, and, for
the purpose, establish and maintain liaison will all the segments of
the book publishing industry;
f) ask the appropriate government authority to ensure effective
implementation of the National Book Development Plan;
g) promulgate rules and regulations for the implementation of this
Act in consultation with other agencies concerned, except for
Section 9 hereof on incentives for book development, which shall
be the concern of appropriate agencies involved;
h) approve, with the concurrence of the Department of Budget and
Management (DBM), the annual and supplemental budgets
submitted to it by the Executive director;
i) own, lease, mortgage, encumber or otherwise real and personal
property for the attainment of its purposes and objectives;
j) enter into any obligation or contract essential to the proper
administration of its affairs, the conduct of its operations or the
accomplishment of its purposes and objectives;
k) receive donations, grants, legacies, devices and similar
acquisitions which shall form a trust fund of the Board to accomplish
its development plans on book publishing;
l) import books or raw materials used in book publishing which are
exempt from all taxes, customs duties and other charges in behalf of
persons and enterprises engaged in book publishing and its related
activities duly registered with the board;
m) promulgate rules and regulations governing the matter in which
the general affairs of the Board are to be exercised and amend,
repeal, and modify such rules and regulations whenever necessary;
n) recommend to the President of the Philippines nominees for the
positions of the Executive Officer and Deputy Executive Officer of
the Board;
o) adopt rules and procedures and fix the time and place for holding
meetings: Provided, That at least one (1) regular meeting shall be
held monthly;
p) conduct studies, seminars, workshops, lectures, conferences,
exhibits, and other related activities on book development such as
indigenous authorship, intellectual property rights, use of alternative
materials for printing, distribution and others; and
q) exercise such other powers and perform such other duties as may
be required by the law.31
A perusal of the above powers and functions leads us to conclude that they
partake of the nature of public functions. A public office is the right, authority
and duty, created and conferred by law, by which, for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of the government, to
be exercised by him for the benefit of the public. The individual so invested
is a public officer.32
Notwithstanding that petitioner came from the private sector to sit as a member
of the NBDB, the law invested her with some portion of the sovereign functions
of the government, so that the purpose of the government is achieved. In this
case, the government aimed to enhance the book publishing industry as it has a
significant role in the national development. Hence, the fact that she was
appointed from the public sector and not from the other branches or agencies of
the government does not take her position outside the meaning of a public
office. She was appointed to the Governing Board in order to see to it that the
purposes for which the law was enacted are achieved. The Governing Board
acts collectively and carries out its mandate as one body. The purpose of the
law for appointing members from the private sector is to ensure that they are
also properly represented in the implementation of government objectives to
cultivate the book publishing industry.
Moreover, the Court is not unmindful of the definition of a public officer
pursuant to the Anti-Graft Law, which provides that a public officer includes
elective and appointive officials and employees, permanent or temporary,
whether in the classified or unclassified or exempt service receiving
compensation, even nominal, from the government.33
Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been
elected or appointed to a public office. Petitioner was appointed by the President
to the Governing Board of the NDBD. Though her term is only for a year that
does not make her private person exercising a public function. The fact that she
is not receiving a monthly salary is also of no moment. Section 7, R.A. No.
8047 provides that members of the Governing Board shall receive per diem and
such allowances as may be authorized for every meeting actually attended and
subject to pertinent laws, rules and regulations. Also, under the Anti-Graft Law,
the nature of one's appointment, and whether the compensation one receives
from the government is only nominal, is immaterial because the person so
elected or appointed is still considered a public officer.
On the other hand, the Revised Penal Code defines a public officer as any person
who, by direct provision of the law, popular election, popular election or
appointment by competent authority, shall take part in the performance of
public functions in the Government of the Philippine Islands, or shall perform
in said Government or in any of its branches public duties as an employee,
agent, or subordinate official, of any rank or classes, shall be deemed to be a
public officer.34
Where, as in this case, petitioner performs public functions in pursuance of the
objectives of R.A. No. 8047, verily, she is a public officer who takes part in the
performance of public functions in the government whether as an employee,
agent, subordinate official, of any rank or classes. In fact, during her tenure,
petitioner took part in the drafting and promulgation of several rules and
regulations implementing R.A. No. 8047. She was supposed to represent the
country in the canceled book fair in Spain.
In fine, We hold that petitioner is a public officer. The next question for the
Court to resolve is whether, as a public officer, petitioner is within the
jurisdiction of the Sandiganbayan.
Presently,35 the Sandiganbayan has jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section
2, Title VII, Book II of the Revised Penal Code, where one or more of the
accused are officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of the
commission of the offense:
(1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade "27" and
higher, of the Compensation and Position Classification Act of 989
(Republic Act No. 6758), specifically including:
xxxx
(2) Members of Congress and officials thereof classified as Grade
"Grade '27'" and up under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of
the Constitution;
(4) Chairmen and members of Constitutional Commission, without
prejudice to the provisions of the Constitution; and
 (5) All other national and local officials classified as Grade "Grade
'27'" and higher under the Compensation and Position Classification
Act of 1989.

xxxx

Notably, the Director of Organization, Position Classification and

Compensation Bureau, of the Department of Budget and management provided
the following information regarding the compensation and position
classification and/or rank equivalence of the member of the Governing Board
of the NBDB, thus:

Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is

composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-
officio), and nine (9) Members, four (4) of whom are ex-officio and the
remaining five (5) members represent the private sector. The said five members
of the Board do not receive any salary and as such their position are not
classified and are not assigned any salary grade.

For purposes however of determining the rank equivalence of said positions,

notwithstanding that they do not have any salary grade assignment, the same
may be equated to Board Member II, SG-28.36

Thus, based on the Amended Information in Criminal Case No. 25898,

petitioner belongs to the employees classified as SG-28, included in the phrase
"all other national and local officials classified as ‘Grade 27' and higher under
the Compensation and Position Classification Act of 1989."

Anent the issue of double jeopardy, We can not likewise give in to the
contentions advanced by petitioner. She argued that her right against double
jeopardy was violated when the Sandiganbayan denied her motion to quash the
two informations filed against her.1avvphi1

We believe otherwise. Records show that the Informations in Criminal Case

Nos. 25867 and 25898 refer to offenses penalized by different statues, R.A. No.
3019 and RPC, respectively. It is elementary that for double jeopardy to attach,
the case against the accused must have been dismissed or otherwise terminated
without his express consent by a court of competent jurisdiction, upon valid
information sufficient in form and substance and the accused pleaded to the
charge.37 In the instant case, petitioner pleaded not guilty to the Information for
violation of the Anti-Graft Law. She was not yet arraigned in the criminal case
for malversation of public funds because she had filed a motion to quash the
latter information. Double jeopardy could not, therefore, attach considering that
the two cases remain pending before the Sandiganbayan and that herein
petitioner had pleaded to only one in the criminal cases against her.

It is well settled that for a claim of double jeopardy to prosper, the following
requisites must concur: (1) there is a complaint or information or other formal
charge sufficient in form and substance to sustain a conviction; (2) the same is
filed before a court of competent jurisdiction; (3) there is a valid arraignment or
plea to the charges; and (4) the accused is convicted or acquitted or the case is
otherwise dismissed or terminated without his express consent. 38The third and
fourth requisites are not present in the case at bar.

In view of the foregoing, We hold that the present petition does not fall under
the exceptions wherein the remedy of certiorari may be resorted to after the
denial of one's motion to quash the information. And even assuming that
petitioner may avail of such remedy, We still hold that the Sandiganbayan did
not commit grave abuse of discretion amounting to lack of or in excess of
jurisdiction.

WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and

Order of the Sandiganbayan are AFFIRMED. Costs against petitioner.
G.R. No. 203372 June 16, 2015 office on the same day.23 He took another oath of office on 6 July 2010 as "an
act of extra caution because of the rising crescendo of noise from the new
political mandarins against the so-called 'midnight appointments."'24
ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner,
vs.
OFFICE OF THE PRESIDENT and HON. SOLICITOR GENERAL To summarize, the pertinent dates for each petitioner are as follows:
JOSE ANSELMO I. CADIZ, Respondents.
Issuance of EO 2
Prior to the conduct of the May 2010 elections, then President Gloria
Macapagal-Arroyo (President Macapagal-Arroyo) issued more than 800
On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his
appointments to various positions in several government offices.
oath of office as President of the Republic of the Philippines. On 30 July 2010,
President Aquino issued EO 2 recalling, withdrawing, and revoking
The ban on midnight appointments in Section 15, Article VII of the 1987 appointments issued by President Macapagal-Arroyo which violated the
Constitution reads: constitutional ban on midnight appointments.

Two months immediately before the next presidential elections and up to the The entirety of EO 2 reads:
end of his term, a President or Acting President shall not make appointments,
except temporary appointments to executive positions when continued
EXECUTIVE ORDER NO. 2
vacancies therein will prejudice public service or endanger public safety.

RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS

Thus, for purposes of the 2010 elections, 10 March 2010 was the cutoff date for
ISSUED BY THE PREVIOUS ADMINISTRATION IN VIOLATION OF
valid appointments and the next day, 11 March 2010, was the start of the ban
THE CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS,
on midnight appointments. Section 15, Article VII of the 1987 Constitution
AND FOR OTHER PURPOSES.
recognizes as an exception to the ban on midnight appointments only
"temporary appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety." None of the WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that "Two
petitioners claim that their appointments fall under this exception. months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies
Appointments
therein will prejudice public service or endanger public safety."; WHEREAS,
in the case of "In re: Appointments dated March 30, 1998 of Hon. Mateo
G.R. No. 203372 Valenzuela and Hon. Vallarta as Judges of the Regional Trial Court of Branch
62 of Bago City and Branch 24 of Cabanatuan City, respectively" (A.M. No.
98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to
The paper evidencing Atty. Velicaria-Garafil's appointment as State Solicitor II
mean that the President is neither required to make appointments nor allowed
at the OSG was dated 5 March 2010.13 There was a transmittal letter dated 8
to do so during the two months immediately before the next presidential
March 2010 of the appointment paper from the Office of the President (OP),
elections and up to the end of her term. The only known exceptions to this
but this transmittal letter was received by the Malacañang Records Office
prohibition are (1) temporary appointments in the executive positions when
(MRO) only on 13 May 2010. There was no indication as to the OSG's date of
continued vacancies will prejudice public service or endanger public safety and
receipt of the appointment paper. On 19 March 2010, the OSG's Human
in the light of the recent Supreme Court decision in the case of De Castro, et al.
Resources Department called up Atty. Velicaria-Garafil to schedule her oath-
vs. JBC and PGMA, G.R. No. 191002, 17 March 2010, (2) appointments to the
taking. Atty. Velicaria-Garafil took her oath of office as State Solicitor II on 22
Judiciary;
March 2010 and assumed her position on 6 April 2010.

WHEREAS, Section 261 of the Omnibus Election Code provides that:

G.R. No. 206290

"Section 261. Prohibited Acts.-The following shall be guilty of an election

The paper evidencing Atty. Venturanza's appointment as Prosecutor IV (City
offense:
Prosecutor) of Quezon City was dated 23 February 2010.14 It is apparent,
however, that it was only on 12 March 2010 that the OP, in a letter dated 9
March 2010, transmitted Atty. Venturanza's appointment paper to then (g) Appointments of new employees, creation of new
Department of Justice (DOJ) Secretary Alberto C. Agra. 15 During the period position, promotion, or giving salary increases. - During
between 23 February and 12 March 2010, Atty. Venturanza, upon verbal advice the period of forty-five days before a regular election and
from Malacañang of his promotion but without an official copy of his thirty days before a special election.
appointment paper, secured clearances from the Civil Service Commission
(CSC),16 Sandiganbayan,17 and the DOJ.18 Atty. Venturanza took his oath of
(1) Any head, official or appointing officer of a
office on 15 March 2010, and assumed office on the same day.
government office, agency or instrumentality, whether
national or local, including government-owned or
G.R. No. 209138 controlled corporations, who appoints or hires any new
employee, whether provisional, temporary or casual, or
creates and fills any new position, except upon prior
The paper evidencing Villanueva's appointment as Administrator for Visayas
authority to the Commission. The Commission shall not
of the Board of Administrators of the CDA was dated 3 March 2010. 19 There
grant the authority sought unless it is satisfied that the
was no transmittal letter of the appointment paper from the OP. Villanueva took
position to be filled is essential to the proper functioning
her oath of office on 13 April 2010.
of the office or agency concerned, and that the position
shall not be filled in a manner that may influence the
The paper evidencing Rosquita's appointment as Commissioner, representing election.
Region I and the Cordilleras, of the NCIP was dated 5 March 2010.20 Like
Villanueva, there was no transmittal letter of the appointment paper from the
As an exception to the foregoing provisions, a new
OP. Rosquita took her oath of office on 18 March 2010. G.R. No. 212030
employee may be appointed in the case of urgent need:

