G.R. No.
140335 December 13, 2000 However, on February 24, 1998, petitioner sought
THELMA P. GAMINDE, petitioner,
vs.
COMMISSION ON AUDIT and/or Hon. CELSO D.
GANGAN, Hon. RAUL C. FLORES and EMMANUEL
M. DALMAN, respondents.
DECISION
PARDO, J.:
The Case
The case is a special civil action of certiorari seeking to