The paper evidencing Atty. Tamondong's appointment as member, representing

Provided, however, that notice of the appointment shall
the private sector, of the SBMA Board of Directors was dated 1 March
be given to the Commission within three days from the
2010.21 Atty. Tamondong admitted that the appointment paper was received by
date of the appointment. Any appointment or hiring in
the Office of the SBMA Chair on 25 March 2010 22 and that he took his oath of
violation of this provision shall be null and void.
 (2) Any government official who promotes or gives any
increase of salary or remuneration or privilege to any
government official or employee, including those in
government-owned or controlled corporations.";
WHEREAS, it appears on record that a number of appointments were made on
or about 10 March 2010 in complete disregard of the intent and spirit of the
constitutional ban on midnight appointment and which deprives the new
administration of the power to make its own appointment;
WHEREAS, based on established jurisprudence, an appointment is deemed
complete only upon acceptance of the appointee;
WHEREAS, in order to strengthen the civil service system, it is necessary to
uphold the principle that appointments to the civil service must be made on the
basis of merit and fitness, it is imperative to recall, withdraw, and revoke all
appointments made in violation of the letter and spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers
vested in me by the Constitution as President of the Philippines, do hereby order
and direct that:
SECTION 1. Midnight Appointments Defined. - The following appointments
made by the former President and other appointing authorities in departments,
agencies, offices, and instrumentalities, including government-owned or
controlled corporations, shall be considered as midnight appointments:
(a) Those made on or after March 11, 2010, including all
appointments bearing dates prior to March 11, 2010
where the appointee has accepted, or taken his oath, or
assumed public office on or after March 11, 2010, except
temporary appointments in the executive positions when
continued vacancies will prejudice public service or
endanger public safety as may be determined by the
appointing authority.
(b) Those made prior to March 11, 2010, but to take
effect after said date or appointments to office that would
be vacant only after March 11, 2010.
(c) Appointments and promotions made during the
period of 45 days prior to the May 10, 2010 elections in
violation of Section 261 of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments.
Midnight appointments, as defined under Section 1, are hereby recalled,
withdrawn, and revoked. The positions covered or otherwise affected are hereby
declared vacant.
SECTION 3. Temporary designations. - When necessary to maintain efficiency
in public service and ensure the continuity of government operations, the
Executive Secretary may designate an officer-in-charge (OIC) to perform the
duties and discharge the responsibilities of any of those whose appointment has
been recalled, until the replacement of the OIC has been appointed and
qualified.
SECTION 4. Repealing Clause. - All executive issuances, orders, rules and
regulations or part thereof inconsistent with the provisions of this Executive
Order are hereby repealed or modified accordingly.
SECTION 5. Separability Clause. - If any section or provision of this executive
order shall be declared unconstitutional or invalid, the other sections or
provision not affected thereby shall remain in full force and effect.
SECTION 6. Effectivity. - This Executive order shall take effect immediately.
DONE in the City of Manila, this 30th day of July, in the year Two Thousand
and Ten.
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary25
(Sgd.) BENIGNO S. AQUINO III
Effect of the Issuance of EO 2
G.R. No. 203372
On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor General
(Sol. Gen. Cadiz). On 6 August 2010, Sol. Gen. Cadiz instructed a Senior
Assistant Solicitor General to inform the officers and employees affected by EO
2 that they were terminated from service effective the next day.
Atty. Velicaria-Garafil reported for work on 9 August 2010 without any
knowledge of her termination. She was made to return the office-issued laptop
and cellphone, and was told that her salary ceased as of 7 August 2010. On 12
August 2010, Atty. Velicaria-Garafil was informed that her former secretary at
the OSG received a copy of a memorandum on her behalf. The memorandum,
dated 9 August 2010, bore the subject "Implementation of Executive Order No.
2 dated 30 July 2010" and was addressed to the OSG's Director of Finance and
Management Service.
Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327) before
this Court on 1 September 2010. The petition prayed for the nullification of EO
2, and for her reinstatement as State Solicitor II without loss of seniority, rights
and privileges, and with full backwages from the time that her salary was
withheld.26
G.R. No. 206290
On 1 September 2010, Atty. Venturanza received via facsimile transmission an
undated copy of DOJ Order No. 556. DOJ Order No. 556, issued by DOJ
Secretary Leila M. De Lima (Sec. De Lima), designated Senior Deputy State
Prosecutor Richard Anthony D. Fadullon (Pros. Fadullon) as Officer-in-Charge
of the Office of the City Prosecutor in Quezon City. In a letter to Sec. De Lima
dated 15 September 2010, Atty. Venturanza asked for clarification of his status,
duties, and functions since DOJ Order No. 556 did not address the same. Atty.
Venturanza also asked for a status quo ante order to prevent Pros. Fadullon
·from usurping the position and functions of the City Prosecutor of Quezon
City. Atty. Venturanza also wrote a letter to President Aquino on the same day,
and sought reaffirmation of his promotion as City Prosecutor of Quezon City.
On 6 October 2010, Atty. Venturanza received a letter dated 25 August 2010
from Sec. De Lima which directed him to relinquish the office to which he was
appointed, and to cease from performing its functions.
Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus with
Urgent Prayer for Status Quo Ante Order, Temporary Restraining Order and/or
Preliminary Mandatory Injunction (G.R. No. 193 867) before this Court on 14
October 2010.27
G.R. No. 209138
The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2.
On 3 August 2010, Villanueva and Rosquita sought to intervene in G.R. No.
192991.28 On 1 October 2010, Executive Secretary Paquito N. Ochoa, Jr.
revoked Rosquita's appointment as NCIP Commissioner.29 On 13 October
2010, Villanueva and Rosquita notified this Court that they wanted to intervene
in Atty. Tamondong's petition (G.R. No. 192987) instead.
G.R. No. 212030
Atty. Tamondong was removed from the SBMA Board of Directors on 30 July
2010. He filed a petition for prohibition, declaratory relief and preliminary
injunction with prayer for temporary restraining order (G.R. No. 192987) before
this Court on 9 August 2010. The petition prayed for the prohibition of the
implementation of EO 2, the declaration of his appointment as legal, and the
declaration of EO 2 as unconstitutional.30
Referral to CA
There were several petitions31 and motions for intervention32 that challenged the
constitutionality of EO 2.
On 31 January 2012, this Court issued a Resolution referring the petitions,
motions for intervention, as well as various letters, to the CA for further
proceedings, including the reception and assessment of the evidence from all
parties. We defined the issues as follows:
1. Whether the appointments of the petitioners and intervenors were
midnight appointments within the coverage of EO 2;
2. Whether all midnight appointments, including those of petitioners
and intervenors, were invalid;
3 . Whether the appointments of the petitioners and intervenors were
made with undue haste, hurried maneuvers, for partisan reasons, and
not in accordance with good faith; and
4. Whether EO 2 violated the Civil Service Rules on Appointment.33
This Court gave the CA the authority to resolve all pending matters and
applications, and to decide the issues as if these cases were originally filed with
the CA.
Rulings of the CA
Even though the same issues were raised in the different petitions, the CA
promulgated separate Decisions for the petitions. The CA consistently ruled that
EO 2 is constitutional. The CA, however, issued different rulings as to the
evaluation of the circumstances of petitioners' appointments. In the cases of
Attys. Velicaria-Garafil and Venturanza, the CA stated that the OP should
consider the circumstances of their appointments. In the cases of Villanueva,
Rosquita, and Atty. Tamondong, the CA explicitly stated that · the revocation
of their appointments was proper because they were midnight appointees.
G.R. No. 203372 (CA-G.R. SP No. 123662)
The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31 August
2012. The CA ruled that EO 2 is not unconstitutional. However, the CA relied
on Sales v. Carreon34 in ruling that the OP should evaluate whether Atty.
Velicaria-Garafil's appointment had extenuating circumstances that might make
it fall outside the ambit of EO 2.
The dispositive portion of the CA's Decision reads:
WHEREFORE, the petition for certiorari and mandamus [is] DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioner's appointment as State Solicitor
II at the OSG is hereby referred to the Office of the President which has the sole
authority and discretion to pass upon the same.
SO ORDERED.35
G.R. No. 212030 (CA-G.R. SP No. 123664)
On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP No.
123664. The dispositive portion reads as follows:
WHEREFORE, premises considered, the instant Petition is hereby
DISMISSED. Executive Order No. 2 is hereby declared NOT
UNCONSTITUTIONAL. Accordingly, the revocation of Atty. Eddie
Tamondong's appointment as Director of Subic Bay Metropolitan Authority is
VALID for being a midnight appointment.
SO ORDERED.39
The Issues for Resolution
We resolve the following issues in these petitions: (1) whether petitioners'
appointments violate Section 15, Article VII of the 1987 Constitution, and (2)
whether EO 2 is constitutional. Ruling of the Court
The petitions have no merit. All of petitioners' appointments are midnight
appointments and are void for violation of Section 15, Article VII of the 1987
Constitution. EO 2 is constitutional. Villanueva and Rosquita, petitioners in
G.R. No. 209138, did not appeal the CA's ruling under Rule 45, but instead filed
a petition for certiorari under Rule 65. This procedural error alone warrants an
outright dismissal of G.R. No. 209138. Even if it were correctly filed under
Rule 45, the petition should still be dismissed for being filed out of time.40 There
was also no explanation as to why they did not file a motion for reconsideration
of the CA's Decision. Midnight Appointments
This ponencia and the dissent both agree that the facts in all these cases show
that "none of the petitioners have shown that their appointment papers (and
transmittal letters) have been issued (and released) before the ban."41The dates
of receipt by the MRO, which in these cases are the only reliable evidence of
actual transmittal of the appointment papers by President Macapagal-Arroyo,
are dates clearly falling during the appointment ban. Thus, this ponencia and
the dissent both agree that all the appointments in these cases are midnight
appointments in violation of Section 15, Article VII of the 1987 Constitution.
Constitutionality of EO 2
Based on prevailing jurisprudence, appointment to a government post is a
process that takes several steps to complete. Any valid appointment, including
one made under the exception provided in Section 15, Article VII of the 1987
Constitution, must consist of the President signing an appointee's appointment
paper to a vacant office, the official transmittal of the appointment paper
(preferably through the MRO), receipt of the appointment paper by the
appointee, and acceptance of the appointment by the appointee evidenced by
his or her oath of office or his or her assumption to office.
Aytona v. Castillo (Aytona)42 is the basis for Section 15, Article VII of the 1987
Constitution. Aytona defined "midnight or last minute" appointments for
Philippine jurisprudence.1âwphi1 President Carlos P. Garcia submitted on 29
December 1961, his last day in office, 350 appointments, including that of
Dominador R. Aytona for Central Bank Governor. President Diosdado P.
Macapagal assumed office on 30 December 1961, and issued on 31 December
1961 Administrative Order No. 2 recalling, withdrawing, and cancelling all
appointments made by President Garcia after 13 December 1961 (President
Macapagal's proclamation date). President Macapagal appointed Andres V.
Castillo as Central Bank Governor on 1 January 1962. This Court dismissed
Aytona's quo warranto proceeding against Castillo, and upheld Administrative
Order No. 2's cancellation of the "midnight or last minute" appointments. We
wrote:
x x x But the issuance of 350 appointments in one night and the planned
induction of almost all of them a few hours before the inauguration of the new
President may, with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a mere partisan effort
to fill all vacant positions irrespective of fitness and other conditions, and
thereby to deprive the new administration of an opportunity to make the
corresponding appointments.
x x x Now it is hard to believe that in signing 350 appointments in one night,
President Garcia exercised such "double care" which was required and expected
of him; and therefore, there seems to be force to the contention that these
appointments fall beyond the intent and spirit of the constitutional provision
granting to the Executive authority to issue ad interim appointments.
Under the circumstances above described, what with the separation of powers,
this Court resolves that it must decline to disregard the Presidential
.Administrative Order No. 2, cancelling such "midnight" or "last-minute"
appointments.
Of course the Court is . aware of many precedents to the effect that once an
appointment has been issued, it cannot be reconsidered, specially where the
appointee has qualified. But none of them refer to mass ad interim appointments
(three hundred and fifty), issued in the last hours of an outgoing Chief
Executive, in a setting similar to that outlined herein. On the other hand, the
authorities admit of exceptional circumstances justifying revocation and if any
circumstances justify revocation, those described herein should fit the
exception.
Incidentally, it should be stated that the underlying reason for denying the
power to revoke after the appointee has qualified is the latter's equitable rights.
Yet it is doubtful if such equity might be successfully set up in the present
situation, considering the rush conditional appointments, hurried maneuvers
and other happenings detracting from that degree of good faith, morality and
propriety which form the basic foundation of claims to equitable relief. The
appointees, it might be argued, wittingly or unwittingly cooperated with the
stratagem to beat the deadline, whatever the resultant consequences to the
dignity and efficiency of the public service. Needless to say, there are instances
wherein not only strict legality, but also fairness, justice and righteousness
should be taken into account.43
During the deliberations for the 1987 Constitution, then Constitutional
Commissioner (now retired Supreme Court Chief Justice) Hilario G. Davide,
Jr. referred to this Court's ruling in Aytona and stated that his proposal seeks to
prevent a President, whose term is about to end, from preempting his successor
by appointing his own people to sensitive positions.
MR. DAVIDE: The idea of the proposal is that about the end of the term of the
President, he may prolong his rule indirectly by appointing people to these
sensitive positions, like the commissions, the Ombudsman, the judiciary, so he
could perpetuate himself in power even beyond his term of office; therefore
foreclosing the right of his successor to make appointments to these positions.
We should realize that the term of the President is six years and under what we
had voted on, there is no reelection for him. Yet he can continue to rule the
country through appointments made about the end of his term to these sensitive
positions.44
The 1986 Constitutional Commission put a definite period, or an empirical
value, on Aytona's intangible "stratagem to beat the deadline," and also on the
act of "preempting the President's successor," which shows a lack of "good
faith, morality and propriety." Subject to only one exception, appointments
made during this period are thus automatically prohibited under the
Constitution, regardless of the appointee's qualifications or even of the
President's motives. The period for prohibited appointments covers two months
before the elections until the end of the President's term. The Constitution, with
a specific exception, ended the President's power to appoint "two months
immediately before the next presidential elections." For an appointment to be
valid, it must be made outside of the prohibited period or, failing that, fall under
the specified exception.
The dissent insists that, during the prohibited period, an appointment should be
viewed in its "narrow sense." In its narrow sense, an appointment is not a
process, but is only an "executive act that the President unequivocally exercises
pursuant to his discretion."45 The dissent makes acceptance of the appointment
inconsequential. The dissent holds that an appointment is void if the
appointment is made before the ban but the transmittal and acceptance are made
after the ban. However, the dissent holds that an appointment is valid, or
"efficacious," if the appointment and transmittal are made before the ban even
if the acceptance is made after the ban. In short, the dissent allows an
appointment to take effect during the ban, as long as the President signed and
transmitted the appointment before the ban, even if the appointee never received
the appointment paper before the ban and accepted the appointment only during
the ban.
The dissent's view will lead to glaring absurdities. Allowing the dissent's
proposal that an appointment is complete merely upon the signing of an
appointment paper and its transmittal, excluding the appointee's acceptance
from the appointment process, will lead to the absurdity that, in case of non-
acceptance, the position is considered occupied and nobody else may be
appointed to it. Moreover, an incumbent public official, appointed to another
public office by the President, will automatically be deemed to occupy the new
public office and to have automatically resigned from his first office upon
transmittal of his appointment paper, even if he refuses to accept the new
appointment. This will result in chaos in public service.
Even worse, a President who is unhappy with an incumbent public official can
simply appoint him to another public office, effectively removing him from his
first office without due process. The mere transmittal of his appointment paper
will remove the public official from office without due process and even
without cause, in violation of the Constitution.
The dissent's proferred excuse (that the appointee is not alluded to in Section
15, Article VII) for its rejection of "acceptance by the appointee" as an integral
part of the appointment process ignores the reason for the limitation of the
President's power to appoint, which is .to prevent the outgoing President from
continuing to rule the country indirectly after the end of his term. The 1986
Constitutional Commission installed a definite cut-off date as an objective and
unbiased marker against which this once-in-every-six-years prohibition should
be measured.
The dissent's assertion that appointment should be viewed in its narrow sense
(and is not a process) only during the prohibited period is selective and time-
based, and ignores well-settled jurisprudence. For purposes of complying with
the time limit imposed by the appointment ban, the dissent' s position cuts short
the appointment process to the signing of the appointment paper and its
transmittal, excluding the receipt of the appointment paper and acceptance of
the appointment by the appointee.
The President exercises only one kind of appointing power. There is no need to
differentiate the exercise of the President's appointing power outside, just
before, or during the appointment ban. The Constitution allows the President to
exercise the power of appointment during the period not covered by the
appointment ban, and disallows (subject to an exception) the President from
exercising the power of appointment during the period covered by the
appointment ban. The concurrence of all steps in the appointment process is
admittedly required for appointments outside the appointment ban. There is no
justification whatsoever to remove acceptance as a requirement in the
appointment process for appointments just before the start of the appointment
ban, or during the appointment ban in appointments falling within the
exception. The existence of the appointment ban makes no difference in the
power of the President to appoint; it is still the same power to appoint. In fact,
considering the purpose of the appointment ban, the concurrence of all steps in
the appointment process must be strictly applied on appointments made just
before or during the appointment ban.
In attempting to extricate itself from the obvious consequences of its selective
application, the dissent glaringly contradicts itself:
Thus, an acceptance is still necessary in order for the appointee to validly
assume his post and discharge the functions of his new office, and thus make
the appointment effective. There can never be an instance where the
appointment of an incumbent will automatically result in his resignation from
his present post and his subsequent assumption of his new position; or where
the President can simply remove an incumbent from his current office by
appointing him to another one. I stress that acceptance through oath or any
positive act is still indispensable before any assumption of office may
occur.46 (Emphasis added)
The dissent proposes that this Court ignore well-settled jurisprudence during
the appointment ban, but apply the same jurisprudence outside of the
appointment ban.
[T]he well-settled rule in our jurisprudence, that an appointment is a process
that begins with the selection by the appointing power and ends with acceptance
of the appointment by the appointee, stands. As early as the 1949 case of Lacson
v. Romero, this Court laid down the rule that acceptance by the appointee is the
last act needed to make an appointment complete. The Court reiterated this rule
in the 1989 case of Javier v. Reyes. In the 1996 case of Garces v. Court of
Appeals, this Court emphasized that acceptance by the appointee is
indispensable to complete an appointment. The 1999 case of Bermudez v.
Executive Secretary, cited in the ponencia, affirms this standing rule in our
jurisdiction, to wit:
"The appointment is deemed complete once the last act required of the
appointing authority has been complied with and its acceptance thereafter by
the appointee in order to render it effective."47
The dissent's assertion creates a singular exception to the well-settled doctrine
that appointment is a process that begins with the signing of the appointment
paper, followed by the transmittal and receipt of the appointment paper, and
becomes complete with the acceptance of the appointment. The dissent makes
the singular exception that during the constitutionally mandated ban on
appointments, acceptance is not necessary to complete the appointment. The
dissent gives no reason why this Court should make such singular exception,
which is contrary to the express provision of the Constitution prohibiting the
President from making appointments during the ban. The dissent's singular
exception will allow the President, during the ban on appointments, to remove
from office incumbents without cause by simply appointing them to another
office and transmitting the appointment papers the day before the ban begins,
appointments that the incumbents cannot refuse because their acceptance is not
required during the ban. Adoption by this Court of the dissent's singular
exception will certainly wreak havoc on the civil service.
The following elements should always concur in the making of a valid (which
should be understood as both complete and effective) appointment: (1) authority
to appoint and evidence of the exercise of the authority; (2) transmittal of the
appointment paper and evidence of the transmittal; (3) a vacant position at the
time of appointment; and (4) receipt of the appointment paper and acceptance
of the appointment by the appointee who possesses all the qualifications and
none of the disqualifications. The concurrence of all these elements should
always apply, regardless of when the appointment is made, whether outside,
just before, or during the appointment ban. These steps in the appointment
process should always concur and operate as a single process. There is no valid
appointment if the process lacks even one step. And, unlike the dissent's
proposal, there is no need to further distinguish between an effective and an
ineffective appointment when an appointment is valid.
Appointing Authority
The President's exercise of his power to appoint officials is provided for in the
Constitution and laws.48 Discretion is an integral part in the exercise of the
power of appointment.49 Considering that appointment calls for a selection, the
appointing power necessarily exercises a discretion. According to Woodbury,
J., "the choice of a person to fill an office constitutes the essence of his
appointment," and Mr. Justice Malcolm adds that an "[a]ppointment to office is
intrinsically an executive act involving the exercise of discretion." In
Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court we held:
The power to appoint is, in essence, discretionary. The appointing power has
the right of choice which he may exercise freely according to his judgment,
deciding for himself who is best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the appointing power x x x
x
Indeed, the power of choice is the heart of the power to appoint. Appointment
involves an exercise of discretion of whom to appoint; it is not a ministerial act
of issuing appointment papers to the appointee. In other words, the choice of
the appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an
officer, it (Congress) cannot at the same time limit the choice of the President
to only one candidate. Once the power of appointment is conferred on the
President, such conferment necessarily carries the discretion of whom to
appoint. Even on the pretext of prescribing the qualifications of the officer,
Congress may not abuse such power as to divest the appointing authority,
directly or indirectly, of his discretion to pick his own choice. Consequently,
when the qualifications prescribed by Congress can only be met by one
individual, such enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular restriction on the power
of appointment.50
Transmittal
It is not enough that the President signs the appointment paper. There should be
evidence that the President intended the appointment paper to be issued. It could
happen that an appointment paper may be dated and signed by the President
months before the appointment ban, but never left his locked drawer for the
entirety of his term. Release of the appointment paper through the MRO is an
unequivocal act that signifies the President's intent of its issuance.
The MRO was created by Memorandum Order No. 1, Series of 1958,
Governing the Organization and Functions of the Executive Office and General
Matters of Procedure Therein. Initially called the Records Division, the MRO
functioned as an administrative unit of the Executive Office. Memorandum
Order No. 1 assigned the following functions:
a. Receive, record and screen all incoming correspondence,
telegrams, documents and papers, and
(1) Forward those of a personal and unofficial nature to
the President's Private Office; and
(2) Distribute those requiring action within the Office or
requiring staff work prior to presentation to the President
to the appropriate units within the Office.
b. Follow up on correspondence forwarded to entities outside the
Office to assure that prompt replies are made and copies thereof
furnished the Office.
c. Dispatch outgoing correspondence and telegrams.
d. Have custody of records of the Office, except personal papers of
the President, and keep them in such condition as to meet the
documentary and reference requirements of the Office.
e. Keep and maintain a filing and records system for acts,
memoranda, orders, circulars, correspondence and other documents
affecting the Office for ready reference and use.
f. Issue certified true copies of documents on file in the Division m
accordance with prevailing standard operating procedure.
g. Keep a separate record of communications or documents of
confidential nature.
h. Have custody of the Great Seal of the Republic of the Philippines.
i. Prepare and submit to the approving authority, periodic disposition
schedules of non-current records which have no historical, legal
and/or claim value.
j. With the approval of the Executive Secretary, assist other offices
in the installation or improvement of their records management
system; and
k. Give instructions or deliver lectures and conduct practical training
to in-service trainees from other offices and to students from
educational institutions on records management.51
The Records Division was elevated to an Office in 1975, with the
addition of the following functions:
1. Maintain and control vital documents and essential
records to support the functions of the OP in its day to
day activities;
2. Monitor the flow of communications' from their time
of receipt up to their dispatch;
3. Service the documentary, information and reference
requirements of top management and action officers of
the OP, and the reference and research needs of other
government agencies and the general public;
4. Ensure the proper storage, maintenance, protection
and preservation of vital and presidential documents, and
the prompt disposal of obsolete and valueless records;
 5. Effect the prompt publication/dissemination of laws,
presidential issuances and classified documents;
6. Provide computerized integrated records management
support services for easy reference and retrieval of data
and information; and
7. To be able to represent the OP and OP officials in
response to Subpoena Duces Tecum and Testificandum
served by courts and other investigating bodies.52
For purposes of verification of the appointment paper's existence and
authenticity, the appointment paper must bear the security marks (i.e.,
handwritten signature of the President, bar code, etc.) and must be accompanied
by a transmittal letter from the MRO.
The testimony of Mr. Mariani to Dimaandal, Director IV of the MRO,
underscores the purpose of the release of papers through his office.
Q: What are the functions of the MRO?
A: The MRO is mandated under Memorandum Order No. 1, series of 1958 to
(1) receive, record, and screen all incoming correspondence, telegrams,
documents, and papers; (2) follow up on correspondence forwarded to entities
outside the Office of the President ("OP") to assure that prompt replies are made
and copies thereof furnished the OP; (3) timely dispatch all outgoing documents
and correspondence; (4) have custody of records of the OP, except personal
papers of the President, and keep them in such condition as to meet the
documentary and reference requirements of the Office; (5) keep and maintain a
filing and records system for Acts, Memoranda, Orders, Circulars,
correspondence, and other pertinent documents for ready reference and use; (
6) issue certified copies of documents on file as requested and in accordance
with prevailing standard operating procedures; (7) maintain and control vital
documents and essential records to support the OP in its day-to-day activities;
(8) monitor the flow of communications from the time of receipt up to their
dispatch; and (9) other related functions.
xxxx
Q: As you previously mentioned, the MRO is the custodian of all documents
emanating from Malacañang pursuant to its mandate under Memorandum Order
No. 1, Series of 1958. Is the MRO required to follow a specific procedure in
dispatching outgoing documents?
A: Yes.
Q: Is this procedure observed for the release of an appointment paper signed by
the President? A: Yes. It is observed for the release of the original copy of the
appointment paper signed by the President.
Q: Can you briefly illustrate the procedure for the release of the original copy
of the appointment paper signed by the President?
A: After an appointment paper is signed by the President, the Office of the
Executive Secretary (OES) forwards the appointment paper bearing the stamp
mark, barcode, and hologram of the Office of the President, together with a
transmittal letter, to the MRO for official release. Within the same day, the
MRO sends the original copy of the appointment paper together with the
transmittal letter and a delivery receipt which contains appropriate spaces for
the name of the addressee, the date released, and the date received by the
addressee. Only a photocopy of the appointment is retained for the MRO's
official file.
Q: What is the basis for the process you just discussed?
A: The Service Guide of the MRO.
xxxx
Q: What is the legal basis for the issuance of the MRO Service Guide, if any?
A: The MRO Service Guide was issued pursuant to Memorandum Circular No.
35, Series of 2003 and Memorandum Circular No. 133, Series of 2007.
xxxx
Q: Do you exercise any discretion in the release of documents forwarded to the
MRO for transmittal to various offices?
A: No. We are mandated to immediately release all documents and
correspondence forwarded to us for transmittal.
Q: If a document is forwarded by the OES to the MRO today, when is it
officially released by the MRO to the department or agency concerned?
A: The document is released within the day by the MRO if the addressee is
within Metro Manila. For example, in the case of the appointment paper of
Dindo Venturanza, the OES forwarded to the MRO on March 12, 2010 his
original appointment paper dated February 23, 2010 and the transmittal letter
dated March 9, 2010 prepared by the OES. The MRO released his appointment
paper on the same day or on March 12, 2010, and was also received by the DOJ
on March 12, 2010 as shown by the delivery receipt.
Q: What is the effect if a document is released by an office or department within
Malacañan without going through the MRO?
A: If a document does not pass through the MRO contrary to established
procedure, the MRO cannot issue a certified true copy of the same because as
far as the MRO is concerned, it does not exist in our official records, hence, not
an official document from the Malacañang. There is no way of verifying the
document's existence and authenticity unless the document is on file with the
MRO even if the person who claims to have in his possession a genuine
document furnished to him personally by the President. As a matter of fact, it is
only the MRO which is authorized to issue certified true copies of documents
emanating from Malacañan being the official custodian and central repository
of said documents. Not even the OES can issue a certified true copy of
documents prepared by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called "gatekeeper" of the Malacañang Palace.
All incoming and outgoing documents and correspondence must pass through
the MRO. As the official custodian, the MRO is in charge of the official release
of documents.
Q: What if an appointment paper was faxed by the Office of the Executive
Secretary to the appointee, is that considered an official release by the MRO?
A: No. It is still the MRO which will furnish the original copy of the
appointment paper to the appointee. That appointment paper is, at best, only an
"advanced copy."
Q: Assuming the MRO has already received the original appointment paper
signed by the President together with the transmittal letter prepared by the OES,
you said that the MRO is bound to transmit these documents immediately, that
is, on the same day?
A: Yes.
Q: Were there instances when the President, after the original appointment
paper has already been forwarded to the MRO, recalls the appointment and
directs the MRO not to transmit the documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the MRO, was there
any instance when it was directed to recall the appointment and retrieve the
documents already transmitted? A: Yes, but only in a few instances. Sometimes,
when the MRO messenger is already in transit or while he is already in the
agency or office concerned, we get a call to hold the delivery. Q: You previously
outlined the procedure governing the transmittal of original copies of
appointment papers to the agency or office concerned. Would you know if this
procedure was followed by previous administrations?
A: Yes. Since I started working in the MRO in 1976, the procedure has been
followed. However, it was unusually disregarded when the appointments
numbering more than 800 were made by then President Arroyo in March 2010.
The MRO did not even know about some of these appointments and we were
surprised when we learned about them in the newspapers.
Q: You mentioned that then President Arroyo appointed more than 800 persons
in the month of March alone. How were you able to determine this number?
A: My staff counted all the appointments made by then President An-oyo within
the period starting January 2009 until June 2010.
Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments made by then President
Arroyo in the month of March 2010 compared to the other months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certification showing these statistics and the graphical
representation thereof.
Q: If those documents will be shown to you, will you be able to recognize them?
A: Yes.
Q: I am showing you a Certification containing the number of presidential
appointees per month since January 2009 until June 2010, and a graphical
representation thereof. Can you go over these documents and tell us the relation
of these documents to the ones you previously mentioned?
A: These are [sic] the Certification with the table of statistics I prepared after
we counted the appointments, as well as the graph thereof.
xxxx
Q: Out of the more than 800 appointees made in March 2010, how many
appointment papers and transmittal letters were released through the MRO?
A: Only 133 appointment papers were released through the MRO.
Q: In some of these transmittal letters and appointment papers which were not
released through the MRO but apparently through the OES, there were portions
on the stamp of the OES which supposedly indicated the date and time it was
actually received by the agency or office concerned but were curiously left
blank, is this regular or irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery receipt attached
to the transmittal letter is filled out completely because the dates when the
original appointment papers were actually received are very material. It is a
standard operating procedure for the MRO personnel to ask the person receiving
the documents to write his/her name, his signature, and the date and time when
he/she received it.
Q: So, insofar as these transmittal letters and appointment papers apparently
released by the OES are concerned, what is the actual date when the agency or
the appointee concerned received it?
A: I cannot answer. There is no way of knowing when they were actually
received because the date and time were deliberately or inadvertently left blank.
Q: Can we say that the date appearing on the face of the transmittal letters or
the appointment papers is the actual date when it was released by the OES?
A: We cannot say that for sure. That is why it is very unusual that the person
who received these documents did not indicate the date and time when it was
received because these details are very important.53
The MRO's exercise of its mandate does not prohibit the President or the
Executive Secretary from giving the appointment paper directly to the
appointee. However, a problem may arise if an appointment paper is not coursed
through the MRO and the appointment paper is lost or the appointment is
questioned. The appointee would then have to prove that the appointment paper
was directly given to him.
Dimaandal's counsel made this manifestation about petitioners' appointment
papers and their transmittal:
Your Honors, we respectfully request for the following markings to be made:
1. A) The Transmittal Letter pertinent to the appointment of
petitioner DINDO VENTURANZA dated March 9, 2010 as Exhibit
"2-F" for the respondents;
B) The delivery receipt attached in front of the letter
bearing the date March 12, 2010 as Exhibit "2-F-l";
C) The Appointment Paper of DINDO VENTURANZA
dated February 23, 2010 as Exhibit "2-G" for the
respondents;
2. A) The Transmittal Letter pertinent to the appointment of
CHELOY E. VELICARIA-GARAFIL turned over to the MRO on
May 13, 2010 consisting of seven (7) pages as Exhibits "2-H," "2-
H-l," "2-H-2," "2-H-3," "2-H-4," "2-H-5," and "2-H-6" respectively
for the respondents;
i. The portion with the name "CHELOY E.
VELICARIAGARAFIL" as "State Solicitor
II, Office of the Solicitor General" located on
the first page of the letter as Exhibit "2-H-7;"
ii. The portion rubber stamped by the Office
of the Executive Secretary located at the back
of the last page of the -letter showing receipt
by the DOJ with blank spaces for the date and
time when it was actually received as Exhibit
"2-H-8;"
B) The Appointment Paper of CHELOY E.
VELICARIA-GARAFIL dated March 5, 2010 as Exhibit
"2-I" for the respondents;
xxxx
4. A) The Transmittal Letter pertinent to the appointment of EDDIE
U. TAMONDONG dated 8 March 2010 but turned over to the MRO
only on May 6, 2010 consisting of two (2) pages as Exhibits "2-L"
and "2-L-l" respectively for the respondents;
(a) The portion with the name "EDDIE U.
TAMONDONG" as "Member, representing the Private
Sector, Board of Directors" as Exhibit "2-L-2";
(b) The portion rubber stamped by the Office of the
Executive Secretary located at the back of the last page
of the letter showing receipt by Ma. Carissa O. Coscuella
 with blank spaces for the date and time when it was
actually received as Exhibit "2-L-3";
xxxx
8. A) The Transmittal Letter pertinent to the
appointments of x x x FRANCISCA BESTOYONG-
ROSQUITA dated March 8, 2010 but turned over to the
MRO on May 13, 2010 as Exhibit "2-T" for the
respondents;
xxxx
(c) The portion with the name "FRANCISCA
BESTOYONGROSQUIT A" as "Commissioner,
Representing Region I and the Cordilleras" as Exhibit "2-
T-3·"
(d) The portion rubber stamped by the Office of the
Executive Secretary at the back thereof showing receipt
by Masli A. Quilaman of NCIP-QC on March 15, 2010
as Exhibit "2-T-4;"
xxxx
D) The Appointment Paper of FRANCISCA
BESTOYONGROSQUIT A dated March 5, 2010 as Exhibit "2-W"
for the respondents;
9. A) The Transmittal Letter pertinent to the appointment of IRMA
A. VILLANUEVA as Administrator for Visayas, Board of
Administrators, Cooperative Development Authority, Department
of Finance dated March 8, 2010 as Exhibit "2-X" for the
respondents;
(a) The portion rubber stamped by the Office of the
Executive Secretary at the back thereof showing receipt
by DOF with blank spaces for the date and time when it
was actually received as Exhibit "2-X-1 ;"
B) The Appointment Paper of IRMA A. VILLANUEVA dated
March 3, 2010 as Exhibit "2-Y" for the respondents.54
The testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance
and Retrieval Division of the MRO, supports Dimaandal's counsel's
manifestation that the transmittal of petitioners' appointment papers is
questionable.
Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as State
Solicitor II of the Office of the Solicitor General, was her appointment paper
released through the MRO?
A: No. Her appointment paper dated March 5, 2010, with its corresponding
transmittal letter, was merely turned over to the MRO on May 13, 2010. The
transmittal letter that was turned over to the MRO was already stamped
"released" by the Office of the Executive Secretary, but the date and time as to
when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Eddie U. Tamondong, who was appointed as member of the
Board of Directors of Subic Bay Metropolitan Authority, was her [sic]
appointment paper released through the MRO?
A: No. His appointment paper dated March 1, 2010, with its corresponding
transmittal letter, was merely turned over to the MRO on May 6, 2010. The
transmittal letter that was turned over to the MRO was already stamped
"released" by the Office of the Executive Secretary, but the date and time as to
when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Francisca Bestoyong-Resquita who was appointed as
Commissioner of the National Commission on Indigenous Peoples,
representing Region 1 and the Cordilleras, was her appointment paper released
thru the MRO?
A: No. Her appointment paper dated March 5, 2010, with its corresponding
transmittal letter, was merely turned over to the MRO on May 13, 2010. The
transmittal letter that was turned over to the MRO was already stamped
"released" by the Office of the Executive Secretary and received on March 15,
2010.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Irma A. Villanueva who was appointed as Administrator for
Visayas of the Cooperative Development Authority, was her appointment paper
released thru the MRO?
A: No. Her appointment paper dated March 3, 2010, with its corresponding
transmittal letter, was merely turned over to the MRO on May 4, 2010. The
transmittal letter that was turned over to the MRO was already stamped
"released" by the Office of the Executive Secretary, but the date and time as to
when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MR0. 55
The possession of the original appointment paper is not indispensable to
authorize an appointee to assume office. If it were indispensable, then a loss of
the original appointment paper, which could be brought about by negligence,
accident, fraud, fire or theft, corresponds to a loss of the office.56 However, in
case of loss of the original appointment paper, the appointment must be
evidenced by a certified true copy issued by the proper office, in this case the
MRO. Vacant Position
An appointment can be made only to a vacant office. An appointment cannot
be made to an occupied office. The incumbent must first be legally removed, or
his appointment validly terminated, before one could be validly installed to
succeed him.57
To illustrate: in Lacson v. Romero,58 Antonio Lacson (Lacson) occupied the
post of provincial fiscal of Negros Oriental. He was later nominated and
confirmed as provincial fiscal of Tarlac. The President nominated and the
Commission on Appointments confirmed Honorio Romero (Romero) as
provincial fiscal of Negros Oriental as Lacson's replacement. Romero took his
oath of office, but Lacson neither accepted the appointment nor assumed office
as provincial fiscal of Tarlac. This Court ruled that Lacson remained as
provincial fiscal of Negros Oriental, having declined the appointment as
provincial fiscal of Tarlac. There was no vacancy to which Romero could be
legally appointed; hence, Romero's appointment as provincial fiscal ofNegros
Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial fiscal to be (G.R. No. 212030) are declared VOID. We DECLARE that Executive Order
complete involves several steps. First, comes the nomination by the President. No. 2 dated 30 July 2010 is VALID and CONSTITUTIONAL.
Then to make that nomination valid and permanent, the Commission on
Appointments of the Legislature has to confirm said nomination. The last step
is the acceptance thereof by the appointee by his assumption of office. The first
two steps, nomination and confirmation, constitute a mere offer of a post. They
are acts of the Executive and Legislative departments of the Government. But
the last necessary step to make the appointment complete and effective rests
solely with the appointee himself. He may or he may not accept the appointment
or nomination. As held in the case of Borromeo vs. Mariano, 41 Phil. 327, "there
is no power in this country which can compel a man to accept an office."
Consequently, since Lacson has declined to accept his appointment as
provincial fiscal of Tarlac and no one can compel him to do so, then he
continues as provincial fiscal of Negros Oriental and no vacancy in said office
was created, unless Lacson had been lawfully removed as such fiscal of Negros
Oriental.59

Paragraph (b ), Section 1 of EO 2 considered as midnight appointments those

appointments to offices that will only be vacant on or after 11 March 2010 even
though the appointments are made prior to 11 March 2010. EO 2 remained
faithful to the intent of Section 15, Article VII of the 1987 Constitution: the
outgoing President is prevented from continuing to rule the country indirectly
after the end of his term.

Acceptance by the Qualified Appointee

Acceptance is indispensable to complete an appointment. Assuming office and

taking the oath amount to acceptance of the appointment.60 An oath of office is
a qualifying requirement for a public office, a prerequisite to the full investiture
of the office.61

Javier v. Reyes62 is instructive in showing how acceptance is indispensable to

complete an appointment. On 7 November 1967, petitioner Isidro M. Javier
(Javier) was appointed by then Mayor Victorino B. Aldaba as the Chief of
Police of Malolos, Bulacan. The Municipal Council confirmed and approved
Javier's appointment on the same date. Javier took his oath of office on 8
November 1967, and subsequently discharged the rights, prerogatives, and
duties of the office. On 3 January 1968, while the approval of Javier's
appointment was pending with the CSC, respondent Purificacion C. Reyes
(Reyes), as the new mayor of Malolos, sent to the . CSC a letter to recall Javier's
appointment. Reyes also designated Police Lt. Romualdo F. Clemente as
Officer-in-Charge of the police department. The CSC approved Javier's
appointment as permanent on 2 May 1968, and even directed Reyes to reinstate
Javier. Reyes, on the other hand, pointed to the appointment of Bayani Bernardo
as Chief of Police of Malolos, Bulacan on 4 September 1967. This Court ruled
that Javier's appointment prevailed over that of Bernardo. It cannot be said that
Bernardo accepted his appointment because he never assumed office or took his
oath.

Excluding the act of acceptance from the appointment process leads us to the
very evil which we seek to avoid (i.e., antedating of appointments). Excluding
the act of acceptance will only provide more occasions to honor the
Constitutional provision in the breach. The inclusion of acceptance by the
appointee as an integral part of the entire appointment process prevents the
abuse of the Presidential power to appoint. It is relatively easy to antedate
appointment papers and make it appear that they were issued prior to the
appointment ban, but it is more difficult to simulate the entire appointment
process up until acceptance by the appointee.

Petitioners have failed to show compliance with all four elements of a valid
appointment. They cannot prove with certainty that their appointment papers
were transmitted before the appointment ban took effect. On the other hand,
petitioners admit that they took their oaths of office during the appointment ban.

Petitioners have failed to raise any valid ground for the Court to declare EO 2,
or any part of it, unconstitutional. Consequently, EO 2 remains valid and
constitutional.

WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030 are
DENIED, and the petition in G.R. No. 209138 is DISMISSED. The
appointments of petitioners Atty. Cheloy E. Velicaria-Garafil (G.R. No.
203372), Atty. Dindo G. Venturanza (G.R. No. 206290), Irma A. Villanueva,
and Francisca B. Rosquita (G.R. No. 209138), and Atty. Eddie U. Tamondong
G.R. No. 185112 January 18, 2010
DEPARTMENT OF LABOR AND EMPLOYMENT (DOLE) and
NATIONAL MARITIME POLYTECHNIC (NMP),Petitioners,
vs.
RUBEN Y. MACEDA Respondent.
On June 28, 1989 respondent Ruben Y. Maceda, a deck marine officer, joined
the National Maritime Polytechnic (NMP), a government school, with a
permanent appointment as Instructor I. He rose to the permanent positions of
Assistant Professor I and later Associate Professor I. He studied law in the
meantime and passed the bar in 1996. He was later designated as Officer-in-
Charge (OIC) of the Maritime Training Division and as NMP’s legal counsel.
In 1998, the NMP again promoted respondent Maceda to the rank of Professor
I but this time under a mere temporary appointment. He subsequently wrote the
NMP Executive Director, submitting justifications for changing his temporary
status to a permanent one. In 1999 the International Maritime Law sponsored
his studies in the IMO-International Maritime Law Institute in Malta. He
finished his master’s degree in 2000. He later developed a module in maritime
law for Marine Officers of the NMP and started teaching the subject in May
2004.
Yearly, from January 7, 2000 to January 7, 2003, the NMP renewed respondent
Maceda’s temporary appointment as Professor I. In 2001 he resigned from his
position as NMP legal counsel. In 2002 the NMP completed the revision of the
Qualification Standard (QS) for its staff. Maceda claimed, however, that
nothing has since been heard of that revised QS after the NMP submitted the
same to the CSC for approval.
On February 13, 2003 the Human Resources Management Section of NMP
wrote respondent Maceda, advising him that the school would be putting him
under contractual employment from January 7 to June 30, 2003 or until such
time as the CSC shall have already approved the NMP Maritime Training
Revised Qualification Standard.
On March 20, 2003 the NMP Executive Director, Noriel Devanadera, wrote
respondent Maceda, informing him that his temporary appointment as Professor
I was being renewed effective on April 1, 2003 and that the succeeding renewal
of his appointment would be subject to his meeting the requirements of the
position. The NMP considered Maceda first priority for the Shipboard Rotation
Scheme for 2003 and for holding the 3rd Officer position on board ship. He
answered the letter, making a number of requests, so he could avail of the
Shipboard Rotation Scheme. But the NMP did not act on his letter.
Meanwhile, Maceda applied from 2001 to 2003 for the position of
Administrative Officer V which then remained vacant. But an OIC was instead
appointed to that position.
In 2001 the NMP advised all employees occupying next-in-rank positions to the
Deputy Executive Director (DED) III to submit their updated Personal Data
Sheets (PDS) for evaluation as candidates to that position until May 15, 2001.
On May 28, 2001 Maceda belatedly submitted his updated PDS for evaluation.
On December 23, 2003, the NMP OIC wrote respondent Maceda, informing
him that his appointment as Professor I would be renewed on contractual status
effective from January 5 to June 30, 2004. Maceda agreed and signed a contract
of employment on January 5, 2004. On the same date, however, Maceda filed a
complaint with the CSC regarding his demotion in employment status. The
Administrative Officer of the CSC regional office convinced him, however, that
the renewal of the appointments of temporary employees is a prerogative of the
head of the agency.
On June 30, 2004 the NMP OIC informed respondent Maceda that, on
instructions from Devanadera, he was not to report for work anymore on the
following day. On July 13, 2004, however, Devanadera asked Maceda to be a
guest lecturer in Maritime Law, thus acknowledging the need for his services
and his expertise on the subject.
On June 2, 2004 respondent Maceda wrote to the members of the Board of
Trustees of NMP about his illegal termination as professor and Devanadera’s
mismanagement of the school’s affairs. Further, Maceda charged Devanadera
and NMP before the Department of Labor and Employment (DOLE) of
oppression leading to his illegal termination. On October 21, 2004, the DOLE
Secretary dismissed his complaint.
On November 2, 2004 respondent Maceda appealed his case to the CSC but the
latter dismissed the same for lack of jurisdiction, pointing out that, since
Devanadera was a presidential appointee, the power to discipline him belonged
to the President. Maceda filed a motion for reconsideration but on March 7,
2007 the CSC denied the same. The CSC held that, as a holder of a temporary
and contractual employment, Maceda did not enjoy security of tenure. The CSC
further held that it was his fault that he did not take steps to remedy his
deficiency, namely, a shipboard experience on license, after holding the
position of Professor I for five years. This prompted Maceda to seek recourse
by special civil action of certiorari with the Court of Appeals (CA) in CA-G.R.
SP 99539.
On May 28, 2008 the CA rendered a decision, granting the petition, ordering
the NMP to reinstate Maceda to his previous position as Professor I, and
directing it to pay his salary and other benefits from July 1, 2004 until he is
reinstated. The DOLE and the NMP moved for reconsideration of the decision
but the CA denied the same, hence, this petition.
The Issues Presented
Petitioners raise two issues for this Court’s resolution:
1. Whether or not the CA correctly gave due course to Maceda’s
special civil action of certiorari for the correction of the alleged
errors in the rulings of the CSC; and
2. Whether or not the NMP illegally terminated Maceda from
employment as professor.
The Rulings of the Court
One. The CA ruled that there was nothing novel about a petition for certiorari
being filed with that court when the act or omission complained of involved
grave abuse of discretion or excess of jurisdiction. This Court must disagree.
In determining whether the proper remedy is a special civil action
for certiorari or a petition for review, it is not so much the nature of the question
or questions that would be raised that matters. With very rare exceptions, what
is decisive is whether or not the challenged order is a final order that disposes
of the merit of the case.1
The Court held in Metropolitan Manila Development Authority v. Jancom
Environmental Corp.2 that the remedy for seeking the reversal or modification
of a judgment rendered on the merits of the case is appeal. This is true even if
the error imputed to the officer, body, or tribunal constitutes alleged lack of
jurisdiction over the subject matter of the case or grave abuse of discretion in
making its or his findings of fact or of law. The Court cannot countenance the
blurring of the distinction between a special civil action for certiorari and a
petition for review.3
Besides, it cannot be said that the CSC gravely abused its discretion in
dismissing respondent Maceda’s complaint. Grave abuse of discretion exists
where the public respondent acts in a manner so patent and gross that it amounts
to an evasion of a positive duty or a virtual refusal to do what the law enjoins
on him. It is not sufficient that the CA disagreed with the findings of the CSC
or considered them in error; it had to determine that the CSC’s findings had run
berserk, prompted by passion and personal hostility rather than by reason. 4 The
CA did not make this determination.
Two. At any rate, even if the Court were to disregard the important distinction
between a special civil action of certiorari and a petition for review, it still
cannot uphold the CA’s decision. For instance, it points out that the NMP
ignored Maceda’s solid work, expertise, and experience when it said that he was
not qualified to become a permanent professor. But Maceda’s so-called
accomplishments cannot count for much where, as in this case, they do not in
fact meet the uniform standards set by the school for its permanent professors.
Nor can it be said that the NMP did not give respondent Maceda sufficient
leeway to meet those standards. The CA’s finding that the NMP disregarded
Maceda’s request5 that he be allowed to avail himself of the school’s training
privileges, so he could comply with the requirements of the Shipboard Rotation
Scheme, is not supported by evidence. Devanadera approved Maceda’s request
through his OED Memorandum Order 303-20036 dated August 5, 2003.
Maceda simply did not avail himself of the school’s Shipboard Rotation
Scheme nor submit the papers needed under that program.

The CA also faults the NMP for not appointing Maceda as Administrative
Officer V or DED III if he could not be given a permanent appointment as
professor. But the power to appoint rests essentially on free choice. The
appointing authority has the right to decide who best fits the job from among
those who meet the minimum requirements for it. As an outsider, quite remote
from the day-to-day problems of a government agency such as NMP, no court
of law can presume to have the wisdom needed to make a better judgment
respecting staff appointments.7

Lastly, the CA assumed the power and discretion to declare Maceda’s 15 years
of teaching experience sufficient compliance with the "shipboard experience on
license" requirement of the NMP. But under the relevant NMP QS then in force,
a Professor I, who was a Marine Merchant Officer with a rank of a 3rd Mate
Officer, must possess a two-year sea experience (on license) and three years of
teaching experience.8 Maceda had sufficient teaching experience but he did not
have the required shipboard experience. In fact, he did not board any vessel as
a licensed 3rd Mate Officer.

The records show that, despite the repeated efforts of the NMP Human
Resource Management Section to get him on board, respondent Maceda still
did not bother to complete the required shipboard experience. 9 Because of this,
the NMP could only give him temporary appointment that did not provide any
security of tenure.10 Such appointment is of course terminable at the pleasure of
the appointing power with or without a cause.11

Maceda contends that the NMP demoted him from a temporary to a contractual
position. But, as both the DOLE and the CSC uniformly held, no such demotion
took place since a contractual appointment is of the same nature as a temporary
appointment. Thus, when the NMP did not further renew Maceda’s contractual
appointment, the same cannot be regarded as a dismissal but an expiration of
his term.12

The Court acknowledges respondent Maceda’s numerous achievements here

and abroad as well as his part in teaching Filipino seafarers. But these cannot
replace the need for him to meet the prescribed qualification standard for the
position of Professor I.13 Such standard is a mix of the formal education,
experience, training, civil service eligibility, physical health, and attitude that
the job requires.14 They need to be met by those who seek the position. Maceda
did not.

ACCORDINGLY, the Court GRANTS the petition, REVERSES the decision

dated May 28, 2008 and resolution dated October 29, 2008 of the Court of
Appeals in CA-G.R. SP 99539, and REINSTATES Resolution 070433 dated
March 7, 2007 of the Civil Service Commission.
G.R. No. 104639 July 14, 1995 3) to pay the costs.

PROVINCE OF CAMARINES SUR through its GOVERNOR, SO ORDERED.2

SANGGUNIANG PANLALAWIGAN and PROVINCIAL
TREASURER, petitioner,
In due course, petitioner Province of Camarines Sur appealed the said decision
vs.
to the Court of Appeals.
COURT OF APPEALS and TITO B. DATO, respondent.

On February 20, 1992, respondent Court of Appeals rendered its decision which
On January 1, 1960, private respondent Tito Dato was appointed as Private
dispositively reads as follows:
Agent by the then governor of Camarines Sur, Apolonio Maleniza.

WHEREFORE, in view of all the foregoing, judgment

On October 12, 1972, he was promoted and was appointed Assistant Provincial
appealed from is hereby AFFIRMED with the following
warden by then Governor Felix Alfelor, Sr. Because he had no civil service
modifications: (1) respondents are ordered to pay the
eligibility for the position he was appointed to, private respondent Tito Dato
backwages of petitioner Tito B. Dato during the entire
could not be legally extended a permanent appointment. Hence, what was
period of his suspension, with all the rights and
extended to him was only a temporary appointment. Thereafter, the temporary
privileges that he is entitled to as a regular government
appointment was renewed annually.
employee reaching the age of 65 in the government
service, as provided by law; and (2) the award of the sum
On January 1, 1974, Governor Alfelor approved the change in Dato's of P5,000 to petitioner as attorney's fees and respondents
employment status from temporary to permanent upon the latter's representation to pay the costs of suit is deleted.
that he passed the civil service examination for supervising security guards.
Said change of status however, was not favorably acted upon by the Civil
IT IS SO ORDERED.3
Service Commission (CSC) reasoning that Tito Dato did not possess the
necessary civil service eligibility for the office he was appointed to. His
appointment therefore remained temporary. Aggrieved by the foregoing ruling, petitioner Province of Camarines Sur
interposed the present petition submitting that the respondent court erred in (a)
affirming the trial court's finding that private respondent Tito Dato was its
Thereafter, no other appointment was extended to him.
permanent employee at the time he was suspended on March 16, 1976; and (b)
modifying the said decision so as to allow private respondent to claim
On March 16, 1976, private respondent Tito Dato was indefinitely suspended backwages for the entire period of his suspension.
by Governor Alfelor after criminal charges were filed against him and a prison
guard for allegedly conniving and/or consenting to evasion of sentence of some
The primary question to be resolved in the instant case is whether or not private
detention prisoners who escaped from confinement.
respondent Tito Dato was a permanent employee of petitioner Province of
Camarines Sur at the time he was suspended on March 16, 1976.
On March 19, 1976, or two years after the request for change of status was
made, Mr. Lope B. Rama, head of the Camarines Sur Unit of the Civil Service
Petitioner contends that when Governor Alfelor recommended to CSC the
Commission, wrote the Governor of Camarines Sur a letter informing him that
change in the employment status of private respondent from temporary to
the status of private respondent Tito Dato has been changed from temporary to
permanent, which the CSC approved as only temporary pending validation of
permanent, the latter having passed the examination for Supervising Security
the results of private respondent's examination for supervising security guard,
Guard. The change of status was to be made retroactive to June 11, 1974, the
private respondent's appointment in effect remained temporary. Hence, his
date of release of said examination.
subsequent qualification for civil service eligibility did not ipso facto convert
his temporary status to that of permanent.
In the meantime, the Sangguniang Panlalawigan, suppressed the appropriation
for the position of Assistant Provincial Warden and deleted private respondent's
Private respondent, on his part, vigorously asseverates that the respondent court
name from the petitioner's plantilla.
committed no error in confirming his appointment as permanent.

Private respondent Tito Dato was subsequently acquitted of the charges against
him. Consequently, he requested the Governor for reinstatement and
backwages.
When his request for reinstatement and backwages was not heeded, private
respondent Tito Dato filed an action for mandamus before the Regional Trial
Court of Pili, Camarines Sur, Branch 31.
On May 31, 1991, the trial court 1 rendered judgment, the decretal portion of
which reads:
WHEREFORE, judgment is hereby rendered, ordering
the respondents:
We agree with the petitioner.
Private respondent does not dispute the fact that at the time he was appointed
Assistant Provincial Warden on January 1, 1974, he had not yet qualified in an
appropriate examination for the aforementioned position. Such lack of a civil
service eligibility made his appointment temporary4 and without a fixed and
definite term and is dependent entirely upon the pleasure of the appointing
power.5 The fact that private respondent obtained civil service eligibility later
on is of no moment as his having passed the supervising security guard
examination, did not ipso facto convert his temporary appointment into a
permanent one.6 In cases such as the one at bench, what is required is a new
appointment since a permanent appointment is not a continuation of the
temporary appointment — these are two distinct acts of the appointing
authority.7

1) to appropriate and pay the back salaries of the

It is worthy to note that private respondent rests his case entirely on the letter
petitioner Tito B. Dato equivalent to five (5) years
dated March 19, 1976 communicated by Mr. Lope Rama to the Governor of
without qualification or deduction, at the rate of
Camarines Sur. The letter, which is self-explanatory, is reproduced in full
P14,532.00 per annum, with all the rights and privileges
below:
that he is entitled to as a regular government employee
reaching the age of 65 in the government service, as
provided by law; XXXXXXXXXXXX
CAMARINES SUR UNIT
Naga City
2) to pay the petitioner the sum of P5,000.00 as attorney's
fees; and
 Re: DATO, Tito
— Appointment of

March 19, 1976

The Honorable
The Provincial Governor of Camarines Sur
Naga City.

Sir:

This refers to the latest approved appointment of Mr.

TITO DATO as Asst. Provincial Warden, this province,
at P3600, effective January 1, 1974 which was approved
by this Office as temporary pending validation of his
Supervising Security Guard eligibility.

It appears, however, that the aforementioned eligibility

of Mr. Dato was released on June 11, 1974. In this
connection, attention is being invited to Sec. 19, Rule III
of the Rules on Personnel Action and Policies which
provides that "Eligibility resulting from civil service
examination . . . shall be effective on the date on the
release of the results of the examination. . . ." (Emphasis
supplied.) Mr. Dato's Supervising Security Guard
eligibility, therefore, takes effect June 11, 1974, the date
the results thereof was released.

In view thereof, the aforementioned appointment of Mr.

Dato is hereby approved anew as follows: "APPROVED
as temporary under Sec. 24 (c), R.A. 2260, as
amended, effective January 1, 1974 up to June 10,
1974 and as permanent under Sec. 24 (b), R.A. 2260, as
amended, subject to the report on his physical and
medical examination as to insurability, effective June 11,
1974. The Supervising Security Guard eligibility of Mr.
Dato has been validated by the Civil Service
Commission, Quezon City.

The records of Mr. Dato in this Office have been

amended accordingly.

The foregoing is a clear arrogation of power properly belonging to the

appointing authority. Time and again, the Court has defined the parameters
within which the power of approval of appointments shall be exercised by the
Civil Service Commission. In Luego v. Civil Service Commission,9 the Court
ruled that CSC has the power to approve or disapprove an appointment set
before it. It does not have the power to make the appointment itself or to direct
the appointing authority to change the employment status of an employee. The
CSC can only inquire into the eligibility of the person chosen to fill a position
and if it finds the person qualified it must so attest. If not, the appointment must
be disapproved. The duty of the CSC is to attest appointments 10 and after that
function is discharged, its participation in the appointment process ceases. 11 In
the case at bench, CSC should have ended its participation in the appointment
of private respondent on January 1, 1974 when it confirmed
the temporary status of the latter who lacked the proper civil service eligibility.
When it issued the foregoing communication on March 19, 1976, it stepped on
the toes of the appointing authority, thereby encroaching on the discretion
vested solely upon the latter.

Moreover, the Court is not prepared to accord said letter 12 any probative value,
the same being merely a purported photocopy of the alleged letter, initialed and
not even signed by the proper officer of the CSC.

Based on the foregoing, private respondent Tito Dato, being merely a temporary
employee, is not entitled to the relief he seeks, including his claim for
backwages for the entire period of his suspension.

WHEREFORE, premises considered, the appealed decision is hereby

REVERSED and the petition for mandamusinstituted by herein private
respondent Tito Dato is hereby DISMISSED.
G.R. No. 158708 August 10, 2010
JUSTINA MANIEBO, Petitioner,
vs.
HON. COURT OF APPEALS and THE CIVIL SERVICE
COMMISSION, Respondents.
On July 1, 1994, the Mayor of the Municipality of Puerto Galera, Oriental
Mindoro issued a promotional permanent appointment to the petitioner as
Cashier III in the Office of the Municipal Treasurer because she appeared to
possess the qualifications for the position, including the Career Service
(Professional) Eligibility appearing in line 18 of her Personal Data Sheet
showing her to have passed with a rating of 74.01% the Career Service
(Professional) examination given in Calapan, Oriental Mindoro on July 17,
1983.
When the report of her rating was verified against the Masterlist of Eligibles,
however, it was discovered that the petitioner had actually failed in the
examination for obtaining a rating of only 60%.
The CSC Regional Office (CSCRO) No. IV subsequently held a preliminary
investigation that resulted in the finding that a prima facie case of falsification
existed against the petitioner. Accordingly, on October 28, 1997, CSCRO No.
IV formally charged her with possession of spurious report of rating,
falsification, grave misconduct, and dishonesty.
On November 7, 1997, the petitioner filed her answer, which CSCRO No. IV
considered unsatisfactory. Thus, CSCRO set the case for hearing.
During the November 22, 1999 hearing, the Hearing Officer allowed the
petitioner to comment verbally or to file her objection to the evidence formally
offered against her. Instead, her counsel requested the Hearing Officer to mark
her supporting documents as her evidence, and for her to be allowed to testify
for herself.
In her direct testimony, the petitioner denied knowledge of the falsified nature
of her Career Service (Professional) eligibility rating. She asserted that the
rating had come from the CSC through the mails. She insisted that she did not
on any occasion approach any personnel of the CSC, or anybody else connected
with the CSC in order to procure the passing grade of 74.01%.
CSCRO No. IV then rendered its decision on December 16, 1999, viz:
WHEREFORE, this Office finds respondent Justina Maniebo, Cashier III,
Office of the Municipal Treasurer, Municipal Government of Puerto Galera,
Oriental Mindoro, guilty of Possession of Spurious Report of Rating,
Falsification, Grave Misconduct. Accordingly, respondent Maniebo is hereby
meted the penalty of DISMISSAL from the service.3
On February 4, 2000, the petitioner appealed to the CSC, 4 which affirmed the
decision of CSCRO No. IV through its Resolution No. 02-0433 dated March
20, 2002,5 disposing thus:
WHEREFORE, premises considered, the appeal of Justina M. Maniebo is
hereby DISMISSED for lack of merit. Accordingly, the Decision of the Civil
Service Commission Regional Office No. IV dated December 16, 1999 is
AFFIRMED.
On August 20, 2002, the petitioner sought reconsideration, but the CSC denied
her motion through Resolution No. 02-1028.6
The petitioner next appealed to the CA.7
Ruling of the CA
In the CA, the petitioner raised the following issues, 8 to wit:
a) Whether the CSC committed grave error in not considering good
faith on the part of the petitioner in the determination of the appealed
decision; and
b) Whether the CSC was correct in imposing the penalty of dismissal
in view of the circumstances obtaining in the case.
She attached to the petition for review the following annexes:
a) Certified true copy of CSC Resolution No. 02-1028 dated August
5, 2002 denying the petitioner's motion for reconsideration (Annex
A);9
b) Original copy of the notice of appeal dated August 23, 2002 filed
in the CSC (Annex B);10
c) Photocopy of the petitioner’s appeal dated January 31, 2000 to the
CSC (Annex C);11
d) The petitioner’s affidavit of merit dated August 2002 (Annex
D).12
In its assailed resolution dated September 5, 2002,13 the CA dismissed the
petition for review due to the petitioner’s failure to accompany it with the
requisite certified true copies of the material portions of the record, stating:
For failure to accompany the petition for review with the requisite certified true
copies of the material portions of the record referred to therein, i.e., the
preliminary investigation and charge for possession of spurious report of rating,
the answer, the decision dated December 16, 1999 of Civil Service Commission
Regional Office No. IV, Civil Service Commission Resolution No. 02-0433
dated March 20, 2002, and other supporting papers and the evidences submitted,
the Court Resolved to DENY DUE COURSE and, consequently, to DISMISS
the petition pursuant to Section 7, Rule 43 of the 1997 Rules of Civil Procedure.
SO ORDERED.
The petitioner filed a motion for reconsideration,14 in which her counsel, Atty.
Al Harith D. Sali, even undertook to submit the required certified copies of the
material portions within ten days from October 23, 2002. She explained in her
motion that her counsel had failed to submit the required certified copies, due
to her failure to turn over said copies to her counsel because of the distance
between her home in Puerto Galera, Oriental Mindoro and the office of her
counsel in Fairview, Quezon City.
Following its receipt of the comment of the Office of the Solicitor General on
December 12, 2002,15 the CA denied the motion for reconsideration in the
assailed resolution dated January 8, 2003,16 viz:
Acting on the motion of the petitioner for a reconsideration of the Resolution
dated September 5, 2002, which dismissed the petition for failure to append
thereto the requisite certified true copies of the material portions of the record
referred to therein, as well as the Comment interposed thereto filed by the Office
of the Solicitor General, and considering that the aforesaid motion failed to
allege the date of receipt of a copy of the assailed Resolution to determine the
timeliness of the filing of the said motion and no efforts (sic) was exerted to
rectify or supply the procedural errors the petition suffered even within the
requested period of ten (10) days, the Court Resolved to DENY the aforesaid
motion for reconsideration.
SO ORDERED.
On February 5, 2003, the petitioner filed a so-called motion for
reconsideration that was signed by another lawyer, Atty. Joventino V.
Diamante (allegedly as collaborating counsel), although Atty. Al Harith D. Sali
remained as counsel.17
In its third assailed resolution dated June 5, 2003, 18 the CA denied the
petitioner’s motion for reconsideration, which was in reality as second motion
for reconsideration that was prohibited under Rule 52, Sec. 2 of the Rules of
Court.
Hence, this appeal by petition for review on certiorari.
Issues
The petitioner claims:19
I.
WHETHER THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR IN DISMISSING THE PETITIONER'S
PETITION FOR REVIEW FOR FAILURE TO ATTACH
CERTIFIED COPY OF THE ANNEXES WHEN THE RULES
AND JURISPRUDENCE DO NOT REQUIRE THAT ALL
ANNEXES ATTACHED TO THE PETITION SHOULD BE
CERTIFIED.
II.
WHETHER THE COURT OF APPEALS ERRED IN
DISMISSING THE PETITION BASED ON ALLEGED
TECHNICALITY WHICH WAS NOT SANCTIONED BY
JURISPRUDENCE.
Ruling
The petition has no merit.
A that the petitioner’s appeal also assailed CSC Resolution No. 02-0433, she
The petitioner argues that her submission of a certified true copy of CSC
Resolution 02-1028 in her petition before the CA constituted a substantial
compliance with Section 6, Rule 43 of the Rules of Court. She averred that rules
of procedure should be liberally construed to afford litigants the opportunity to
prove their claims and prevent a denial of justice due to legal technicalities; that
she had already lost her job due to the immediate execution of the decision
pending appeal, that to require her to secure certified true copies of all the
annexes to the petition would be too burdensome for her and would contravene
the constitutionally guaranteed free access to the courts and quasi-judicial
bodies and adequate legal assistance; and that it was already settled that under
Section 6, Rule 43 of the Rules of Court, only the copies of the assailed
judgments or final orders of the lower courts needed to be certified.20She
insisted that the dismissal of her appeal due to technicalities would constitute a
deprivation of property without due process of law because what was at stake
herein was her right to employment.
In its comment,21 the CSC insisted that the CA justifiably denied due course to
the petition, considering that Section 7, Rule 43 of the Rules of Court expressly
stated that the failure of the petitioner to file the required certified true copies
of the material portions of the record referred to in the petition was sufficient
ground for its dismissal; and that the subsequent motions for
reconsideration were also rightly denied because the petitioner exerted no effort
to furnish the required certified copies within the requested period of ten days.
The petitioner’s plea for liberality is undeserving of acceptance.
The CA did not commit any error, least of all a reversible one. Its dismissal was
founded on the correct application of the applicable rule. Indeed, Section 6,
Rule 43 of the Rules of Court expressly lists down the pleadings and other
matters that a petition for review should contain, thus:
Section 6. Contents of the petition. — The petition for review shall (a) state the
full names of the parties to the case, without impleading the court or agencies
either as petitioners or respondents; (b) contain a concise statement of the facts
and issues involved and the grounds relied upon for the review; (c) be
accompanied by a clearly legible duplicate original or a certified true copy of
the award, judgment, final order or resolution appealed from, together with
certified true copies of such material portions of the record referred to therein
and other supporting papers; and (d) contain a sworn certification against forum
shopping as provided in the last paragraph of section 2, Rule 42. The petition
shall state the specific material dates showing that it was filed within the period
fixed herein. (2a)
The rule clearly requires the petition for review to be accompanied by "a clearly
legible duplicate original or a certified true copy of the award, judgment, final
order or resolution appealed from, together with certified true copies of such
material portions of the record referred to therein and other supporting papers."
The requirement is intended to immediately enable the CA to determine
whether to give due course to the appeal or not by having all the material
necessary to make such determination before it. This is because an appeal under
Rule 43 is a discretionary mode of appeal, which the CA may either dismiss if
it finds the petition to be patently without merit, or prosecuted manifestly for
delay, or that the questions raised therein are too unsubstantial to require
consideration; or may process by requiring the respondent to file a comment on
the petition, not a motion to dismiss, within 10 days from notice.22
The petitioner was not entitled to a liberal construction of the rules of procedure.
Although her petition cited decisions of the Court declaring that only the copies
of the decisions or final orders assailed on appeal needed to be certified, 23 it is
acknowledged even in the cited decisions of the Court that there should at least
be a substantial compliance with the rules. She should not forget that her
petition for review in the CA was essentially assailing not only CSC Resolution
02-1028 (denying her motion for reconsideration) but also CSC Resolution No.
02-0433 (the very decision of the CSC finding her guilty of possession of the
spurious report of rating, falsification, grave misconduct, and dishonesty, and
imposing the penalty of dismissal from the service). In Heirs of Generoso A.
Juaban v. Bancale,24 where only the order denying the respondents’ motion for
reconsideration was alleged as the subject of the appeal, the Court went beyond
the literal content of respondents’ notice of appeal and held that the appeal
should be construed to include the final order that the respondents were seeking
to be reconsidered when they filed their motion for reconsideration, because
such approach was more in accord with the intent of the parties. Considering
should have furnished the CA with a certified true copy of that resolution.
With respect to the other supporting documents of the petition as set forth in
Section 6, Rule 43, their legible copies should have been attached to the petition
or to the motion for reconsideration filed against the resolution dismissing the
petition. However, she did not even substantially comply with the requirement.
Making her non-compliance worse was her reneging on her own express
undertaking to the CA to submit the omitted documents within the 10-day
period she had prayed for in her first motion for reconsideration by not
furnishing the required supporting documents, or even the plain legible copies
thereof from the time she filed her motion for reconsideration on October 23,
2002 until its resolution on January 8, 2003. Neither did she render any
explanation for her failure to honor her undertaking. It was only when she filed
the petition in this Court that she explained her failure to submit the required
documents to the CA to be due to her financial constraints and the distance
between her residence and the office of her counsel.
Also, the petitioner’s motion for reconsideration did not allege the date when
she had received a copy of the resolution. Her omission to allege did not escape
the attention of the CA, which cited it in the resolution dated January 8, 2003
as a ground for denying the motion for reconsideration. That detail was
necessary to determine the timeliness of the filing of the motion for
reconsideration. Hence, the CA committed no reversible error in denying her
first motion for reconsideration.
The petitioner next filed a second motion for reconsideration after the issuance
of the resolution dated January 8, 2003. The CA regarded her doing so as a
blatant contravention of the Rules of Court. Indeed, her act directly violated
Section 4, Rule 43, and Section 2, Rule 52, both of the Rules of Court, viz:
Section 4. Period of appeal—The appeal shall be taken within fifteen (15) days
from notice of the award, judgment, final order or resolution, or from the date
of its last publication, if publication is required by law for its effectivity, or of
the denial of petitioner’s motion for new trial or reconsideration duly filed in
accordance with the governing law of the court or agency a quo. Only one (1)
motion for reconsideration shall be allowed. Upon proper motion and the
payment of the full amount of the docket fee before the expiration of the
reglementary period, the Court of Appeals may grant an additional period of
fifteen (15) days only within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and in no case
to exceed fifteen (15) days.
Section 2. Second motion for reconsideration. — No second motion for
reconsideration of a judgment or final resolution by the same party shall be
entertained.
Nonetheless, we point out that even in her prohibited second motion for
reconsideration, the petitioner did not tender any explanation for her failure to
make good her undertaking to furnish to the CA the required certified or legible
copies of the material portions of the record. Instead, she contented herself with
merely reiterating the grounds previously used in her first motion for
reconsideration, adding only that any further documents needed by the CA
could be made available once the records of the case were transmitted by the
CSC to the CA, as provided in Section 11, Rule 43 of the Rules of Court.
Contrary to the petitioner’s position, the transmittal of the records was not
mandatory but only discretionary upon the CA.25 Section 11, Rule 43 of the
Rules of Court provides:
Section 11. Transmittal of record.–Within fifteen (15) days from notice that the
petition has been given due course, the Court of Appeals may require the court
or agency concerned to transmit the original or a legible certified true copy of
the entire record of the proceeding under review. The record to be transmitted
may be abridged by agreement of all parties to the proceeding. The Court of
Appeals may require or permit subsequent correction of or addition to the
record.
Evidently, the petitioner repeatedly disregarded the rules too many times to
merit any tolerance by the Court, thereby exhibiting a deplorable tendency to
trivialize the rules of procedure. Yet, such rules were not to be belittled or
dismissed simply because their non-observance might have resulted in
prejudicing a party’s substantive rights.26The bare invocation of substantial
justice was not a magic wand that would compel the suspension of the rules of
procedure. Of necessity, the reviewing court had also to assess whether the
appeal was substantially meritorious on its face, or not, for only after such
finding could the review court ease the often stringent rules of
procedure.27Otherwise, the rules of procedure would be reduced to mere trifles.
B.
The petitioner claims that she relied in good faith on the rating she had received
through the mails. She denies being the author of the forged certificate. She
pleads that with her government service since 1981 and her very satisfactory
performance (borne out by the series of promotional appointments from the
position of Accounting Clerk to Cashier III), she would never deliberately
misrepresent to the CSC that she had passed the Career Service Examination,
because she knew that the CSC could verify her eligibility rating at any time.
Although the Court is not called upon to rule on the foregoing matters in view
of its finding that the CA’s assailed dismissal of the petition for review was
based on the correct application of the pertinent provisions of the Rules of
Court, it is nonetheless not amiss but reasonable to dwell on such matters if only
to establish that the positions taken by the petitioner do not advance her cause
at all and save the day for her.
It is not disputed that the petitioner’s statement in her Personal Data Sheet dated
June 24, 1994 that she had passed the July 17, 1983 Career Service
(Professional) Examination given in Calapan, Oriental Mindoro with a rating of
74.01% was contrary to her actual rating of 60% shown in the Masterlist of
Eligibles of the CSC. Her defense of good faith was weak and untrustworthy.
Although she did not need to prove her good faith, it being presumed unless
persuasive evidence to the contrary is adduced,28 the presumption did not apply
to her in the face of a showing of the genuineness of the entries made in official
records,29 like the Masterlist of Eligibles. Accordingly, she should have
presented concrete evidence to prove that the spurious certificate of rating had
been only mailed to her.
In Civil Service Commission v. Cayobit,30 we ruled that as between a
government employee’s self serving claim that she passed the Civil Service
Examination, and his actual score appearing in the Masterlist of Eligibles, the
latter must prevail. We observed there that:
The bare testimony of respondent that she has nothing to do with forging the
certificate as she actually just received it by mail in her residential address
deserves scant belief. We cannot accept her simplistic claim that she used the
certificate under the false impression that it was genuine. The three witnesses
and the various documents she presented cannot exculpate her. The witnesses,
in essence, merely testified that they received the certificate of eligibility in
question from respondent. Their belief that she was eligible was based on their
reliance on the certificate.
Apropos is the following finding of petitioner:
The testimonies of the three (3) abovementioned witnesses failed to rebut the
fact that Cayobit did not pass the examination and does not have an eligibility.
Respondent also failed to prove that she had no participation in the procurement
of eligibility. Hence it cannot be presumed that Cayobit used the fake eligibility
in good faith.
In that regard, the petitioner could have easily presented a certification from the
postmaster concerned in order to establish that she had received the spurious
report of rating by mail. Yet, she did not, and, instead, she was content with
making the bare denial of having any part in procuring the false document; and
with claiming that the report had innocently landed on her doorstep. She was
guilty of procuring the document, because she had produced and relied on it.
Without her satisfactory explanation, her being in possession of the forged
document, or her having used it warranted the presumption of her being herself
the forger or the person who had caused the forgery.31
C.
The petitioner contends that even assuming that notwithstanding her lack of any
civil service eligibility upon her entry into the Civil Service, she could still be
deemed to have acquired eligibility by operation of law under the terms of
Republic Act No. 6850,32 a law granting civil service eligibility to employees
efficiently serving the Government for at least seven years; that she was already
a civil service eligible as of February 8, 1990, the date of approval of the law,
and was no longer dismissible from the civil service by then; and that any defect
in her appointment as a permanent government employee was cured by her
acquisition of eligibility in 1990.
The petitioner’s contention has no basis.
Sections 1 and 2 of Republic Act No. 6850 state:
Section 1. All government employees as of the approval of this Act who are
holding career civil service positions appointed under provisional or temporary
status who have rendered at least a total of seven (7) years of efficient service
may be granted the civil service eligibility that will qualify them for permanent
appointment to their permanent positions.
The Civil Service Commission shall formulate performance evaluation
standards in order to determine those temporary employees who are qualified
to avail themselves of the privilege granted under this Act.
The civil service eligibility herein granted may apply to such other positions as
the Civil Service Commission may deem appropriate.
Section 2. The Civil Service Commission shall promulgate the rules and
regulations to implement this act consistent with the merit and fitness principle
within ninety (90) days after its effectivity.
These legal provisions show that not every temporary or provisional employee
is automatically deemed to be a permanent employee after rendering at least
seven years of service in the Government. The CSC still needs to evaluate
whether the employee is qualified to avail himself or herself of the privilege
granted by the statute. Moreover, that an appointee obtains a civil service
eligibility later on does not ipso facto convert his temporary appointment into a
permanent one.ten.lihpwal A new appointment is still required, because a
permanent appointment is not a continuation of the temporary appointment; the
two are distinct acts of the appointing authority.33 As held in Maturan v.
Maglana,34 a permanent appointment implies the holding of a civil service
eligibility on the part of the appointee, unless the position involved requires no
such eligibility. Where the appointee does not possess a civil service eligibility,
the appointment is considered temporary. The subsequent acquisition of the On numerous occasions, the Court did not hesitate to impose such extreme
required eligibility will not make the temporary appointment regular or punishment on employees found guilty of these offenses.37 There is no reason
permanent; a new appointment is needed. why respondent should be treated differently. xxx

Accordingly, any temporary employee who has served for the required duration
of seven years must first be found by the CSC to continuously possess the
minimum qualifications for holding the position, except the required eligibility,
before he or she may be granted civil service eligibility. Among the minimum
qualifications is the continuous observance of the Code of Conduct and Ethical
Standards for Public Officials and Employees.351avvphi1
The petitioner failed to comply with this necessary minimum qualification. She
thrived on her having misled the Government into believing that she had
possessed the requisite civil service eligibility for the various positions she had
successively held in her 20 years of service. In the first place, she would not
have been appointed in a permanent or temporary capacity, had the CSC sooner
discovered her dishonesty.
In the petitioner’s case, we have more reason to hold that length of service was
not mitigating.1avvphi1 Unlike the respondent in Sta. Ana, she neither owned
up to her dishonesty, nor showed regret for it. The State would surely face
greater risks were she now allowed to continue in public office despite her
having been found guilty of dishonesty.
WHEREFORE, we deny the petition for review on certiorari, and affirm the
resolutions dated September 5, 2002, January 8, 2003, and June 5, 2003, all
issued in C.A.-GR SP No. 72555.

Besides, pursuant to Section 20, Rule VI of the Omnibus Implementing

Regulations of the Revised Administrative Code, to wit:

Section 20. Notwithstanding the initial approval of an appointment, the same

may be recalled on any of the following grounds.

a) Non-compliance with the procedures/criteria provided in the

agency’s Merit Promotion Plan:

b) Failure to pass through the agency’s Selection/Promotion Board;

c) Violation of the existing collective agreement between

management and employees relative to promotion; or

d) Violation of other existing civil service law, rules and regulations.

even an appointment initially approved by the CSC may be subsequently

recalled when found to be invalid. R.A. No. 6850 was never meant to cure an
appointment void from the very beginning for being based on a false
representation of eligibility, like that of the petitioner. A contrary construction
of the statute will, in effect, reward dishonesty.

Lastly, the petitioner’s posture, that her dismissal from the service was too harsh
a punishment, considering that she had rendered 20 years of efficient service in
the Government, does not convince.

In Civil Service Commission v. Sta. Ana,36 the CSC Office for Legal Affairs
(CSC-OLA) found the respondent guilty of dishonesty and falsification of
public documents for falsely representing in his Personal Data Sheet that he had
passed the Career Service Professional Examinations with a rating of 83.8%,
when in fact he was not in the Masterlist of Eligibles. The Office of the Court
Administrator affirmed the findings of the CSC-OLA, but recommended the
reduction of the penalty from dismissal to suspension of one year, because:

xxx the fact that respondent has already spent more than twenty (20) years of
his life in the service of this Court and this is his first administrative complaint.
It could be that he committed the acts complained of out of his desire to be
promoted for the benefit of his family. Respondent’s admission and prayer for
forgiveness is a good sign that he is indeed remorseful for what he did. xxx

Even so, we still ruled that dismissal from the service should be imposed,
explaining:

The facts and evidence, coupled with respondent’s admission, sufficiently

established his culpability. Respondent’s use of a false certificate of eligibility
constitutes an act of dishonesty under civil service rules and his act of making
a false statement in his personal data sheet renders him administratively liable
for falsification. Under Section 23, Rule XIV of the Administrative Code of
1987, dishonesty (par. a) and falsification (par. f) are considered grave offenses
warranting the penalty of dismissal from service upon commission of the first
offense.
G.R. No. 93711 February 25, 1991
DR. EMILY M. MAROHOMBSAR, petitioner,
vs.
AHMAD E. ALONTO, JR., in his capacity as President of the Mindanao
State University, and CORAZON BATARA, respondents.
The issue in this case is whether or not petitioner Dr. Emily M. Marohombsar,
who was appointed Acting Vice-Chancellor for Academic Affairs of the
Mindanao State University (MSU) Marawi Campus by the respondent President
may be removed from office even without cause.
On March 22, 1988, the petitioner was designated as officer-in-charge of the
Office of the Vice-Chancellor for Academic Affairs (OVCAA) of MSU in a
concurrent capacity with her position then as Vice-President for External
Studies.
On January 2, 1989, the Office of the Vice-President for External Studies was
merged with the OVCAA and, as such, the functions of the former were to be
exercised by the latter. The petitioner was appointed acting Vice-Chancellor for
Academic Affairs on the same day. The Board of Regents of the MSU, on May
16, 1989, approved her appointment as acting Vice-Chancellor for Academic
Affairs.
On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the
petitioner informing her that he has decided to tap the petitioner's talent for the
MSU system as Vice-President for Academic Affairs which position is under
the administrative staff of the respondent MSU President. The petitioner, on the
same date, answered that she cannot accept the position since she has already
started several projects in the OVCAA which she wants to see through.
The respondent President, on May 16, 1990, designated Professor Macacuna
Moslem as Vice-Chancellor for Academic Affairs but the latter did not accept
the designation. On May 28, 1990, the respondent President issued Special
Order No. 158-P designating Professor Corazon Batara, the other respondent in
this case, as Officer-in-Charge of the OVCAA.
The petitioner now comes to this Court assailing her removal as Vice-
Chancellor by the respondent President.
On June 21, 1990, the Court issued a temporary restraining order directing the
respondents to cease and desist from enforcing and/or implementing Special
Order No. 159-P and from interfering and/or preventing the petitioner from
performing her duties as Vice-Chancellor for Academic Affairs of the MSU,
Marawi Campus.
On November 19, 1990, the petitioner filed a motion to cite respondent Alonto
for contempt, alleging that said respondent, in violation of the temporary
restraining order issued by this Court submitted Special Order No. 158-P to the
MSU Board of Regents for approval.
The petitioner asserts that her appointment being permanent, she can be
removed only after hearing and for cause.
Resolution No. 59, S. 1989, passed by the MSU Board of Regents on May 16,
1989, reads as follows:
RESOLVED, that upon recommendation of the President of the
University of the Executive Committee of the Board of Regents the
following Special Orders as amended/corrected are hereby
confirmed:
A. DESIGNATIONS
A.1 Major designations
xxx xxx xxx
9) Special Order No. 10-P, S. 1989, designating Prof. Emily M.
Marohombsar as Acting Vice Chancellor for Academic Affairs,
MSU Marawi Campus, with an honorarium in accordance with the
approved policies of the University, subject to accounting and
auditing rules and regulations, effective January 2, 1989 and shall
remain in force until revoked or amended by competent authority.
(Rollo, pp. 5354; Emphasis supplied)
It may be noted that the special order confirmed by the Board of Regents
specifically designated the petitioner as Acting Vice-Chancellor for Academic
Affairs. A bona fide appointment in an acting capacity is essentially temporary
and revocable in character and the holder of such appointment may be removed
anytime even without hearing or cause. (Austria v. Amante, 79 Phil. 780 [1948];
Castro v. Solidum, 97 Phil. 278 [1955]; Mendez v. Ganzon, 101 Phil. 48 [1957];
Valer v. Briones, 9 SCRA 596 [1963]; Abana v. Aguipo, 15 SCRA 604 [1965];
Hojilla v. Marilao, 13 SCRA 293 [1965]. A person who accepts an appointment
in an acting capacity extended and received without any protest or reservation
and who acts thereunder for a considerable time cannot later be heard to say
that the appointment was, in reality, permanent and therefore there can be no
removal except for cause. (See Cabiling v. Pabualan, 14 SCRA 274 [1965])
There are circumstances, however, which rule against the routine or blind
application of the principle which governs acting appointments to this case.
The essence of an acting appointment is its temporary nature. It is a stop gap
measure intended to fill an office for a limited time until a permanent
appointment is extended or a new appointee is chosen. (Austria v.
Amante, supra; Castro v. Solidum, supra; and Valer v. Briones, supra)
The nature of an acting appointment limits not only the claims of the appointee
to a lengthy tenure but also defines the authority of the appointing power. A
public officer appointed in an acting capacity cannot claim that the appointment
shall in time ripen into a permanent one. However, neither can the appointing
power use the principle of temporary appointments to evade or avoid the
security of tenure principle in the Constitution and the Civil Service Law. This
is similar to the rule that the head of an office cannot arbitrarily convert
permanent positions to primarily confidential items so that he can more freely
fire and hire or rehire subordinates at his personal discretion. It is the nature of
the functions attached to a position, not the nomenclature or title given by the
appointing authority which determines its primarily confidential nature. (Piñero
v. Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court may
inquire into the true nature of an "acting" appointment to determine whether or
not it is used as a device to circumvent the security of tenure principle.
In this case, the intent to make the petitioner serve at the pleasure of the
respondent MSU President is obvious. The petitioner is a career official of MSU
for over 27 years. She was Vice-President for External Studies since 1982. On
March 22, 1988, she was given an additional assignment as Officer-in-Charge
of the Office of the Vice-Chancellor for Academic Affairs concurrently with
the permanent position as Vice-President for External Studies.
About nine months later, the Vice-Presidency for External Studies was
"merged" with the Vice-Chancellorship for Academic Affairs. At the same
time, the petitioner was appointed acting Vice-Chancellor for Academic
Affairs.
The effect, therefore, was to abolish the petitioner's permanent office and give
her a temporary appointment in the supposedly new office which replaced or
absorbed the former office. Another result was the loss by the petitioner of her
permanent status.
There are reasons which indicate that these maneuverings by the respondent
President cannot be characterized as bona fide.
Section 40.5 (paragraph 22) Article 4 of the Code of Governance of the MSU
provides:
Personnel Matters. In accordance with the policies and rules
prescribed by the Board, the specific powers of the President include
the following (delegated powers)
xxx xxx xxx
 22. Designation of any Dean, Director, or Department Chairman in
acting capacity or any Officer-in-Charge for any of these positions,
for a period of less than one year, such designation being made
without additional compensation for the position designated except
the honorarium attached to said position; PROVIDED, That the
President shall report the designation in the next regular meeting
after winch the designation shall be null and void unless otherwise
renewed.
The power to designate is vested in the MSU President. The designation must
be less than one year. It must be reported to the Board of Regents at the next
regular meeting. After the meeting, another designation must be issued if no
permanent appointment was made. The earlier designation becomes void as the
Board is expected to fill the item permanently, not merely leaving it temporarily
occupied.
On the other hand, the power to appoint is vested in the Board of Regents as
follows:
Sec. 6. The Board of Regents shall have the following powers and
duties, in addition to its general powers of administration and the
exercise of the power of the corporation;
xxx xxx xxx
(e) To appoint, on the recommendation of the President of the
University, professor, instructors, lecturers and other employees of
the University. . . . — MSU Charter, RA 1387
If the President merely designates, the Board of Regents does not confirm the
designation. Since it is only for theinformation of the Board, the President's
action should be merely "noted."
When the Board of Regents confirmed the appointment of the petitioner on May
16, 1989, it was acting on an ad interim appointment effected by the President.
No other interpretation can be validly made. If it was a mere designation, it
needs no confirmation. The fact that confirmation was needed shows that it is
an ad interim one. An ad interim appointment is one made during the time
when the appointing or confirming body is not in session and there is an existing
clear and present urgency caused by an impending obstruction or paralyzation
of the functions assigned to the office if no immediate appointment is made.
(Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963]) When the Vice-Presidency for
External Studies was abolished and its functions were merged with the Vice-
Chancellorship for Academic Affairs, both the security of tenure of the
occupant and the needs of the new office called for the ad interim appointment.
The respondent cannot use the device of an ambiguous designation to go around
the security of tenure principle. Under the MSU Code, a designation requires a
fixed period of not less than one year. The appointment given to the petitioner
was indefinite. She would serve at the pleasure of the MSU President who is
not even the head of the institution because the head is the Board of Regents.
The intent to convert permanent items into temporary ones is apparent. The
petitioner states that the purpose "is to hold the sword of Damocles hanging
over the head of all MSU employees and officers." (Rollo, p. 75) The Board of
Regents cooperated in the plan. Practically, all top officers below the President
were converted into positions where the occupants serve at the pleasure of the
President and presumably, the Board of Regents. Thus, at the May 16, 1989
Board of Regents' meeting at the Army and Navy Club alongside the Luneta in
Manila, the following acting appointments were submitted for approval or
confirmation:
1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D.
Macaraya, Sr. as Acting Executive Vice-President . . . ;
2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B.
Derogongan as Acting Vice President for Academic Affairs . . . ;
3. Special Order No. 05-P, S. 1989, designating D. Corazon Batara
as Acting Assistant Vice-President for Academic Affairs . . . ;
4. Special Order No. 113-P, S. 1989, designating D. Milandre S.
Rusgal as Acting Vice President for Planning and Development . . .
;
5. Special Order No. 109-P, S. 1989, designating Prof. Guimba
Poingan as Acting Assistant Vice President for Planning and
Development . . . ;
6. Special Order No. 60-P, S. 1989, designating Atty. Concordio
Baguio as Officer-in-Charge of the Office of the Vice-President for
Administration and Finance . . . ;
7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti
as Acting Assistant Vice President for Administration and Finance .
..;
8. Special Order No. 134-P, S. 1989, designating Prof. Emily M.
Marohombsar as Acting Vice-Chancellor for Academic Affairs,
MSU Marawi Campus . . . ;
10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S.
Aguam as Acting Vice Chancellor for Administration and Finance .
..;
11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico
as Acting Vice Chancellor for Research and Extension . . . (Rollo,
pp. 117-118)
The respondents argue that the permanent item of the petitioner is Professor VI.
They state:
xxx xxx xxx
Finally, petitioner has not refuted the fact that the position she
actually occupies is that of Professor VI. This is precisely the reason
why petitioner's designation as Acting VCAA can not be deemed a
regular or permanent appointment because, if it were so, the
anomalous situation of one permanently appointed to two public
positions simultaneously would arise. (Rollo, p. 130)
This argument has no merit.
As early as 1963, this Court ruled in Tapales v. President and Board of Regents
of the University of the Philippines(7 SCRA 553 [1963]) that UP Deans and
Directors enjoy security of tenure and any attempt to remove them by limiting
their terms of office from permanent to a five (5) year term is unconstitutional.
Deans and Directors are selected from faculty members. An appointment as
Professor is also needed for salary rating purposes but does not detract from the
permanent nature of the administrative position (id., at pp. 554 and 556). The
fact that Professor Tapales was given another appointment as Director of the
U.P. Conservatory of Music does not mean that the second appointment is only
temporary in nature. In the present case, the fact that Professor Marohombsar
has a permanent appointment as Professor does not detract from the permanent
nature of her present appointment as Vice-Chancellor, especially since the same
was duly confirmed by the MSU Board of Regents. The only difference is that
her position as Vice-Chancellor has a fixed term while that of Professor Tapales
was until he retired or resigned.
The attempt of the respondent to solve the problem by placing the petitioner in
his own administrative staff as Vice-President for Academic Affairs cannot be
countenanced. The petitioner served in this capacity from 1975 to 1978 after
which she became Vice-President for External Studies in 1982. The proffered
position is not only less desirable to the petitioner but she expressly rejected it,
preferring to stay in her present position. She thanked the respondent but stated
she would not be effective in the new position while in the OVCAA she could
complete a number of projects and programs. (Rollo, p. 21) The correctness of
the petitioner's stand is explained by this Court in Sta. Maria v. Lopez (31
SCRA 673 [1970]). There are transfers which appear to be promotions or lateral
movements but are in truth demotions. There is no showing that the interest of
the service would be served if the proffered appointment would be forced on
her.
No less than the Secretary of Education, Culture and Sports, Secretary Isidro D.
Cariño opined, and the Court agrees with him, that the petitioner may not be
removed from the disputed office by the MSU President without the authority
of the Board. And, as correctly stated by the Secretary, Special Order No. 158-
P issued by the respondent president designating respondent Batara as officer
in-charge of the same office was unapproved by the Board, hence, the special
order cannot revoke, or could not have revoked the designation of the petitioner
as acting Vice-Chancellor. (Annex A, Petitioner's Memorandum, Rollo, pp.
119-120)

The respondent MSU President, perhaps realizing the vulnerability of his

action, submitted Special Order No. 158-P to the Board of Regents for approval.
But such submission was made after the Court already issued its temporary
restraining order and consequently, his action constituted contempt of Court.
Considering, however, that the respondent appears to have acted in the honest
albeit mistaken belief that MSU would progress faster if the executive officers
serve at his pleasure and discretion, the Court rules that declaring him in
contempt would be too harsh a remedy. The respondent President is,
nevertheless, admonished for his action. When this Court issues a restraining
order, it must be obeyed.

WHEREFORE, the petition is GRANTED. The petitioner shall remain as the

lawful occupant in a permanent capacity of the position of Vice-Chancellor for
Academic Affairs of MSU Marawi until the end of her three-year term or her
tenure is otherwise lawfully terminated. The motion to cite respondent Alonto
for contempt is DENIED but the respondent is admonished to faithfully heed
court orders in the future. The Temporary Restraining Order issued by this
Court on June 21, 1990 is made PERMANENT.
G.R. No. 104226 August 12, 1993 In her motion for reconsideration with the Civil Service Commission, dated 5
March 1990, questioning Chairman Barlongay's ruling, petitioner claimed:
CONCHITA ROMUALDEZ-YAP, petitioner,
vs. 1. The opinion/ruling was not fully supported by the evidence on record;
THE CIVIL SERVICE COMMISSION and THE PHILIPPINE
NATIONAL BANK, respondents.
2. Errors of law prejudicial to the interest of the movant have been committed.
She argued:
This is a special civil action for certiorari under Rule 65 of the Rules of Court,
assailing Resolution No. 92-201 of the respondent Civil Service Commission,
. . . that her separation from the service was illegal and
which upheld the petitioner's separation from the Philippine National
was done in bad faith considering that her termination
Bank(PNB) as a result of the abolition of the Fund Transfer Department
on February 16, 1986 was made effective prior to the
pursuant to a reorganization under Executive Order No. 80, dated 3 December
effectivity of Executive Order No. 80 on December 3,
1986.
1986, which law authorized the reorganization of the
PNB, and even before February 25, 1986, when
Petitioner Conchita Romualdez-Yap started working with the Philippine President Corazon C. Aquino came into power. She
National Bank on 20 September 1972 as special assistant with the rank of further claims that although the notice of termination was
Second Assistant Manager assigned to the office of the PNB President. After dated January 30, 1987 it was only served upon her on
several promotions, she was appointed in 1983 Senior Vice President assigned February 16, 1987 when the new Constitution which
to the Fund Transfer Department. guarantees security of tenure to public employees was
already in effect.3
Starting 1 April 1986 up to 20 February 1987, petitioner filed several
applications for leave of absence (due to medical reasons) which were duly xxx xxx xxx
approved. While she was on leave, Executive Order No. 80 (Revised Charter of
the PNB) was approved on 3 December 1986. Said executive order authorized
. . . the bad faith in her separation from the service in
the restructure/reorganization and rehabilitation of PNB. Pursuant to the
1987 was evident from the recent restoration of the Fund
reorganization plan, the Fund Transfer Department was abolished and its
Transfer Department as a separate and distinct unit from
functions transferred to the International Department.
the International Department . . . 4

Consequently, petitioner was notified of her separation from the service in a

Denying the motion for reconsideration, the Civil Service Commission in its
letter dated 30 January 1987, thus:
aforecited Resolution No. 92-201, dated 30 January, 1992, ruled:

Pursuant to the Transitory Provision of the 1986 Revised

Sec. 33 of EO 80 (1986 Revised Charter of the PNB)
Charter of the Bank, please be informed that
provides:
Management has approved your separation from the
service effective February 16, 1986. You shall be
entitled to the regular benefits allowed under existing Sec. 33. Authority to Reorganize. — In view of reduced
law. (emphasis supplied) operations contemplated under this charter in pursuance
of the national policy expressed in the "Whereas" clause
hereof, a reorganization of the Bank and a reduction in
Please be informed further that under Sec. 37 of the
force are hereby authorized to achieve greater efficiency
Bank's 1986 Revised Charter, any officer or employee
and economy in operations, including the adoption of a
who feels aggrieved by any matter treated above may
new staffing pattern to suit the reduced operations
submit his case to the Civil Service
envisioned. The program of reorganization shall begin
Commission.1
immediately after the approval of this Order, and shall be
completed within six (6) months and shall be fully
This letter was received by petitioner's secretary at the PNB head office on 16 implemented within eighteen (18) months thereafter."
February 1987. Clearly; as aforequoted, PNB was authorized to undergo
reorganization and to effect a reduction in force to
"achieve greater efficiency and economy in operations".
Petitioner's first recorded appeal to the Civil Service Commission questioning
It cannot, be disputed that reduction in force necessitates,
her separation is a letter dated 4 August 1989. Then CSC Chairman Samilo N.
among others, the abolition of positions/offices. The
Barlongay upheld the validity of her separation from the service in a
records show that prior to its reorganization, PNB
letter/opinion dated 30 August 1989 (this was allegedly received by petitioner
originally had 7,537 positions which were reduced to
only on 26 February 1990) stating thus:
5,405 after the reorganization. Indeed, 2,132 positions
were abolished, that is, the original positions in PNB
xxx xxx xxx were reduced by 28%. This reduction in force likewise
included the senior officer positions, in PNB, which were
reduced, thus:
It may be mentioned in this connection, that inasmuch as
you did not avail of the ERIP/Supplementary Retirement
Plans adopted by the PNB in 1986, you have therefore Positions Incumbents Proposed Position
lost your right thereto. Moreover, since you lack the
required number of years of service to entitle you to
President 1 1 1
retirement benefits under existing laws, you may be
Sr. Exec. VP 1 1 0
entitled to the return of your GSIS personal
Exec. VP 3 2 2
contributions. Considering further that you have
Senior VP 12 11 7
exhausted all your accumulated leave credits as you went
Vice Pres. 33 27 15
on leave of absence for the period from April 1, 1986 to
February 20, 1987, there is no legal or valid basis to
entitle you to payment of terminal leave. The position of movant Yap (SVP) was one among the
original twelve (12) SVP positions. It was one among the
five (5) SVP positions which were abolished. In fact, the
Finally, pursuant to Section 16, Article XVIII of the
FTD of which she was then the incumbent SVP, was
Transitory Provisions of the 1987 Philippine
merged with the International Department to which its
Constitution, you may be entitled to payment of
functions were closedly related.
separation subject to auditing rules and regulations.2
 It should be noted that as ruled by the Supreme Court in
Dario vs. Mison (G.R. NO. 81954):
Reorganizations in this
jurisdiction have been regarded as
valid provided they are pursued in
good faith. As a general rule, a
reorganization is carried out in
"good faith" if it is for the purpose
of economy or to make
bureaucracy more efficient. In
that event, no dismissal or
separation actually occurs
because the position itself ceases
to exist. And in that case, security
of tenure would not be a Chinese
Wall. . . . .
. . . Good faith, as a component of
a reorganization under a
constitutional regime is judged
from the facts of each case.
In the instant case, therefore, this Commission is inclined
to believe that the reorganization of PNB was done in
good faith. For indeed, the reorganization was pursued to
achieve economy. It undertook reduction in force as a
means to streamline the numbers of the workforce. It was
incidental that movant Yap's position was one among
those abolished. Movant Yap failed to substantiate her
claim by clear and convincing evidence that the abolition
of her position was a result of her close identification
with the previous regime, being a sister of former First
Lady Imelda Romualdez Marcos. This being so, and
pursuant to the presumption of regularity in the
performance of official functions, the abolition of
movant Yap's position should be upheld. PNB, in the
instant case, has clearly proved by substantial evidence
that its act in terminating the services of some of its
employees was done in good faith. 5
Overruling her imputation of bad faith, i.e. her separation was illegal because it
took effect on 16 February 1986 or even before the promulgation of EO No. 80
on 3 December 1986, the CSC noted that the year "1986" stated in the notice of
her separation from the service was a typographical error. PNB submitted
documents (p. 6 of Resolution No. 92-201) supporting its stand that the
separation actually took effect on 16 February 1987.
On the issue of bad faith as related to the later restoration of the Fund Transfer
Department, the subject CSC resolution adds:
xxx xxx xxx
It may be mentioned that the recent restoration of the
Fund Transfer Department, actually was a merger of the
Fund Transfer Group, the Foreign Remittance
Development and Coordinating Unit based on board
Resolution No. 60 of March 12, 1991, or after the lapse
of over four (4) years from the date it was abolished in
1987. Moreover, the restoration of the Fund Transfer
Department and other offices in the PNB was primarily
caused by the improved financial capability and present
needs of the Bank. This improved financial condition of
the PNB is evident from the 1990 Annual Report it
submitted. It may be further stated that the re-established
FTD is headed by a Vice President, a position much
lower in rank than the former department headed by a
Senior Vice President.
Furthermore, it should be noted that
granting arguendo that movant Yap's termination from
the service was tainted with bad faith, she however, is
now barred from assailing the same as she did not
seasonably assert her right thereto. Records show that
she was separated from PNB on February 16, 1987 and
it was only in 1989 or about 2 years thereafter when she
brought this matter to this Commission. By her inaction
in questioning her termination within a period of one
year, she is considered to have acquiesced to her
separation from the service and abandoned her right to
the position.6
In the present petition before the Court, the following issues are raised:
1. Existence of bad faith in the reorganization of the Philippine National Bank
resulting in the separation from the service of petitioner.
2. Erroneous application of the Dario v. Mison doctrine vis-a-vis PNB's
reorganization.
3. Erroneous application of the one (1) year prescriptive period for quo
warranto proceedings in petitioner's case.
Dario v. Mison7 laid down the requirement of good faith in the reorganization
of a government bureau wherein offices are abolished. It says:
. . . Reorganizations in this jurisdiction have been
regarded as valid provided they are pursued in good
faith. As a general rule, a reorganization is carried out in
"good faith" if it is for the purpose of economy or to
make bureaucracy more efficient. In that event, no
dismissal (in case of dismissal) or separation actually
occurs because the position itself ceases to exist. And in
that case, security of tenure would not be a Chinese wall.
Be that as it may, if the "abolition," which is nothing else
but a separation or removal, is done for political reasons
or purposely to defeat security of tenure, or otherwise not
in good faith, no valid "abolition" takes place and
whatever "abolition" is done, is void ab initio. There is
an invalid "abolition" as where there is merely a change
of nomenclature of positions, or where claims of
economy are belied by the existence of ample funds. It is
to be stressed that by predisposing a reorganization to the
yardstick of good faith, we are not, as a consequence,
imposing a "cause" for restructuring. Retrenchment in
the course of a reorganization in good faith is still
removal "not for cause" if by "cause" we refer to
"grounds" or conditions that call for disciplinary action.
Good faith, as a component of a reorganization under a
constitutional regime, is judged from the facts of each
case.
In Petitioner's case, the following instances are cited by her as indicia of bad
faith:
1. The abolished department was later restored and the
number of senior vice presidents was increased.
2. PNB did not follow the prescribed sequence of
separation of employees from the service contained in
Rep. Act No. 6656 which is:
Sec. 3. In the separation of
personnel pursuant to
reorganization, the following
order of removal shall be
followed:
(a) Casual
employees
with less
than five
(5) years of
governmen
t service;
 (b) Casual the implementation of the reorganization. There is no doubt as to the legal basis
employees for PNB's reorganization. The real question is: was it done in good faith, tested
with five by the Dario v. Mison doctrine?
(5) years or
more of
To start with it is almost absurd for petitioner to insist that her termination from
governmen
the service was antedated to 16 February 1986. At that time, the reorganization
t service;
of PNB had not even been conceived. In most of PNB's pleadings, it has
documented and supported its stand that the year of petitioner's separation is
(c) 1987 not 1986. The antedating of the termination date, aside from being clearly
Employees a typographical error, is a periphernal issue. The real issue is existence of bad
holding faith consisting of tangible bureaucratic/management pressures exerted to ease
temporary her out of office. Bad faith has been defined as a state of mind affirmatively
appointme operating with furtive design or with some motive of self interest or ill will or
nts; and for an ulterior purpose.8 It is the performance of an act with the knowledge that
the actor is violating the fundamental law or right, even without willful intent
to injure or purposive malice to perpetrate a damnifying harm.9
(d)
Employees
holding PNB's reorganization, to repeat, was by virtue of a valid law. At the time of
permanent reorganization, due to the critical financial situation of the bank, departments,
appointme positions and functions were abolished or merged. The abolition of the Fund
nts: Provid Transfer Department (FTD) was deemed necessary. This, to the Court's mind,
ed, That was a management prerogative exercised pursuant to a business judgment. At
those in the this point, a distinction can be made in ruling on the validity of a reorganization
same between a government bureau or office performing constituent functions (like
category as the Customs) and a government-owned or controlled corporation performing
enumerate ministrant functions (like the PNB).
d above,
who are
Constituent function are those which constitute the very bonds of society and
least
are compulsory in nature; ministrant functions are those undertaken by way of
qualified in
advancing the general interests of society, and are merely optional. Commercial
terms of
or universal banking is, ideally, not a governmental but a private sector,
performan
endeavor. It is an optional function of government.
ce and
merit shall
be laid off . . . The principles determining whether or not a
first, government shall exercise certain of these optional
length of functions are: (1) that a government should do for the
service public welfare those things which private capital would
notwithsta not naturally undertake and (2) that a government should
nding. do those things which by its very, nature it is better
equipped to administer for the public welfare than is any
private individual or group of individuals (Malcolm, The
3. Petitioner was not extended preference in appointment
Government of the Philippine Islands, pp. 19-20)
to the positions in the new staffing pattern as mandated
by Sec. 4 of Rep. Act 6656, her qualification and fitness
for new positions were never evaluated or considered in From the above we may infer that, strictly speaking,
violation of Sec. 27 of P.D. 807 which was incorporated there are functions which our government is required to
as Sec. 29 Ch. 5 Subtitle A, Book V of the Administrative exercise to promote its objectives as expressed in our
Code of 1987. Constitution and which are exercised by it as an attribute
of sovereignty, and those which it may exercise to
promote merely the welfare, progress and prosperity of
4. Lack of notice and bearing before separation from the
the people. To this latter class belongs the organization
service.
of those corporations owned or controlled by the
government to promote certain aspects of the economic
5. Petitioner was forced to take a leave of absence and life of our people such as the National Coconut
prevented from reporting for work. Corporation. These are what we call government-owned
or controlled corporations which may take on the form
of a private enterprise or one organized with powers and
6. There is a discrepancy in the date of her separation
formal characteristics of a private corporation under the
from the service and the effectivity thereof.
Corporation Law. (Bacani vs. Nacoco, No, L-9657,
November 29, 1956, 100 Phil. 468)
7. PNB employees in the Fund Transfer Department
identified with her were reassigned or frozen.
But a reorganization whether in a government bureau performing constituent
functions or in a government-owned or controlled corporation performing
8. She is listed as having resigned instead of being ministrant functions must meet a common test, the test of good faith. In this
separated or dismissed which was what actually connection, the philosophy behind PNB's reorganization is spelled out in the
happened. whereas clauses of Executive Order No. 80:

9. The dismissal was politically motivated, she being a WHEREAS, within the context of the general policy
sister of Mrs. Imelda Romualdez Marcos, wife of there nevertheless exists a clear role for direct
deposed President Ferdinand Marcos. government-participation in the banking system,
particularly in servicing the requirements of agriculture,
small and medium scale industry, export development,
Executive Order No. 80 conferred upon the PNB the authority to reorganize. and the government sector.
The order was issued by then Pres. Corazon Aquino on 3 December 1986 while
she was exercising the powers vested in the President of the Philippines by the
Freedom Constitution. After 3 December 1986, what remained to be done was
 WHEREAS, in pursuit of this national policy there is
need to restructure the government financial institutions,
particularly the Philippine National Bank, to achieve a
more efficient and effective use of available scarce
resources, to improve its viability, and to avoid unfair
competition with the private sector, and
WHEREAS, the reorganization and rehabilitation of the
Philippine National Bank into a similar but stronger and
more operationally viable bank is an important
component of the nationalization programs for both the
financial system and the government corporation sector;
....
Whether there was a hidden political agenda to persecute petitioner due to her
consanguinial relation to Mrs. Imelda Romualdez Marcos, the widow of former
President Marcos, is not clearly shown. On the other hand, it is entirely possible
that, precisely because of such consanguinial relation, petitioner may have been
the object of deferential, if not special treatment under the Marcos regime. It is
part of the Filipino culture to extend such deferential, if not special treatment to
close relatives of persons in power. Many times this is carried to unwholesome
extremes. But a discontinuance of such deferential or special treatment in the
wake of a change in government or administration is not bad faith per se. It may
be merely putting things in their proper places.
Due to the restructuring — and this is empirically verifiable — PNB became
once more a viable banking institution. The restoration of the FTD four years
after it was abolished and its functions transferred to the International
Department, can be attributed to the bank's growth after reorganizations,
thereby negating malice or bad faith in that reorganization. The essence of good
faith lies in an honest belief in the validity of one's right. 10 It consists of an
honest intention to abstain from taking an unconscionable and unscrupulous
advantage of another, its absence should be established by convincing
evidence. 11
The records also clearly indicate that starting April 1986 to February 1987,
petitioner went on leave of absence for medical reasons. While she was not
reporting to the office, the bank's reorganization got underway. She continued,
however, receiving her salaries, allowances, emoluments, honoraria and fees up
to March 1987. Employees who were affected by the reorganization had the
option to avail of the bank's Separation Benefits Plan/Early Retirement Plan
(SBP/ERIP). Petitioner opted not to avail of such plan and instead submitted to
the result of the bank's ongoing reorganization and management's discretion. If
petitioner had the desire for continued employment with the bank, she could
have asserted it for management's consideration. There is no proof on record
that she affirmatively expressed willingness to be employed. Since she cannot
rebut the CSC finding that her earliest appeal was made on 4 August 1989, there
is no reason for this Court to hold that she did not sleep on her rights. On the
contrary, her present argument that bad faith existed at the time of the abolition
of the FTD because it was restored four years later is a little too late. Who could
have predicted in 1986 or 1987 that PNB would be able to rise from its financial
crisis and become a viable commercial bank again? The decision to abolish the
FTD at the time it was abolished, to repeat, was a business judgment made in
good faith.
PNB for its part submits that its reorganization was effected in good faith
because —
a) There was not only a perceptible but substantial
restructuring of the PNB hierarchy showing reduction of
personnel, consolidation of offices and abolition of
positions.
b) Two thousand one hundred thirty two (2,132)
positions were abolished during the period from
February 16, 1986 to January 14, 1987 leaving a lean
workforce of five thousand four hundred five (5,405) as
of latter date per B.R. No. 34 hereto attached as Annex
"R".
c) The number of senior officers, including Senior Vice
Presidents, was accordingly reduced.
Another issue raised by petitioner is PNB's alleged non-compliance with the
mandate of Sections 2 and 4 of Rep. Act No. 6656. These Sections provide:
Sec. 2. No officer or employee in the career service shall
be removed except for a valid cause and after due notice
and hearing. A valid cause for removal exists when,
pursuant to a bona fide reorganization, a position has
been abolished or rendered redundant or there is a need
to merge, divide, or consolidate positions in order to
meet the exigencies of the service, or other lawful causes
allowed by the Civil Service Law. The existence of any
or some of the following circumstances may be
considered as evidence of bad faith in the removals made
as a result of reorganization, giving to a claim for
reinstatement or reappointment by an aggrieved party.
(a) Where there is a significant increase in the number of
positions in the new staffing pattern of the department or
agency concerned;
(b) Where an office is abolished and another performing
substantially the same functions is created;
(c) Where incumbents are replaced by those less
qualified in terms of status of appointment, performance
and merit;
(d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified
offices perform substantially the same functions as the
original offices;
(e) Where the removal violates the order of separation
provided in Section 3 hereof.
xxx xxx xxx
Sec. 4. Officers and employees holding permanent,
appointments shall be given preference for appointment
to the new position in the approved staffing pattern
comparable to their former positions or in case there are
not enough comparable positions, to positions next lower
in rank.
No new employees shall be taken in until all permanent
officers and employees have been appointed, including
temporary and casual employees who possess the
necessary qualification requirements, among which is
the appropriate civil service eligibility, for permanent
appointment to positions in the approved staffing pattern,
in case there are still positions to be filled, unless such
positions are policy-determining, primarily confidential
or highly technical in nature.
In the first place, Rep. Act No. 6656 cannot be invoked by petitioner because it
took effect on 15 June 1987, or after PNB's reorganization had already been
implemented. But assuming, ex gratia argumenti, that it is applicable here and
petitioner must be accorded preferential right to appointment in the bank, PNB
in its rejoinder impressively asserts:
Needless to say, there were various committees that were
created in the implementation of the organizational
restructuring of the Bank based on the foregoing policy
guidelines. Each personnel to be retained was evaluated
in terms of relative fitness and merit along with the other
personnel of the Bank. Thus, when then SVP Federico
Pascual was chosen to head the International Department
from among other officers of the Bank, including Ms.
Yap, his qualifications far exceeded those of the other
candidates for the position.
 We attach hereto as Annexes "G-1" and "G-2" the service
records of Mr. Federico Pascual and Petitioner Ms. Yap,
respectively, which clearly show that the qualifications
of Mr. Pascual far exceed those of Petitioner Yap. Aside
from being a lawyer having been a law graduate from the
University of the Philippines, he is also a Bachelor of
Arts degree holder from Ateneo de Manila and a Master
of Laws graduate o Columbia Law School. He had
studied Masteral Arts in Public Administration at the
London School of Economics and had undergone
extensive seminars since 1974 at the International
Department and had been assigned in several foreign
branches of the Bank. Before he resigned from the Bank,
he held the second highest position of Executive Vice
President and served as Acting President of the Bank
before the incumbent president, President Gabriel
Singson assumed his position.
On the other hand, the service record of Petitioner Yap
will show that she only holds a Bachelor of Science in
Commerce Degree from Assumption Convent and has
undergone only one seminar on Management and
Leadersbip Training Program. She entered the Bank
service in 1972. (Rollo at pp. 312 to 313)
To those who feel that their unjustified separation from the service is for a cause
beyond their control, the aforecited Magno case teaches:
. . . while We fully recognize the special protection which
the Constitution, labor laws, and social legislation accord
the workingman, We cannot, however, alter or amend the
law on prescription to relieve him of the consequences of
his inaction. Vigilantibus, non dormientibus, jura
subveniunt (Laws come to the assistance of the vigilant,
not of the sleeping). His explanation that he could not
have filed the complaint earlier because "he was
prevented to do so beyond his control for the simple
reason that private respondent have (sic) tried to
circumvent the law by merely floating" him is very
flimsy and does not even evoke sympathetic
consideration, if at all it is proper and necessary. We note
that petitioner herein is not an unlettered man; he seems
to be educated and assertive of his rights and appears to
be familiar with judicial procedures. He filed a motion
for extension of time to file the petition and the petition
itself without the assistance of counsel. We cannot
believe that if indeed he had a valid grievance against
PNCC he would not have taken immediate positive steps
for its redress.

xxx xxx xxx WHEREFORE, premises considered, the assailed CSC resolution is
AFFIRMED. The petition is DISMISSED for failure to show grave abuse of
discretion on the part of said CSC in rendering the questioned resolution. No
The prayer in the petition at bar seeks petitioner's immediate reinstatement to
pronouncement as to costs.
her former position as senior vice president and head of the Fund Transfer
Department, or reappointment to a position of comparable or equivalent rank
without loss of seniority rights and pay, etc., under the bank's new staffing
pattern.

A person claiming to be entitled to a public office or position usurped or

unlawfully held or exercised by another may bring an action for quo
warranto (Rule 66, Sec. 6, Rules of Court). The petitioner therein must show a
clear legal right to the office allegedly held unlawfully by another. 12

An action for quo warranto should be brought within one (1) year after ouster
from office;13 the failure to institute the same within the reglementary period
constitutes more than a sufficient basis for its dismissal14 since it is not proper
that the title to a public office be subjected to continued
uncertainty . . . 15 An exception to this prescriptive period lies only if the failure
to file the action can be attributed to the acts of a responsible government officer
and not of the dismissed employee.16

Measured by the above jurisprudence, petitioner's action may be said to be one

for quo warranto, seeking reinstatement to her former position which at present
is occupied by another. She cannot invoke De Tavera v. Phil.Tuberculosis
Society, Inc., et. al. 17 and contend that there is no claim of usurpation of office,
and that quo warrantomay be availed of to assert one's right to an office in the
situation obtaining in the case at bar.

Santos v. CA, et. al. 18 and Magno v. PNNC Corp. 19 are invoked by petitioner
to illustrate that this action is one for separation without just cause, hence, the
prescriptive period is allegedly four (4) years in accordance with Article 1146
of the Civil Code. 20 We do not agree. Petitioner's separation from the service
was due to the abolition of her office in implementation of a valid
reorganization. This is not the unjustifiable cause which results in injury to the
rights of a person contemplated by Article 1146. The abolition of the office was
not a whimsical, thoughtless move. It was a thoroughly evaluated action for
streamlining functions based on a rehabilitation plan. 21 At the time of the
abolition of the Fund Transfer Department in 1986, foreign exchange losses of
the bank amounted to P81.1 Million. 22 The head of office was a Senior Vice
President. At the time of restoration of the department in 1991, it was headed
by a vice president (lower in rank) and showed earnings of P2,620.0
Million. 23 Other departments abolished in 1986 were also subsequently
restored.

Restoring petitioner to her previous position with backwages would be unjust

enrichment to her, considering that she had abandoned or showed lack of
interest in reclaiming the same position when the bank was not yet fully
rehabilitated and she only insisted on reinstatement in August 1989 or two (2)
years after her alleged unjustified separation.
G.R. No. 93023 March 13, 1991 certify further that Mr. Achacoso was not appointed to a rank in the CES and is
not therefore a member of the Career Executive Service.
TOMAS D. ACHACOSO, petitioner
vs. xxx xxx xxx
CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as
Executive Secretary and Secretary of the Department of Labor and
(Sgd.) ELMOR D. JURIDICO
Employment (DOLE), respectively; and JOSE N.
Executive Director
SARMIENTO, respondents.

Reference is also made to the following rules embodied in Part III, Article IV,
The petitioner invokes security of tenure against his claimed removal without
Integrated Reorganization Plan as approved by P.D. 1 and amended by P.D. 336
legal cause. The respondents assert he is not entitled to the guaranty because he
and P.D. 337, on the career executive service:
is not a career official. These are the legal issues. The facts are as follows:

c. Appointment. Appointment to appropriate classes in the Career

Tomas D. Achacoso was appointed Administrator of the Philippine Overseas
Service shall be made by the Presidentfrom a list of career executive
Employment Administration on October 16, 1987, and assumed office on
eligibles recommended by the Board. Such appointments shall be
October 27, 1987. On January 2, 1990, in compliance with a request addressed
made on the basis of rank; provided that appointments to the higher
by the President of the Philippines to "all Department Heads, Undersecretaries,
ranks which qualify the incumbents to assignments as
Assistant Secretaries, Bureau Heads," and other government officials, he filed
undersecretary and heads of the bureaus and offices and equivalent
a courtesy resignation. This was accepted by the President on April 3, 1990,
positions shall be with the confirmation of the Commission on
"with deep regrets." On April 10, 1990, the Secretary of Labor requested him
Appointments. The President may, however, in exceptional cases,
to turn over his office to the Deputy Administrator as officer in-charge. In a
appoint any person who is not a Career Executive Service eligible,
letter dated April 19, 1990, he protested his replacement and declared he was
provided that such appointee shall subsequently take the required
not surrendering his office because his resignation was not voluntary but filed
Career Executive Service examination and that he shall not be
only in obedience to the President's directive. On the same date, respondent Jose
promoted to a higher class until he qualifies in such examination.
N. Sarmiento was appointed Administrator of the POEA, vice the petitioner.
(Emphasis supplied.)
Achacoso was informed thereof the following day and was again asked to
vacate his office. He filed a motion for reconsideration on April 23, 1990, but
this was denied on April 30, 1990. He then came to this Court for relief. The respondents contend that as the petitioner was not a career executive service
eligible at the time of his appointment, he came under the exception to the above
rule and so was subject to the provision that he "shall subsequently take the
In this petition for prohibition and mandamus, this Court is asked to annul the
required Career Executive Service examination and that he shall not be
appointment of Sarmiento and to prohibit the respondents from preventing the
promoted to a higher rank until he qualifies in such examination." Not having
petitioner from discharging his duties as Administrator of the POEA.
taken that examination, he could not claim that his appointment was permanent
and guaranteed him security of tenure in his position.
Achacoso contends that he is a member of the Career Service of the Civil
Service and so enjoys security of tenure, which is one of the characteristics of
It is settled that a permanent appointment can be issued only "to a person who
the Career Service as distinguished from the Non-Career Service.1 Claiming to
meets all the requirements for the position to which he is being appointed,
have the rank of undersecretary, he says he comes under Article IV, Section 5
including the appropriate eligibility prescribed." Achacoso did not. At best,
of P.D. 807, otherwise known as the Civil Service Decree, which includes in
therefore, his appointment could be regarded only as temporary. And being so,
the Career Service:
it could be withdrawn at will by the appointing authority and "at a moment's
notice," conformably to established jurisprudence.
3. Positions in the Career Executive Service; namely,
Undersecretary, Assistant Secretary, Bureau Director, Assistant
The Court, having considered these submissions and the additional arguments
Bureau Director, Regional Director, Assistant Regional Director,
of the parties in the petitioner's Reply and the Solicitor-General's Rejoinder,
Chief of Department Service and other officers of equivalent rank
must find for the respondents.
as may be identified by the Career Executive Service Board, all of
whom are appointed by the President.
The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not
His argument is that in view of the security of tenure enjoyed by the above-
possess the required qualifications. Such right will have to depend on the nature
named officials, it was "beyond the prerogatives of the President" to require
of his appointment, which in turn depends on his eligibility or lack of it. A
them to submit courtesy resignations. Such courtesy resignations, even if filed,
person who does not have the requisite qualifications for the position cannot be
should be disregarded for having been submitted "under duress," as otherwise
appointed to it in the first place or, only as an exception to the rule, may be
the President would have the power to remove career officials at pleasure, even
appointed to it merely in an acting capacity in the absence of appropriate
for capricious reasons. In support of this contention, he invokes Ortiz vs.
eligibles.3
Commission on Elections,2 where we observed that "to constitute a complete
and operative act of resignation, the officer or employee must show a clear
intention to relinquish" and that "a courtesy resignation cannot properly be The appointment extended to him cannot be regarded as permanent even if it
interpreted as a resignation in the legal sense for it is not necessarily a reflection may be so designated.
of a public official's intention to surrender his position." He concludes that as
his removal was illegal, there was no vacancy in the disputed office to which
respondent Sarmiento could have been validly appointed. The purpose of an acting or temporary appointment is to prevent a hiatus in the
discharge of official functions by authorizing a person to discharge the same
pending the selection of a permanent or another appointee.4 The person named
In his Comment, the Solicitor General concedes that the office of POEA in an acting capacity accepts the position under the condition that he shall
Administrator is a career executive service position but submits that the surrender the office once he is called upon to do so by the appointing authority.
petitioner himself is not a career executive service official entitled to security
of tenure. He offers the following certification from the Civil Service
Commission to show that the petitioner did not possess the necessary In these circumstances, the acting appointee is separated by a method of
terminating official relations known in the law of public officers as expiration
qualifications when he was appointed Administrator of the POEA in 1987:
of the term. His term is understood at the outset as without any fixity and
enduring at the pleasure of the appointing authority. When required to
CERTIFICATION relinquish his office, he cannot complain that he is being removed in violation
of his security of tenure because removal imports the separation of the
incumbent beforethe expiration of his term.5 This is allowed by the Constitution
This is to certify that per records of the Career Executive Service Board
only when it is for cause as provided by law. The acting appointee is separated
(CESB), Mr. Tomas D. Achacoso III has not participated in a Career Executive
Service Development Program (CESDP) and is not a CES eligible. This is to
precisely because his term has expired. Expiration of the term is not covered by
the constitutional provision on security of tenure.

There is a long line of cases affirming the rule that:

. . . One who holds a temporary appointment has no fixed tenure of

office; his employment can be terminated at the pleasure of the
appointing power, there being no need the show that the termination
is for cause.6

The petitioner contends that his appointment was really intended to be

permanent because temporary appointments are not supposed to exceed twelve
months and he was allowed to serve in his position for more than three years.
This is unacceptable. Even if that intention were assumed, it would not by itself
alone make his appointment permanent. Such an appointment did not confer on
the petitioner the appropriate civil service eligibility he did not possess at the
time he was appointed, nor did it vest him with the right to security of tenure
that is available only to permanent appointees.

The case of Luego vs. Civil Service Commission7 is not applicable because the
facts of that case are different. The petitioner in Luego was qualified and was
extended a permanent appointment that could not be withdrawn on the ground
that it was merely temporary. In the case at bar, the petitioner was not
eligible and therefore could be appointed at best only in a temporary capacity.
The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila vs.
Intermediate Appellate Court,8 Palma-Fernandez vs. De la Paz,9 and Dario vs.
Mison,10 are also not pertinent because they also
involved permanent appointees who could not be removed because of their
security of tenure.

It should be obvious from all the above observations that the petitioner could
have been validly replaced even if he had not filed his courtesy resignation. We
therefore do not have to rule on its legality. Suffice it to say that it could have
been a graceful way of withdrawing him from his office with all the formal
amenities and no asperity or discord if only he had not chosen to contest it. But
it was his right to do so, of course, although his challenge has not succeeded.
G.R. No. 127182 January 22, 2001
HON. ALMA G. DE LEON, Chairman, HON. THELMA P.
GAMINDE, Commissioner, and HON. RAMON P. ERENETA,
JR., Commissioner, Civil Service Commission, and SECRETARY RAFAEL
M. ALUNAN, III, Department of Interior and Local Government, petitioners,
vs.
HON. COURT OF APPEALS and JACOB F. MONTESA, respondents.
Can person who lacks the necessary qualifications for a public position be
appointed to it in a permanent capacity?
Before the Court is a Petition for Review on Certiorari assailing the April 25,
1996 Decision,1 and November 20, 1996 Resolution2 of the Court of Appeals in
CA-G.R. SP No. 38664, which set aside Resolution Nos. 953268 3 and
9552014 of the Civil Service Commission; and declared as null and void - (1)
Department Order No. 94-370,5 issued by the Department of Interior and Local
Government, relieving private respondent of his duties as Department Legal
Counsel/Director III and reassigning him as Director III (Assistant Regional
Director), Region XI; and (2) Administrative Order No. 235 issued by then
President Fidel V. Ramos, dropping private respondent from the rolls of public
service, for serious neglect of duty and absences without official
leave.1âwphi1.nêt
On August 28, 1986, private respondent Atty. Jacob F. Montesa, who is not a
Career Executive Service Officer (CESO) or a member of the Career Executive
Service, was appointed as "Ministry Legal Counsel - CESO IV in the Ministry
of Local Government" (now Department of Interior and Local Government
[hereafter referred to as Department]), by then Minister Aquilino Pimentel, Jr.
Private respondent's appointment was approved as permanent by the Civil
Service Commission.
Private respondent wrote a memorandum dated December 12,
1994,12 requesting for reconsideration of Department Order No. 94-370, but to
no avail. Private respondent appealed to the Civil Service Commission and the
latter issued Resolution No. 95-3268,13 dated May 23, 1995 which sustained his
reassignment to Region XI, on the ground that: 1) the subject reassignment was
not violative of the due process clause of the Constitution or of private
respondent's right to security of tenure; 2) the reassignment did not entail any
reduction in rank or status; 3) private respondent could be reassigned from one
station to another without his consent as the rule against unconsented transfer
applies only to an officer who is appointed to a particular station, and not merely
assigned thereto. Private respondent's motion for reconsideration of the
aforesaid Resolution was similarly denied by the Commission in Resolution No.
955201 dated August 22, 1995.14
On October 10, 1995, the Department directed private respondent to report to
his new assigned post in Region XI, stressing that his continued non-compliance
with D.O. No. 94-370 is prejudicial to the interest of public service, particularly
in Region XI. Private respondent was also warned that upon his failure to
comply, the Department shall be constrained to consider him on Absence
Without Leave (AWOL) and as a consequence, drop him from the rolls of
public service.15
Instead of complying therewith, private respondent, on October 23, 1995, filed
with the Court of Appeals a Petition for Review with prayer for the issuance of
a temporary restraining order and/or preliminary injunction. No restraining
order or preliminary injunction, however, was issued by the court,.
On December 13, 1995, then President Fidel V. Ramos, upon the
recommendation of the Department, issued Administrative Order No. 235,
dropping private respondent Atty. Jacob F. Montesa, Director III. Legal
Service, from the roster of public servants for serious neglect of duty and
absences without leave (AWOL).16

On July 25, 1987, then President Corazon C. Aquino promulgated Executive

On April 25, 1996, the Court of Appeals rendered its decision in favor of private
Order No. 262, reorganizing the Department. On April 8, 1988, then Secretary
respondent, holding as follows:
Luis T. Santos, who succeeded Minister Pimental, designated Nicanor M.
Patricio as chief, Legal Service in place of private respondent who, in turn, was
directed to report to the office of the Secretary to perform special assignments. WHEREFORE, the petition is GRANTED. Department Order No.
94-370 in so far as it affects petitioner, Jacob F. Montesa, is hereby
declared null and void. Petitioner is hereby ordered retained in his
Consequently, private respondent filed before this Court a petition for quo
position as "Chief, Legal Service" or "Department Legal Counsel"
warranto, docketed as G.R. No. 83470,6against then Secretary Luis T. Santos
in the DILG, without loss of seniority, rank, emolument and
and Nicanor Patricio. On September 26, 1990, we ruled in favor of private
privileges. The DILG Secretary is hereby ordered to release to
respondent Montesa and ordered his reinstatement to his former position.
petitioner his withheld salaries corresponding to the period July 15-
21, 1995 and his back salaries, if also withheld, corresponding to
Meanwhile, Republic Act No. 6758 (otherwise known as the Salary the period July 22, 1995 to September 27, 1995.
Standardization Law) took effect on July 1, 1989. Pursuant thereto, the position
of "Department Service Chiefs," which include the Department Legal Counsel,
Finding that petitioner has not paid the amount of P 500.00 as
was reclassified and ranked with "Assistant Bureau Directors" under the generic
deposit for costs (page 1, Rollo), he is hereby ordered to pay the
position title of "Director III".7
same to the Clerk of this Court within five (5) days from receipt of
this decision
Hence, in the execution of the decision of this Court in G.R. No. 83470,
respondent was reinstated to the position: "Department Legal Counsel and/or
SO ORDERED.17
Director III."8

Both petitioners and private respondent moved for reconsideration. In his

On July 26, 1994, then Secretary Rafael M. Alunan III, citing as reasons the
Motion for Clarification and/or Partial Motion for Reconsideration, private
interest of public service and the smooth flow of operations in the concerned
respondent prayed for "backwages to cover the period from October 5, 1995 up
offices, issued Department Order No. 94-370, relieving private respondent of
to his actual reinstatement to office, the period from August 1, 1994 to July 14,
his current duties and responsibilities and reassigning him as "Director III
1995 having been covered by approved leave of absences with pay, while the
(Assistant Regional Director), Region XI,"9 Private respondent, however, did
period July 15-21, 1995 is the period where his name was included in the payroll
not report to his new assigned position. Instead, he filed a 90-day sick leave,
but release of his salary was illegally withheld by private respondent Alunan on
and upon the expiration thereof on December 5, 1994, he submitted a
July 21, 1995, and the period of July 22 to October 4, 1995 is the period where
memorandum for then acting Secretary Alexander P. Aguirre, signifying his
respondent Alunan withheld his salary even before CSC Resolution No. 95-
intention to re-assume his position as Department Legal Counsel/Chief, Legal
9201 (should be No. 95-3268) became executory."18 Respondent likewise
Services.10
prayed for the award of RATA during the period of his illegal dismissal.

Thereupon, Acting Secretary Aguirre, by memorandum dated December 6,

Petitioners, on the other hand, posited that the decision of the Court of Appeals
1994,11 reiterated to private respondent that the issuance of Department Order
is not confluent with Administrative Order No. 235, issued on December 13,
No. 94-370, transferring him to Region XI, was in keeping with the interest of
1995 by then President Ramos which dropped petitioner from the roster of
the public service and of the Career Executive Service (CES) provision on
public servants. They further argued that until and unless the said Order is
assignment, reassignment, and transfer. Accordingly, private respondent was
declared illegal and/or invalid, the presumption is in favor of its validity and it
advised to report to Region XI immediately.
is incumbent upon private respondent to comply therewith so as not to prejudice
the public service.
On November 20, 1996, the Court of Appeals issued the assailed resolution
modifying its April 25, 1996 decision, thus:
WHEREFORE, premises considered, the Motion for
Reconsideration filed by public respondents is hereby DENIED for
lack of merit. Petitioner's Motion for Clarification and/or Partial
Motion for Reconsideration is hereby GRANTED. The dispositive
portion of the decision is hereby modified to read as follows:
WHEREFORE, the petition is GRANTED. Department
Order No. 94-370 in so far as it affects petitioner, Jacob
Montesa, and Administrative Order No. 235 are hereby
declared null and void. Petitioner is hereby
ordered reinstated to his position as "Chief Legal
Service" or "Department legal Counsel" in the DILG,
without loss of seniority, rank, emolument and
privileges. The DILG Secretary is hereby ordered to
release to petitioner his withheld
salaries and backwages,
including allowances(RATA) and other benefits, to whic
h petitioner would have been entitled had he not been il
legallyremoved, corresponding to the period July 15,
1995 up to his actual reinstatement to office.
19
SO ORDERED.
Dissatisfied, petitioners filed the instant petition with this Court, contending
that:
I
REPONDENT COURT GARVELY ERRED IN RULING THAT
RESPONDENT MONTESA'S REASSIGNMENT IS ACTUALLY
AN UNCONSENTED TRANSFER.
II
RESPONDENT COURT GRAVELY ERRED IN RULING THAT
RESPONDENT MONTESA'S "TRANFER" CHANGES HIS
APPOINMENT FROM PERMANENT TO TEMPORARY AND
VIOLATES HIS CONSTITUTIONAL RIGHT TO SECURITY OF
TENURE.
III
RESPONDENT COURT GRAVELY ERRED AND
COMMITTED GRAVE ABUSE OF DISCRETION IN
ORDERING THE REINSTATEMENT OF RESPONDENT
MONTESA IN OPEN DISREGARD OF ADMINISTRATIVE
ORDER NO. 235 ISSUED BY THE PRESIDENT OF THE
PHILIPPINES DROPPING HIM FROM THE ROSTER OF
PUBLIC SERVANTS.
IV
RESPONDENT COURT GRAVELY ERRED IN RULING THAT
RESPONDENT MONTESA IS ENTITLED TO BACKAGES,
INCLUDING RATA AND OTHER BENEFITS,
CORRESPONDING TO THE PERIOD FROM JULY 15, 1995 UP
TO HIS ACTUAL REINSTATEMENT.20
Succinctly put, the pivot of inquiry here boils down to the nature of the
appointment of private respondent Atty. Jacob F. Montesa.
At the outset, it must be stressed that the position of Ministry Legal Counsel –
CESO IV is embraced in the Career Executive Service. Under the Integrated
Reorganization Plan, appointment thereto shall be made as follows:
c. Appointment. Appointment to appropriate classes in the Career
Executive Service shall be made by the President from a list of
career executive eligible recommended by the Board. Such
appointments shall be made on the basis of rank; provided that
appointments to the higher ranks which qualify the incumbents to
assignments as undersecretary and heads of bureaus and offices and
equivalent positions shall be with the confirmation of the
Commission on Appointments. The President may, however, in
exceptional cases, appoint any person who is not a Career Executive
Service eligible; provided that such appointee shall subsequently
take the required Career Executive Service examination and that he
shall not be promoted to a higher class until qualifies in such
examination.
At the initial implementation of this Plan, an incumbent who holds
a permanent appointment to a position embraced in the Career
Executive Service shall continue to hold his position, but may not
advance to a higher class of position in the Career Executive Service
unless or until he qualifies for membership in the Career Executive
Service.21
Corollarily, the required Career Executive Service eligibility may be then
acquired in the following manner:
Career Executive Service Eligibility
Passing the CES examination entitles the examinee to a conferment
of a CES eligibility and the inclusion of his name in the roster of
CES eligible. Conferment of CES eligibility is done by the Board
through a formal Board Resolution after an evaluation of the
examinee's performance in the four stages of the CES eligibility
examinations.22
In the case at bar, there is no question that private respondent does not have the
required CES eligibility. As admitted by private respondent in his Comment, he
is "not a CESO or a member of the Career Executive Service."
In the case of Achacoso v. Macaraig, et al.,23 the Court held that:
It is settled that a permanent appointment can be issued only 'to a
person who meets all the requirements for the position to which he
is being appointed, including the appropriate eligibility prescribed."
Achacoso did not. At best, therefore, his appointment could be
regarded only as temporary. And being so, it could be withdrawn at
will by the appointing authority and "at a moment's notice,"
conformably to established jurisprudence.
The Court, having considered these submissions and the additional
arguments of the parties in the petitioner's Reply and the Solicitor-
General's Rejoinder, must find for the respondents.
The mere fact that a position belongs to the Career Service does not
automatically confer security or tenure on its occupant even if he
does not possess the required qualifications. Such right will have to
depend on the nature of his appointment, which in turn depends on
his eligibility or lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the first
place or, only as an exception to the rule, may be appointed to it
merely in an acting capacity in the absence of appropriate eligible.
The appointment extended to him cannot be regarded as permanent
even if it may be so designated.
Evidently, private respondent's appointment did not attain permanency. Not
having taken the necessary Career Executive Service examination to obtain
requisite eligibility, he did not at the time of his appointment and up to the
present, possess the needed eligibility for a position in the Career Executive
Service. Consequently, his appointment as Ministry Legal Counsel – CESO IV/
Department Legal Counsel and/or Director III, was merely temporary. Such
being the case, he could be transferred or reassigned without violating the
constitutionally guaranteed right to security of tenure.1âwphi1.nêt
Private respondent capitalizes on his lack of CES eligibility by adamantly
contending that the mobility and flexibility concepts in the assignment of
personnel under the Career Executive Service24 do not apply to him because he
is not a Career Executive Service Officer. Obviously, the contention is without
merit. As correctly pointed out by the Solicitor General, non-eligible holding
permanent appointments to CES positions were never meant to remain
immobile in their status. Otherwise, their lack of eligibility would be a premium
vesting them with permanency in the CES positions, a privilege even their
eligible counterparts do not enjoy.

Then too, the cases on unconsented transfer invoked by private respondent find
no application in the present case. To reiterate, private respondent's
appointment is merely temporary; hence, he could be transferred or reassigned
to other positions without violating his right to security of tenure.

WHEREFORE, based on the foregoing, the Petition is GRANTED. The April

25, 1996 Decision and the November 20, 1996 Resolution of the Court of
Appeals in CA-G.R. SP No. 38664 are REVERSED and SET
ASIDE. Resolution Nos. 953268 and 9555201 of the Civil Service Commission
are REINSTATED. No pronouncement as to costs.
G.R. No. 194994 April 16, 2013
EMMANUEL A. DE CASTRO, Petitioner,
vs.
EMERSON S. CARLOS, Respondent.
Before us is a Petition for the issuance of a writ of quo warranto under Rule 66
filed by Emmanuel A. de Castro (petitioner) seeking to oust respondent
Emerson S. Carlos (respondent) from the position of assistant general manager
for operations (AGMO) of the Metropolitan Manila Development Authority
(MMDA).
On 29 July 2009, then President Gloria Macapagal Arroyo appointed petitioner
as AGM0.1 His appointment was concurred in by the members of the Metro
Manila Council in MMDA Resolution No. 09-10, Series of 2009.2 He took his
oath on 17 August 2009 before then Chairperson Bayani F. Fernando. 3
Meanwhile, on 29 July 2010, Executive Secretary Paquito Ochoa issued Office
of the President (OP) Memorandum Circular No. 2, Series of 2010, amending
OP Memorandum Circular No. 1, Series of 2010.
OP Memorandum Circular No. 2 states:
2. All non-Career Executive Service Officials (non-CESO) occupying Career
Executive Service (CES) positions in all agencies of the executive branch shall
remain in office and continue to perform their duties and discharge their
responsibility until October 31, 2010 or until their resignations have been
accepted and/or until their respective replacements have been appointed or
designated, whichever comes first, unless they are reappointed in the
meantime.4
On 30 July 2010, Atty. Francis N. Tolentino, chairperson of the MMDA, issued
Office Order No. 106,5 designating Corazon B. Cruz as officer-in-charge (OIC)
of the Office of the AGMO. Petitioner was then reassigned to the Legal and
Legislative Affairs Office, Office of the General Manager. The service vehicle
and the office space previously assigned to him were withdrawn and assigned
to other employees.
Subsequently, on 2 November 2010, Chairperson Tolentino designated
respondent as OIC of the Office of the AGMO by virtue of Memorandum Order
No. 24,6 which in turn cited OP Memorandum Circular No. 2 as basis.
Thereafter, the name of petitioner was stricken off the MMDA payroll, and he
was no longer paid his salary beginning November 2010.
Petitioner sought a clarification7 from the Career Executive Service Board
(CESB) as to the proper classification of the position of AGMO. In her
reply,8 Executive Director Maria Anthonette Allones (Executive Director
Allones), CESO I, stated that the position of AGMO had not yet been classified
and could not be considered as belonging to the Career Executive Service
(CES). She further stated that a perusal of the appointment papers of petitioner
showed that he was not holding a coterminous position. In sum, she said, he
was not covered by OP Memorandum Circular Nos. 1 and 2.
Petitioner was later offered the position of Director IV of MMDA Public Health
and Safety Services and/or MMDA consultant. He turned down the offer,
claiming that it was a demotion in rank.
Demanding payment of his salary and reinstatement in the monthly
payroll,9 petitioner sent a letter on 5 December 2010 to Edenison Faisan,
assistant general manager (AGM) for Finance and Administration; and Lydia
Domingo, Director III, Administrative Services. For his failure to obtain an
action or a response from MMDA, he then made a formal demand for his
reinstatement as AGMO through a letter addressed to the Office of the President
on 17 December 2010.10
However, on 4 January 2011, President Benigno S. Aquino III (President
Aquino) appointed respondent as the new AGMO of the MMDA. 11 On 10
January 2011, the latter took his oath of office.
Hence, the instant Petition.
The Office of the Solicitor General (OSG), representing respondent, filed its
Comment on 19 August 2011.12However, upon motion of petitioner, it was
disqualified from representing respondent. Thus, a private law firm13entered an
appearance as counsel for respondent and adopted the Comment filed by the
OSG.14
Petitioner filed his Reply on 17 November 2011.
ISSUES
Petitioner raises the following issues15 for the consideration of this Court:
(1) Whether respondent Emerson S. Carlos was validly appointed by President
Aquino to the position of AGMO of the MMDA;
(2) Whether petitioner Emmanuel A. de Castro is entitled to the position of
AGMO; and
(3) Whether or not respondent should pay petitioner the salaries and financial
benefits he received during his illegal tenure as AGMO of the MMDA.
THE COURT’S RULING
Petitioner contends that Section 2(3), Article IX(B) of the 1987 Constitution
guarantees the security of tenure of employees in the civil service. He further
argues that his appointment as AGMO is not covered by OP Memorandum
Circular No. 2, since it is not a CES position as determined by the CESB.
On the other hand, respondent posits that the AGMO position belongs to the
CES; thus, in order to have security of tenure, petitioner, must be a Career
Executive Service official (CESO). Respondent maintains that the function of
an AGM is executive and managerial in nature. Thus, considering that petitioner
is a non-CESO occupying a CES position, he is covered by OP Memorandum
Circular Nos. 1 and 2. Respondent likewise raises the issue of procedural
infirmity in the direct recourse to the Supreme Court by petitioner, who thereby
failed to adhere to the doctrine of hierarchy of courts.
Hierarchy of Courts
As to the procedural issue, petitioner submits that a direct recourse to this Court
is warranted by the urgent demands of public interest, particularly the veritable
need for stability in the civil service and the protection of the rights of civil
servants. Moreover, considering that no other than the President of the
Philippines is the appointing authority, petitioner doubts if a trial court judge or
an appellate court justice, with a prospect of promotion in the judiciary would
be willing to go against a presidential appointment.
Although Section 5(1) of Article VIII of the 1987 Constitution explicitly
provides that the Supreme Court has original jurisdiction over petitions for
certiorari, prohibition, mandamus, quo warranto, and habeas corpus, the
jurisdiction of this Court is not exclusive but is concurrent with that of the Court
of Appeals and regional trial court and does not give petitioner unrestricted
freedom of choice of court forum.16 The hierarchy of courts must be strictly
observed.
Settled is the rule that "the Supreme Court is a court of last resort and must so
remain if it is to satisfactorily perform the functions assigned to it by the
fundamental charter and immemorial tradition."17 A disregard of the doctrine of
hierarchy of courts warrants, as a rule, the outright dismissal of a petition. 18
A direct invocation of this Court’s jurisdiction is allowed only when there are
special and important reasons that are clearly and specifically set forth in a
petition.19 The rationale behind this policy arises from the necessity of
preventing (1) inordinate demands upon the time and attention of the Court,
which is better devoted to those matters within its exclusive jurisdiction; and
(2) further overcrowding of the Court’s docket.20
In this case, petitioner justified his act of directly filing with this Court only
when he filed his Reply and after respondent had already raised the procedural
infirmity that may cause the outright dismissal of the present Petition. Petitioner
likewise cites stability in the civil service and protection of the rights of civil
servants as rationale for disregarding the hierarchy of courts.
Petitioner’s excuses are not special and important circumstances that would
allow a direct recourse to this Court. More so, mere speculation and doubt to
the exercise of judicial discretion of the lower courts are not and cannot be valid
justifications to hurdle the hierarchy of courts. Thus, the Petition must be
dismissed.
Nature of the AGMO Position
Even assuming that petitioner’s direct resort to this Court is permissible, the
Petition must still be dismissed for lack of merit.
"A petition for quo warranto is a proceeding to determine the right of a person
to use or exercise a franchise or an office and to oust the holder from the
enjoyment, thereof, if the claim is not well-founded, or if his right to enjoy the
privilege has been forfeited."21 Where the action is filed by a private person, in
his own name, he must prove that he is entitled to the controverted position,
otherwise, respondent has a right to the undisturbed possession of the office.22
The controversy arose from the issuance of OP Memorandum Circular Nos. 1
and 2, which applies to all non-CESO’s occupying CES positions in all agencies
of the executive branch. Petitioner, being a non-CESO, avers that he is not
covered by these OP memoranda considering that the AGMO of the MMDA is
a non-CES position.
Career service includes the following:
(1) Open Career positions for appointment to which prior qualification in an
appropriate examination is required;
(2) Closed Career positions which are scientific, or highly technical in nature;
these include the faculty and academic staff of state colleges and universities,
and scientific and technical positions in scientific or research institutions which
shall establish and maintain their own merit systems;
(3) Positions in the Career Executive Service; namely, Undersecretary,
Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional
Director, Assistant Regional Director, Chief of Department Service and other
officers of equivalent rank as may be identified by the Career Executive Service
Board, all of whom are appointed by the President;
(4) Career officers, other than those in the Career Executive Service, who are
appointed by the President, such as the Foreign Service Officers in the
Department of Foreign Affairs;
(5) Commissioned officers and enlisted men of the Armed Forces which shall
maintain a separate merit system;
(6) Personnel of government-owned or controlled corporations, whether
performing governmental or proprietary functions, who do not fall under the
non-career service; and

In order to settle the controversy, there is a need to determine the nature of the
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.27 (Emphasis
contentious position of AGMO of the MMDA.
supplied)

Career vs. non-career

Section 4 of Republic Act No. (R.A.) 7924,23 otherwise known as the MMDA
Charter, specifically created the position of AGMO. It reads as follows:
Sec. 4 Metro Manila Council. x x x.
xxxx
The Council shall be headed by a Chairman, who shall be appointed by the
President and who shall continue to hold office at the discretion of the
appointing authority. He shall be vested with the rank, rights, privileges,
disqualifications, and prohibitions of a Cabinet member.
In Civil Service Commission v. Court of Appeals and PCSO,28 the Court
clarified the positions covered by the CES:
Thus, from the long line of cases cited above, in order for a position to be
covered by the CES, two elements must concur. First, the position must either
be (1) a position enumerated under Book V, Title I, Subsection A, Chapter 2,
Section 7(3) of the Administrative Code of 1987, i.e., Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director,
Assistant Regional Director, Chief of Department Service, or (2) a position of
equal rank as those enumerated, and identified by the Career Executive Service
Board to be such position of equal rank. Second, the holder of the position must
be a presidential appointee. Failing in any of these requirements, a position
cannot be considered as one covered by the third-level or CES. (Emphasis
supplied)

The Chairman shall be assisted by a General Manager, an Assistant General In sum, there are two elements required for a position to be considered as CES:
Manager for Finance and Administration, an Assistant General Manager for
Planning and an Assistant General Manager for Operations, all of whom shall
1) The position is among those enumerated under Book V, Title I, Subtitle A,
be appointed by the President with the consent and concurrence of the majority
Chapter 2, Section 7(3) of the Administrative Code of 1987 OR a position of
of the Council, subject to civil service laws and regulations. They shall enjoy
equal rank as those enumerated and identified by the CESB to be such position
security of tenure and may be removed for cause in accordance with law.
of equal rank; AND
(Emphasis supplied)

2) The holder of the position is a presidential appointee. Records show that in

Executive Order No. (E.O.) 292, otherwise known as The Revised
reply29 to Chairperson Tolentino’s query on whether the positions of general
Administrative Code of 1987, provides for two classifications of positions in
manager and AGM of the MMDA are covered by the CES,30 the CESB – thru
the civil service: career and non-career.24
Executive Director Allones – categorically stated that these positions are not
among those covered by the CES.
Career service is characterized by the existence of security of tenure, 25 as
contradistinguished from non-career service whose tenure is coterminous with
Upon petitioner’s separate inquiry on the matter,31 the CESB similarly
that of the appointing authority; or subject to the latter’s pleasure; or limited to
responded that the AGMO’s position could not be considered as belonging to
a period specified by law or to the duration of a particular project for which
the CES.32 Additionally, Executive Director Allones said that petitioner was not
purpose the appointment was made.26
covered by OP Memorandum Circular Nos. 1 and 2, to wit:

Applying the foregoing distinction to the instant case, this Court finds that an
A cursory perusal of your appointment papers would show that it does not bear
AGMO holds a career position, considering that the MMDA Charter
any indication that you are holding a coterminous appointment. Neither your
specifically provides that AGMs enjoy security of tenure – the core
position as AGMO can be considered as created in excess of the authorized
characteristic of a career service, as distinguished from a non-career service
staffing pattern since RA 7924, the law that created the MMDA clearly
position.
provided for such position. As further stated above, your position will not fall
under paragraph No. 2 of OP MC 1 because it is not yet considered as belonging
CES vs. non-CES to the CES. Hence, we posit that you are not covered by OP MC 1 and 2. 33
However, contrary to Executive Director Allones’ statement, the CESB,
through Resolution No. 799 already declared certain positions meeting the
criteria set therein as embraced within the CES.
It is worthy of note that CESB Resolution No. 799 was issued on 19 May 2009,
even prior to petitioner’s appointment on 29 July 2009. Moreover, as early as
31 May 1994, the above classification was already embodied in CSC Resolution
No. 34-2925, circularized in CSC Memorandum Circular 21, Series of 1994.
Resolution No. 799 classified the following positions as falling within the
coverage of the CES:
a. The Career Executive Service includes the positions of Undersecretary,
Assistant Secretary, Bureau director, Assistant Bureau Director, regional
Director (department-wide and bureau-wide), Assistant Regional Director
(department-wide and bureau-wide), and Chief of Department Service;
b. Unless provided otherwise, all other managerial or executive positions in the
government, including government-owned or controlled corporations with
original charters are embraced within the CES provided that they meet the
following criteria:
i.) The position is a career position;
ii.) The position is above division chief level; and,
iii.) The duties and responsibilities of the position require performance of
executive and managerial functions.
Without a doubt, the AGMO position is not one of those enumerated in the
above-cited paragraph(a) but it clearly falls under paragraph(b) considering that
it belongs to a government-owned and controlled corporation with an original
charter. The nature of AGMO is clear from the provisions of the MMDA
Charter.
First, we have already determined that an AGMO is a career position that enjoys
security of tenure by virtue of the MMDA Charter.
Second, it is undisputed that the position of AGMO is above the division chief
level, which is equivalent to the rank of assistant secretary with Salary Grade
29.34
Third, a perusal of the MMDA Charter readily reveals that the duties and
responsibilities of the position require the performance of executive and
managerial functions.
Section 12.4, Rule IV of the Rules and Regulations Implementing R.A. 7924
provides the powers, functions, duties and responsibilities of an AGMO, as
follows:
12.4 Assistant General Manager for Operations
The Assistant General Manager for Operations shall perform the following
functions:
a. Establish a mechanism for coordinating and operationalizing the delivery of
metro-wide basic services;
b. Maintain a monitoring system for the effective evaluation of the
implementation of approved policies, plans and programs for the development
of Metropolitan Manila;
c. Mobilize the participation of local government units, executive departments
or agencies of the national government, and the private sector in the delivery of
metro-wide services; and
d. Operate a central radio communication system.
He shall perform such other duties as are incidental or related to the above
functions or as may be assigned from time to time.
An AGMO performs functions that are managerial in character; exercises
management over people, resource, and/or policy; and assumes functions like
planning, organizing, directing, coordinating, controlling, and overseeing the
activities of MMDA. The position requires the application of managerial or
supervisory skills necessary to carry out duties and responsibilities involving
functional guidance, leadership, and supervision.
For the foregoing reasons, the position of AGMO is within the coverage of the
CES.
In relation thereto, positions in the career service, for which appointments
require examinations, are grouped into three major levels:35
Sec. 8. Classes of positions in the Career Service. — (1) Classes of positions in
the career service appointment to which requires examinations shall be grouped
into three major levels as follows:
(a) The first level shall include clerical, trades, crafts and custodial service
positions which involve non-professional or sub-professional work in a non-
supervisory or supervisory capacity requiring less than four years of collegiate
studies;
(b) The second level shall include professional, technical, and scientific
positions which involve professional, technical or scientific work in a non-
supervisory or supervisory capacity requiring at least four years of college work
up to Division Chief levels; and
(c) The third level shall cover positions in the Career Executive Service.
(Emphasis supplied)
Entrance to different levels requires corresponding civil service
eligibilities.36 Those at the third level (CES positions) require career service
executive eligibility (CSEE) as a requirement for permanent appointment.37
Evidently, an AGMO should possess all the qualifications required by third-
level career service within the CES. In this case, petitioner does not have the
required eligibility. Therefore, we find that his appointment to the position of
AGMO was merely temporary.
Amores v. Civil Service Commission38 is instructive as to the nature of
temporary appointments in the CES. The Court held therein that an appointee
cannot hold a position in a permanent capacity without the required CES
eligibility:
We begin with the precept, firmly established by law and jurisprudence that a
permanent appointment in the civil service is issued to a person who has met
the requirements of the position to which the appointment is made in accordance
with law and the rules issued pursuant thereto. An appointment is permanent
where the appointee meets all the requirements for the position to which he is
being appointed, including the appropriate eligibility prescribed, and it is
temporary where the appointee meets all the requirements for the position
except only the appropriate civil service eligibility.
xxxx
With particular reference to positions in the career executive service (CES), the
requisite civil service eligibility is acquired upon passing the CES examinations
administered by the CES Board and the subsequent conferment of such
eligibility upon passing the examinations. Once a person acquires eligibility, he
either earns the status of a permanent appointee to the CES position to which
he has previously been appointed, or he becomes qualified for a permanent
appointment to that position provided only that he also possesses all the other
qualifications for the position. Verily, it is clear that the possession of the
required CES eligibility is that which will make an appointment in the career
executive service a permanent one. Petitioner does not possess such eligibility,
however, it cannot be said that his appointment to the position was permanent.
Indeed, the law permits, on many occasions, the appointment of non-CES Therefore, considering that petitioner is an appointee of then President Arroyo
eligibles to CES positions in the government in the absence of appropriate whose term ended on 30 June 2010, petitioner’s term of office was also deemed
eligibles and when there is necessity in the interest of public service to fill terminated upon the assumption of President Aquino.
vacancies in the government. But in all such cases, the appointment is at best
merely temporary as it is said to be conditioned on the subsequent obtention of
Likewise, it is inconsequential that petitioner was allegedly replaced by another
the required CES eligibility. This rule, according to De Leon v. Court of
non-CESO eligible. In a quo warranto proceeding, the person suing must show
Appeals, Dimayuga v. Benedicto, Caringal v. Philippine Charity Sweepstakes
that he has a clear right to the office allegedly held unlawfully by another.
Office, and Achacoso v. Macaraig, is invariable even though the given
Absent a showing of that right, the lack of qualification or eligibility of the
appointment may have been designated as permanent by the appointing
supposed usurper is immaterial.41
authority.

xxxx
Security of tenure in the career executive service, which presupposes a
permanent appointment, takes place upon passing the CES examinations
administered by the CES Board x x x.
All the foregoing considered, the petition merits an outright dismissal for
disregarding the hierarchy of courts and petitioner’s lack of cause of action
against respondent for failure to sufficiently show that he has undisturbed rights
to the position of AGMO of the MMDA.
WHEREFORE, premises considered, the Petition is DENIED.

Petitioner undisputedly lacked CES eligibility. Thus, he did not hold the
SO ORDERED.
position of AGMO in a permanent capacity or acquire security of tenure in that
position. Otherwise stated, his appointment was temporary and "co-terminus
with the appointing authority."39 In Carillo v. CA,40 this Court ruled that "one
who holds a temporary appointment has no fixed tenure of office; his
employment can be terminated at the pleasure of the appointing power, there
being no need to show that the termination is for cause." Therefore, we find no
violation of security of tenure when petitioner was replaced by respondent upon
the latter’s appointment to the position of AGMO by President Aquino.

Even granting for the sake of argument that the position of AGMO is yet to be
classified by the CESB, petitioner’s appointment is still deemed coterminous
pursuant to CESB Resolution No. 945 issued on 14 June 2011, which reads:

WHEREAS, on November 23, 2010, the Supreme Court in the case of PCSO
v. CSC, G.R. NO. 185766 and G.R. No. 185767 limited the coverage of
positions belonging to the CES to positions requiring Presidential
appointments.

WHEREAS, in the same vein, CES positions have now become synonymous to
third level positions by virtue of the said ruling.

WHEREFORE, foregoing premises considered, the Board RESOLVES, as it is

hereby RESOLVED, to issue the following guidelines to clarify the policy on
the coverage of CES and its classification:

1. For career service positions requiring Presidential appointments expressly

enumerated under Section 7(3), Chapter 2, Subtitle A, Title 1, Book V of the
Administrative Code of 1987 namely:

Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau

Director, Regional Director, Assistant Regional Director, and Chief of
Department Service, no classification of position is necessary to place them
under the coverage of the CES, except if they belong to Project Offices, in
which case a position classification is required, in consultation with the
Department of Budget and Management (DBM).

2. For positions requiring Presidential appointments other than those

enumerated above, a classification of positions is necessary which shall be
conducted by the Board, upon request of the head of office of the government
department/agency concerned, to place them under the coverage of the CES
provided they comply with the following criteria:

i.) The position is a career position;

ii.) The position is above division chief level; and,

iii.)The duties and responsibilities of the position require the performance of

executive and managerial functions.

All appointments to positions which have not been previously classified as part
of the CES would be deemed co-terminus with the appointing authority.
(Emphasis supplied)
G.R. No. 149451 May 8, 2003
REMEDIOS S. PADILLA, petitioner,
vs.
THE HONORABLE CIVIL SERVICE COMMISSION and
DEPARTMENT OF LABOR and EMPLOYMENT,respondents.
On January 18, 1982, petitioner Remedios Padilla assumed the permanent
position of Clerk II in the then Ministry of Labor and Employment. On May 11,
1983, petitioner was promoted to the position of Labor Development Assistant.
Without waiting for the CSC's approval of her appointment, she assumed her
new position.
On March 4, 1985, CSC-NCR Regional Director Aurora de Leon sent a 1st
Indorsement to the Minister of Labor and Employment disapproving petitioner's
appointment as Labor Development Assistant on the ground that she failed to
meet the eligibility requirement for the position. Maria Esther Manigque,
Officer-In-Charge of the Institute of Labor and Manpower Studies, sought
reconsideration of respondent CSC's ruling by pointing out petitioner's
satisfactory performance. It was denied. In May 1985, petitioner resigned from
the service citing "personal reasons."
On July 28, 1985, petitioner took the Career Service Examination (Professional
Level). After passing the same in August, 1985, she re-applied at the respondent
Department of Labor and Employment (DOLE). She was appointed as Casual
Research Assistant on October 17, 1988, effective until November 30, 1988.
Upon expiration of her appointment, the same was extended to December 31,
1988. From January 1989 until December 1989, petitioner occupied the position
of Casual Technical.
Due to the implementation of RA 6758, otherwise known as the Salary
Standardization Act of 1989, casual items such as Casual Research Assistant
and Casual Technical were abolished. Petitioner was offered the position of
Clerk II (the only available permanent position then) for which the Selection
Board deemed her qualified. However, she declined the offer.
On January 2, 1990, petitioner was appointed Casual Clerk III, effective till the
end of June 1990. After the expiration of her appointment as a casual employee,
petitioner was no longer given any position. She then requested the monetary
conversion of her unused sick and vacation leaves which respondent DOLE
granted.
Nevertheless, petitioner appealed her alleged termination as casual employee to
the CSC but this was dismissed4for having been filed out of time.
Thereafter, petitioner filed a letter-complaint addressed to then Secretary of
Justice Teofisto Guingona. The letter-complaint was forwarded to respondent
DOLE and later to the CSC for appropriate action. Acting on the complaint, the
CSC treated the same as a petition to seek relief. In its Resolution No. 980256
dated February 5, 1998, the CSC dismissed the petition and denied petitioner's
claim. Her motion for reconsideration was likewise denied in CSC Resolution
No. 981425 dated June 10, 1998. CTSDAI
Petitioner appealed the CSC resolutions to the Court of Appeals. On January
22, 2001, the appellate court rendered a decision, the dispositive portion of
which read:
WHEREFORE, in view of the foregoing, the petition is DENIED and
accordingly DISMISSED for lack of merit. Accordingly, the assailed
Resolution No. 98-0256 dated February 5, 1998 issued by the Civil Service
Commission dismissing the petitioner's appeal, as well as its Resolution No.
981425 dated June 10, 1998, is (sic) AFFIRMED.
SO ORDERED.5
The Court of Appeals held that the CSC had the power to revoke the
appointment of a public officer whose qualification did not meet the minimum
requirements of the law. To refute petitioner's contention that respondent DOLE
was obliged to give her a permanent position upon becoming eligible, the
appellate court ruled that, although the petitioner was a civil service eligible,
her acceptance of a temporary appointment as a casual vested her no right to
security of tenure. Her appointment depended exclusively on the pleasure of the
appointing authority.6
On July 4, 2001, the appellate court issued a resolution7 denying petitioner's
motion for reconsideration.
Hence, this appeal based on the following assignments of error:
I
WHETHER OR NOT THE TERMINATION OF PETITIONER IS
LEGAL.
II
WHETHER OR NOT THE DISMISSAL OF HER COMPLAINT
BY PUBLIC RESPONDENT CIVIL SERVICE COMMISSION
WAS PROPER UNDER THE CIRCUMSTANCES.8
Petitioner does not question anymore the disapproval of her appointment as
Labor Development Assistant due to her failure to meet the eligibility
requirements. However, she invokes her alleged right to be reinstated to a
permanent position considering that she has since attained the required civil
service eligibility and that she used to hold a permanent position. Petitioner
bewails the fact that she ended up as a casual employee despite her civil service
eligibility and without any derogatory record during her stint in the government.
To support her claim, she cites Section 24 (d) of PD 807, otherwise known as
the Civil Service Law of 1975, which states that "(a)ny person who has been
permanently appointed to a position in the career service and who has, through
no delinquency or misconduct, been separated therefrom, may be reinstated to
a position in the same level for which he is qualified."
She also contends that she was not accorded due process when she was removed
from her permanent position without prior notice. Neither was she given an
opportunity to explain why she should not be removed from office.
Did respondent DOLE violate petitioner's purported right to security of tenure?
We do not think so.
The jurisdiction of this Court over cases brought to it from the Court of Appeals
via Rule 45 of the Rules of Court is limited to reviewing errors of law. 9 The
factual findings of the Court of Appeals are generally conclusive and may not
be reviewed on appeal.10 We have good reason to apply this well-entrenched
principle in the instant case because the factual findings of the Court of Appeals
affirm the findings of fact of the CSC.
One of the exceptions to the rule is when the appellate court's factual
disquisitions are not supported by evidence.11In the case at bar, petitioner seeks
reinstatement on the ground that she was unjustly removed from the service,
which was contrary to the appellate court's finding that she voluntarily resigned.
Considering that petitioner's submission was premised on an alleged
misapprehension of facts, she had the burden of showing that the CSC and the
appellate court's findings of fact were not supported by evidence. 12 However,
she fell short of that responsibility and ended up with hollow claims.
On the other hand, the Office of the Solicitor General (OSG), representing
respondents CSC and DOLE, adequately proved that petitioner voluntarily
resigned and was never removed from the service. The OSG presented as
evidence petitioner's own letter in 1990 addressed to Sec. Flerida Ruth
Romero,13 then Special Assistant to the President and Presidential Legislative
Liaison Officer, which read:
In 1985, The Civil Service Commission (CSC) disapproved my appointment
because the qualification standard for the position of Labor Development
Assistant was raised from sub-professional to professional level. Despite my
best effort to appeal before the Civil Service Commission, I never got a
favorable response. I was hurt so much that I decided to resign in April
1985.14 (Italics supplied)
Petitioner used to occupy the permanent position of Clerk II before the
disapproval of her appointment for Labor Development Assistant, a higher
permanent position. Thereafter, she voluntarily resigned and later came back to
occupy casual positions only despite passing the eligibility requirement for a
permanent position. Like removal for just cause, voluntary resignation results
in the abdication of all present and future rights accorded to an employee and
in the severance of all work-related ties between the employer and the
employee. When she returned to work for respondent DOLE, the same was not
a continuation of her previous service but the start of a new work slate.
Petitioner could not therefore demand from respondent DOLE her reinstatement
to a permanent position under Section 24 (d) of PD 807 inasmuch as she was
never unjustly removed.

We agree with the observation of the OSG that when petitioner re-applied for
and was offered the position of Casual Research Assistant and later Casual
Technical, she readily and unqualifiedly accepted the said offer. Having
accepted the position of a casual employee, petitioner should have known that
she had no security of tenure and could thus be separated from the service
anytime.

We also take note of the fact that in December 1989, after finishing her contract
as a Casual Technical, respondent DOLE offered to petitioner the permanent
position of Clerk II (the only available permanent position then) for which the
Selection Board deemed her qualified. However, she declined the offer and
instead opted to accept another casual position as Casual Clerk III. Respondent
DOLE therefore gave her the opportunity to re-assume a permanent position but
petitioner was apparently bent on acquiring a position equal to a Labor
Development Assistant, a position she could not obtain by right due to her
earlier resignation. On the ground of estoppel, petitioner is barred from
asserting her right to a permanent position.

Not having been unjustly removed from the service, it follows that petitioner's
right to due process was not violated. In fact, there was no need to furnish her a
notice of termination since, as a casual employee, petitioner was aware of the
date of expiration of her temporary appointment.

WHEREFORE, the petition is hereby DENIED. No costs.

G.R. No. 109704 January 17, 1995
ALFREDO B. FELIX, petitioner,
vs.
DR. BRIGIDA BUENASEDA, in her capacity as Director, and ISABELO
BAÑEZ, JR., in his capacity as Administrator, both of the National Center
for Mental Health, and the CIVIL SERVICE COMMISSION, respondents.
Taking advantage of this Court's decisions involving the removal of various
civil servants pursuant to the general reorganization of the government after the
EDSA Revolution, petitioner assails his dismissal as Medical Specialist I of the
National Center for Mental Health (formerly the National Mental Hospital) as
illegal and violative of the constitutional provision on security of tenure
allegedly because his removal was made pursuant to an invalid reorganization.
In Mendoza vs. Quisumbing1 and the consolidated cases involving the
reorganization of various government departments and agencies we held:
We are constrained to set aside the reorganizations
embodied in these consolidated petitions because the
heads of departments and agencies concerned have
chosen to rely on their own concepts of unlimited
discretion and "progressive" ideas on reorganization
instead of showing that they have faithfully complied
with the clear letter and spirit of the two Constitutions
and the statutes affecting reorganization.2
In De Guzman vs. CSC3 , we upheld the principle, laid down by Justice J.B.L.
Reyes in Cruz vs. Primicias4 that a valid abolition of an office neither results in
a separation or removal, likewise upholding the corollary principle that "if the
abolition is void, the incumbent is deemed never to have ceased to hold office,"
in sustaining therein petitioner's right to the position she held prior to the
reorganization.
The instant petition on its face turns on similar facts and issues, which is, that
petitioner's removal from a permanent position in the National Center for
Mental Health as a result of the reorganization of the Department of Health was
void.
However, a closer look at the facts surrounding the instant petition leads us to
a different conclusion.
After passing the Physician's Licensure Examinations given by the Professional
Regulation Commission in June of 1979, petitioner, Dr. Alfredo B. Felix, joined
the National Center for Mental Health (then the National Mental Hospital) on
May 26, 1980 as a Resident Physician with an annual salary of P15,264.00.5 In
August of 1983, he was promoted to the position of Senior Resident
Physician6 a position he held until the Ministry of Health reorganized the
National Center for Mental Health (NCMH) in January of 1988, pursuant to
Executive Order No. 119.
Under the reorganization, petitioner was appointed to the position of Senior
Resident Physician in a temporary capacity immediately after he and other
employees of the NCMH allegedly tendered their courtesy resignations to the
Secretary of Health.7 In August of 1988, petitioner was promoted to the position
of Medical Specialist I (Temporary Status), which position was renewed the
following year.8
In 1988, the Department of Health issued Department Order No. 347 which
required board certification as a prerequisite for renewal of specialist positions
in various medical centers, hospitals and agencies of the said department.
Specifically, Department Order No. 347 provided that specialists working in
various hospitals and branches of the Department of Health be recognized as
"Fellows" of their respective specialty societies and/or "Diplomates" of their
specialty boards or both. The Order was issued for the purpose of upgrading the
quality of specialties in DOH hospitals by requiring them to pass rigorous
theoretical and clinical (bedside) examinations given by recognized specialty
boards, in keeping up with international standards of medical practice.
Upon representation of the Chiefs of Hospitals of various government hospitals
and medical centers, (then) Secretary of Health Alfredo Bengzon issued
Department Order No. 347 providing for an extension of appointments of
Medical Specialist positions in cases where the termination of medical specialist
who failed to meet the requirement for board certification might result in the
disruption of hospital services. Department Order No. 478 issued the following
guidelines:
1. As a general policy, the provision of Department
Order No. 347, Sec. 4 shall apply unless the Chief of
Hospital requests for exemption, certifies that its
application will result in the disruption of the delivery
service together with the steps taken to implement
Section 4, and submit a plan of action, lasting no more
than 3-years, for the eventual phase out of non-Board
certified medical specialties.
2. Medical specialist recommended for extension of
appointment shall meet the following minimum criteria:
a. DOH medical specialist
certified
b. Has been in the service of the
Department at least three (3) years
prior to December 1988.
c. Has applied or taken the
specialty board examination.
3. Each recommendation for extension of appointment
must be individually justified to show not only the
qualification of the recommendee, but also what steps he
has taken to be board certified.
4. Recommendation for extension of appointment shall
be evaluated on a case to case basis.
5. As amended, the other provisions of Department
Order No. 34/s. 1988 stands.
Petitioner was one of the hundreds of government medical specialist who would
have been adversely affected by Department Order No. 347 since he was no yet
accredited by the Psychiatry Specialty Board. Under Department Order No.
478, extension of his appointment remained subject to the guidelines set by the
said department order. On August 20, 1991, after reviewing petitioner's service
record and performance, the Medical Credentials Committee of the National
Center for Mental Health recommended non-renewal of his appointment as
Medical Specialist I, informing him of its decision on August 22, 1991. He was,
however, allowed to continue in the service, and receive his salary, allowances
and other benefits even after being informed of the termination of his
appointment.
On November 25, 1991, an emergency meeting of the Chiefs of Service was
held to discuss, among other matters, the petitioner's case. In the said meeting
Dr. Vismindo de Grecia, petitioner's immediate supervisor, pointed out
petitioner's poor performance, frequent tardiness and inflexibility as among the
factors responsible for the recommendation not to renew his
appointment.9 With one exception, other department heads present in the
meeting expressed the same opinion, 10 and the overwhelming concensus was
for non-renewal. The matter was thereafter referred to the Civil Service
Commission, which on February 28, 1992 ruled that "the temporary
appointment (of petitioner) as Medical Specialist I can be terminated at any time
. . ." and that "[a]ny renewal of such appointment is within the discretion of the
appointing authority." 11 Consequently, in a memorandum dated March 25,
1992 petitioner was advised by hospital authorities to vacate his cottage since
he was no longer with said memorandum petitioner filed a petition with the
Merit System Protection Board (MSPB) complaining about the alleged
harassment by respondents and questioning the non-renewal of his
appointment. In a Decision rendered on July 29, 1992, the (MSPB) dismissed
petitioner's complaint for lack of merit, finding that:
As an apparent incident of the power to appoint, the
renewal of a temporary appointment upon or after its
expiration is a matter largely addressed to the sound
 discretion of the appointing authority. In this case, there
is no dispute that Complainant was a temporary
employee and his appointment expired on August 22,
1991. This being the case, his re-appointment to his
former position or the renewal of his temporary
appointment would be determined solely by the proper
appointing authority who is the Secretary, Department of
Health upon the favorable recommendation of the Chief
of Hospital III, NCMH. The Supreme Court in the case
of Central Bank vs. Civil Service Commission G.R. Nos.
80455-56 dated April 10, 1989, held as follows:
The power of appointment is essentially a political
question involving considerations of wisdom which only
the appointing authority can decide.
In this light, Complainant therefore, has no basis in law
to assail the non-renewal of his expired temporary
appointment much less invoke the aid of this Board
cannot substitute its judgment to that of the appointing
authority nor direct the latter to issue an appointment in
the complainant's favor.
Regarding the alleged Department Order secured by the
complainant from the Department of Health (DOH), the
Board finds the same inconsequential. Said Department
Order merely allowed the extension of tenure of Medical
Specialist I for a certain period but does not mandate the
renewal of the expired appointment.
The Board likewise finds as baseless complainant's allegation of harassment. It
should be noted that the subsistence, quarters and laundry benefits provided to
the Complainant were in connection with his employment with the NCMH.
Now that his employment ties with the said agency are severed, he eventually
loses his right to the said benefits. Hence, the Hospital Management has the
right to take steps to prevent him from the continuous enjoyment thereof,
including the occupancy of the said cottage, after his cessation form office.
In sum, the actuations of Dr. Buenaseda and Lt. Col. Balez are not shown to
have been tainted with any legal infirmity, thus rendering as baseless, this
instant complaint.
Said decision was appealed to the Civil Service Commission which dismissed
the same in its Resolution dated December 1, 1992. Motion for Reconsideration
was denied in CSC Resolution No. 93-677 dated February 3, 1993, hence this
appeal, in which petitioner interposes the following assignments of errors:
I akin to a college student asking to be sent back to high school and staying there.
THE PUBLIC RESPONDENT CIVIL SERVICE
COMMISSION ERRED IN HOLDING THAT BY
SUBMITTING HIS COURTESY RESIGNATION
AND ACCEPTING HIS TEMPORARY
APPOINTMENT PETITIONER HAD EFFECTIVELY
DIVESTED HIMSELF OF HIS SECURITY OF
TENURE, CONSIDERING THE CIRCUMSTANCES
OF SUCH COURTESY RESIGNATION AND
ACCEPTANCE OF APPOINTMENT.
II
THE RESPONDENT COMMISSION IN NOT
DECLARING THAT THE CONVERSION OF THE
PERMANENT APPOINTMENT OF PETITIONER TO
TEMPORARY WAS DONE IN BAD FAITH IN THE
GUISE OF REORGANIZATION AND THUS
INVALID, BEING VIOLATIVE OF THE
PETITIONER'S RIGHT OF SECURITY OF TENURE.
Responding to the instant petition, 12 the Solicitor General contends that 1) the
petitioner's temporary appointment after the reorganization pursuant to E.O.
No. 119 were valid and did not violate his constitutional right of security of
tenure; 13 2) petitioner is guilty of estoppel or laches, having acquiesced to such
temporary appointments from 1988 to 1991; 14 and 3) the respondent
Commission did not act with grave abuse of discretion in affirming the
petitioner's non-renewal of his appointment at the National Center for Mental
Hospital.15
We agree.
The patent absurdity of petitioner's posture is readily obvious.
A residency or resident physician position in a medical specialty is never a
permanent one. Residency connotes training and temporary status. It is the step
taken by a physician right after post-graduate internship (and after hurdling the
Medical Licensure Examinations) prior to his recognition as a specialist or sub-
specialist in a given field.
A physician who desires to specialize in Cardiology takes a required three-year
accredited residency in Internal Medicine (four years in DOH hospitals) and
moves on to a two or three-year fellowship or residency in Cardiology before
he is allowed to take the specialty examinations given by the appropriate
accrediting college. In a similar manner, the accredited Psychiatrist goes
through the same stepladder process which culminates in his recognition as a
fellow or diplomate (or both) of the Psychiatry Specialty Board. 16 This upward
movement from residency to specialist rank, institutionalized in the residency
training process, guarantees minimum standards and skills and ensures that the
physician claiming to be a specialist will not be set loose on the community
without the basic knowledge and skills of his specialty. Because acceptance and
promotion requirements are stringent, competitive, and based on merit.
acceptance to a first year residency program is no guaranty that the physician
will complete the program. Attribution rates are high. Some programs are
pyramidal. Promotion to the next post-graduate year is based on merit and
performance determined by periodic evaluations and examinations of
knowledge, skills and bedside manner. 17 Under this system, residents, specialty
those in university teaching hospitals 18 enjoy their right to security of tenure
only to the extent that they periodically make the grade, making the situation
quite unique as far as physicians undergoing post-graduate residencies and
fellowships are concerned. While physicians (or consultants) of specialist rank
are not subject to the same stringent evaluation procedures, 19 specialty
societies require continuing education as a requirement for accreditation for
good standing, in addition to peer review processes based on performance,
mortality and morbidity audits, feedback from residents, interns and medical
students and research output. The nature of the contracts of resident physicians
meet traditional tests for determining employer-employee relationships, but
because the focus of residency is training, they are neither here nor there.
Moreover, stringent standards and requirements for renewal of specialist-rank
positions or for promotion to the next post-graduate residency year are
necessary because lives are ultimately at stake.
Petitioner's insistence on being reverted back to the status quo prior to the
reorganizations made pursuant to Executive Order No. 119 would therefore be
From the position of senior resident physician, which he held at the time of the
government reorganization, the next logical step in the stepladder process was
obviously his promotion to the rank of Medical Specialist I, a position which he
apparently accepted not only because of the increase in salary and rank but
because of the prestige and status which the promotion conferred upon him in
the medical community. Such status, however, clearly carried with it certain
professional responsibilities including the responsibility of keeping up with the
minimum requirements of specialty rank, the responsibility of keeping abreast
with current knowledge in his specialty rank, the responsibility of completing
board certification requirements within a reasonable period of time. The
evaluation made by the petitioner's peers and superiors clearly showed that he
was deficient in a lot of areas, in addition to the fact that at the time of his non-
renewal, he was not even board-certified.
It bears emphasis that at the time of petitioner's promotion to the position of
Medical Specialist I (temporary) in August of 1988, no objection was raised by
him about the change of position or the temporary nature of designation. The
pretense of objecting to the promotion to specialist rank apparently came only
as an afterthought, three years later, following the non-renewal of his position
by the Department of Health.
We lay stress to the fact that petitioner made no attempt to oppose earlier
renewals of his temporary Specialist I contracts in 1989 and 1990, clearly
demonstrating his acquiescence to — if not his unqualified acceptance of the
promotion (albeit of a temporary nature) made in 1988. Whatever objections
petitioner had against the earlier change from the status of permanent senior
resident physician to temporary senior physician were neither pursued nor
mentioned at or after his designation as Medical Specialist I (Temporary). He
is therefore estopped from insisting upon a right or claim which he had plainly
abandoned when he, from all indications, enthusiastically accepted the
promotion. His negligence to assert his claim within a reasonable time, coupled
with his failure to repudiate his promotion to a temporary position, warrants a
presumption, in the words of this Court in Tijam vs. Sibonghanoy, 20that he
"either abandoned (his claim) or declined to assert it."

There are weighty reasons of public policy and convenience which demand that
any claim to any position in the civil service, permanent, temporary of
otherwise, or any claim to a violation of the constitutional provision on security
of tenure be made within a reasonable period of time. An assurance of some
degree of stability in the civil service is necessary in order to avoid needless
disruptions in the conduct of public business. Delays in the statement of a right
to any position are strongly discouraged. 21 In the same token, the failure to
assert a claim or the voluntary acceptance of another position in government,
obviously without reservation, leads to a presumption that the civil servant has
either given up his claim of has already settled into the new position. This is the
essence of laches which is the failure or neglect, for an unreasonable and
unexplained length of time to do that which, by exercising due diligence, could
or should have been done earlier; it is the negligence or omission to assert a
right within a reasonable time, warranting a presumption that the party entitled
to assert it either has abandoned it or declined to assert it. 22

In fine, this petition, on its surface, seems to be an ordinary challenge against

the validity of the conversion of petitioner's position from permanent resident
physician status to that of a temporary resident physician pursuant to the
government reorganization after the EDSA Revolution. What is unique to
petitioner's averments is the fact that he hardly attempts to question the validity
of his removal from his position of Medical Specialist I (Temporary) of the
National Center for Mental Health, which is plainly the pertinent issue in the
case at bench. The reason for this is at once apparent, for there is a deliberate
and dishonest attempt to a skirt the fundamental issue first, by falsely claiming
that petitioner was forced to submit his courtesy resignation in 1987 when he
actually did not; and second, by insisting on a right of claim clearly abandoned
by his acceptance of the position of Medical Specialist I (Temporary), which is
hence barred by laches.

The validity of the government reorganization of the Ministry of Health

pursuant to E.O. 119 not being the real issue in the case at bench, we decline to
make any further pronouncements relating to petitioner's contentions relating to
the effect on him of the reorganization except to say that in the specific case of
the change in designation from permanent resident physician
to temporary resident physician, a change was necessary, overall, to rectify a
ludicrous situation whereby some government resident physicians were
erroneously being classified as permanent resident physicians in spite of the
inherently temporary nature of the designation. The attempts by the Department
of Health not only to streamline these positions but to make them conform to
current standards of specialty practice is a step in a positive direction. The
patient who consults with a physician of specialist rank should at least be safe
in the assumption that the government physician of specialist rank: 1.) has
completed all necessary requirements at least assure the public at large that
those in government centers who claim to be specialists in specific areas of
Medicine possess the minimum knowledge and skills required to fulfill that first
and foremost maxim, embodied in the Hippocratic Oath, that they do their
patients no harm. Primium non nocere.

Finally, it is crystal clear, from the facts of the case at bench, that the petitioner
accepted a temporary appointment (Medical Specialist I). As respondent Civil
Service Commission has correctly pointed out 23, the appointment was for a
definite and renewable period which, when it was not renewed, did not involve
a dismissal but an expiration of the petitioner's term.
G.R. No. 128082 April 18, 2001 Petitioner on May 20, 1995 then filed a "Petition for Certiorari and/or Review"
before this Court which, however, referred the same to the respondent Court of
Appeals. In a Decision promulgated on January 6, 1997, respondent Court of
EDITHA G. PABU-AYA, petitioner,
Appeals denied due course and dismissed the said petition. The pertinent
vs.
portion of said Decision of the Court of Appeals reads as follows:
THE COURT OF APPEALS

"Petitioner's quest for reinstatement as utility worker is also

Petitioner Editha G. Pabu-aya was an employee of the Provincial Board of
unavailing as her prayer was also denied by the Civil Service
Negros Occidental, also called the Sangguniang Panlalawigan of the said
Commission per Resolution 94-3197 dated June 14, 1994, and
province. She started as a casual laborer on July 1, 1973. On November 14,
further upheld in the Resolution No. 95-2145 dated May 23,
1986 she was appointed as Utility Worker on a permanent status. She was later
1995.11 Moreover, the Solicitor General's Office, in representation
appointed as Bookbinder II, on a temporary status, on September 16, 1991. On
of the Civil Service Commission, correctly maintained that
October 16, 1992, Romeo J. Gamboa, Vice Governor of Negros Occidental,
petitioner having accepted the position of Bookbinder II, aware of
issued a Memorandum2 informing her that her temporary appointment as
the temporary nature of such appointment, she is deemed to have
Bookbinder II had already expired on September 16, 1992, and that
lost and/or waived whatever right or privileged [sic] insofar as her
consequently she could no longer continue in the service. On October 23, 1992,
tenurial security is concerned. For, an employee is entitled only to
she wrote the Sangguniang Panlalawigan and acknowledge therein her failure
such security of tenure as the appointment papers actually
to perform her duties satisfactorily as Bookbinder II and promised that she
confer.1âwphi1.nêt
would improve her performance should her appointment be renewed. 3 On
January 29, 1993, she wrote to the then President Fidel V. Ramos appealing for
assistance regarding her dismissal allegedly without due process.4 Her letter was xxx xxx xxx
indorsed to the Provincial Governor of Negros Occidental by Director Miguel
V. Sison, Jr.5 of the Presidential Action Center. Acting on this indorsement, the
WHEREFORE, the petition for certiorari and prohibition is hereby
then Governor Rafael Conscolluela proposed the re-appointment of petitioner
DENIED DUE COURSE, and is DISMISSED, and the Resolution
Pabu-aya as a Utility Worker under the following terms and conditions:
Nos. 94-3178, and 95-2145 dated June 14, 1994 and March 23,
1995, respectively, of the respondent Civil Service Commission are
a. That she execute an undertaking to the effect that she promises to AFFIRMED."12
perform the function of a Utility Worker and other related works
which may be assigned by her immediate supervisor.
The petitioner then timely filed with this Court the present petition for review
on certiorari, under Rule 45 of the revised Rules of Court, but it was erroneously
b. That her accumulated leave credits of 221.37 days must be applied captioned as "Petition for Certiorari."
for, otherwise, it shall be forfeited. She starts anew accumulating
leave credits after six months continuous service. This is so because
The petitioner raised the following assignment of errors:
of a gap in the service.

c. That her re-appointment can not be retro-acted September 16,
1992 because there was an incumbent to the position to which she is
considered during said date.6
None of the above conditions was acceptable to nor followed by the petitioner.
On October 29, 1993 the petitioner withdrew her appointment papers as Utility
Worker in the General Services, effective September 16, 1992, from the Human
Resource Management Services upon learning that the same was not signed by
the then Governor Coscolluela. Instead, petitioner appealed the Memorandum
dated October 16, 1992 of Vice Governor Gamboa, terminating her
employment as Bookbinder II, to the Civil Service Commission (hereinafter
called the Commission, for brevity). In Resolution No. 94-04377 dated January
20, 1994, respondent Commission dismissed the said appeal of the petitioner.
Subsequently, the petitioner filed with the respondent Commission a request for
reinstatement to her original position as Utility Worker. In Resolution No. 94-
31788 dated June 14, 1994, respondent Commission denied the petitioner's
request for reinstatement to the position of Utility Worker for "lack of merit".
According to respondent Commission, when the petitioner accepted the
temporary appointment as Bookbinder II, without any objection, she accepted
the fact that, as a temporary employee, she has no security of tenure and may
be removed from the service without cause and due process.
Petitioner's motion for reconsideration was denied by respondent
Commission9 in its Resolution No. 95-2145, promulgated on March 23, 1995,
the pertinent portion of which reads as follows:
"From the records, it is clear that Pabu-aya accepted the position of
Bookbinder II under temporary status without any objection. When
she accepted her temporary appointment she also accepted the
conditions thereof. It is stressed that she, being a temporary
employee, has no security of tenure. Her appointment may be
terminated at anytime with or without cause or it may be renewed at
the pleasure of the appointing authority in the exercise of his
discretion. As Pabu-aya's temporary appointment was not renewed
after the expiration of the twelve (12) months [sic] period, her
separation from the service is valid."10
I
THE COURT OF APPEALS ERRED IN RULING THAT
PETITIONER'S ACCEPTANCE OF A TEMPORARY
APPOINTMENT WAS AN INDICATION OF HER
RELINQUSHMENT OF HER POSITION AS A PERMANENT
EMPLOYEE AND FORECLOSED HER RIGHT TO CONTEST
HER NON-REINSTATEMENT.
II
THE COURT OF APPEALS ERRED IN ARBITRARILY
DISREGARDING THE CONSTITUTIONAL RIGHT OF
PETITIONER TO SECURITY OF TENURE.
III
THE COURT OF APPEALS ERRED IN HOLDING THAT
PETITIONER IS GUILTY OF LACHES.
We regard to the first issue as to whether or not the respondent Court of Appeals
erred in ruling that petitioner's subsequent acceptance of a temporary
appointment (as Bookbinder II) was an indication of her relinquishment of her
position (Utility Worker) as a permanent employee and thus foreclosed her right
to contest her non-reinstatement, the Court of Appeals upheld and adopted the
findings of facts of respondent Commission, and correctly ruled on that issue.
As a general rule, the findings of fact of the respondents Commission and Court
of Appeals are accorded great weight. In a plethora of cases, this Court has held
that lower courts are in a better position to determine the truth of the matter in
litigation since the pieces of evidence are presented before them and they are
able to look into the credibility and the demeanor of the witnesses on the witness
stand. Furthermore, quasi-judicial bodies like the Civil Service Commission are
better-equipped in handling cases involving the employment status of
employees as those in the Civil Service since it is within the field of their
expertise. Factual findings of administrative agencies are generally held to be
binding and final so long as they are supported by substantial evidence in the
record of the case.13 It is not the function of the Supreme Court to analyze or
weigh all over again the evidence and credibility of witnesses presented before
the lower court, tribunal or office. The Supreme Court is not a trier of facts. Its
jurisdiction is limited to reviewing and revising errors of law imputed to the
lower court, its findings of fact being conclusive and not reviewable by this
Court.14 In the case at bar, respondent Court of Appeals acted properly when it
gave scant consideration to petitioner Pabu-aya's claim that had she known of
the demotion in status from that of a Utility Worker, on a permanent status, to
that of Bookbinder II on a temporary status, she would have stuck to her old
permanent position of Utility Worker rather than put to naught her long years
of service in the government. It is a fact, however, that petitioner Pabu-aya
freely took her oath of office as Bookbinder II on a temporary status. That the
said position carries an annual salary of P27,000.00 which is higher in amount
than that of a Utility Worker is not disputed. The new position of Bookbinder
II was in fact more beneficial to petitioner. Besides, the letter of the Vice
Governor dated October 8, 1991 denying petitioner's application to the position
of Clerk II explained that "the position of Bookbinder II is more beneficial on
your part for the reason that you can be re-appointed on a permanent
basis."15 That letter sufficiently informed the petitioner that her appointment as
Bookbinder II was in fact temporary; otherwise, there would be no more need
to re-appoint her on a permanent basis.
"It appears from the records that Pabu-aya was appointed
in a temporary capacity as Bookbinder II on September
16, 1991. Pursuant to Section 13 (b) Omnibus Rules
Implementing Book V of Administrative Code of 1987,
temporary appointment shall not exceed twelve (12)
months. Thus, Editha Pabu-aya, being a temporary
appointee, has no security of tenure. Non-renewal of a
temporary appointment after the expiration of the twelve
(12) month period is a valid mode of termination.
"WHEREFORE, foregoing premises considered, the
Commission hereby resolves to dismiss the appeal of Ms.
Editha Pabu-aya for lack of merit."
And petitioner did not appeal from the Civil Service Commission's
Resolution No. 94-0437, leaving the resolution to become final and
executory.19

According to the findings of the respondent Commission, which were adopted In sum, we find no reversible error in the challenged Decision of respondent
by respondent Court of Appeals, the claim of the petitioner that she was not Court of Appeals.
furnished a copy of her new appointment as Bookbinder II, showing the status
of her appointment as temporary in nature, cannot be relied upon. Her
appointment as Bookbinder II dated September 16, 1991 16 shows that it is
"Katayuang Temporary x x x." It is a normal office procedure to furnish a copy
of the appointment to the appointee, and to require the latter to take an oath of
office. All these must have given petitioner the opportunity to know and realize
that her new appointment as Bookbinder II was temporary and not permanent
in nature. She was not forced to accept the promotion. Since the new position
of Bookbinder II would be more beneficial to her in terms of remuneration, she
is fact accepted the same on her own free will. As aptly stated in the case
of Dosch vs. National Labor Relations Commission:17

"There is no law that compels an employee to accept a promotion,

as a promotion is in the nature of a gift or reward, which a person
has a right to refuse. When petitioner refused to accept his promotion
as Director of International Sales, he was exercising a right and he
cannot be punished for it as qui jure suo utitur neminem laedit. He
who uses his own legal right injures no one."

With regard to the second issue as to whether or not respondent Court of

Appeals erred in arbitrarily disregarding the constitutional right of petitioner to
security of tenure, it appears that the temporary employment of petitioner as
Bookbinder II was validly terminated. Petitioner's contention that she should be
reinstated to her former position as Utility Worker is untenable. Petitioner Pabu-
aya, by having accepted the temporary appointment of Bookbinder II, means
that she had abandoned or given up her former position of Utility Worker. Her
appointment as Bookbinder II on September 16, 1991, being temporary in
character, was terminable at the pleasure of the appointing power with or
without cause. The letter of petitioner, dated October 23, 1992, 18 expressing
regret over her own less than satisfactory performance and promising to
improve her work should her appointment be renewed, also implies that there
were valid reasons for the proper authorities not to renew her temporary
appointment as Bookbinder II which expired on September 16, 1992. Besides,
pursuant to Section 13 (b) Omnibus Rules Implementing Book V of the
Administrative Code of 1987, a temporary appointment shall not exceed twelve
(12) months.

As regards the third issue of whether or not respondent Court of Appeals erred
in holding that petitioner was guilty of laches, the record shows that petitioner
Pabu-aya did not appeal from respondent Commission's Resolution No. 94-
0437 dated January 20, 1994 dismissing her appeal from Vice-Governor Romeo
J. Gamboa's Memorandum dated October 16, 1992 terminating her temporary
employment as Bookbinder II. Quoted below is the pertinent portion of the
Decision of the Court of Appeals, to wit:

And the Commission, per Resolution No. 94-0437 dated January 20,
1994 dismissed her appeal, by stating:

"Ms. Editha Pabu-aya, former Bookbinder, Sangguniang

Panlalawigan Office, Bacolod City, appeals from the
Memorandum dated October 16, 1992 of the Vice
Governor, Bacolod City, terminating her temporary
appointment.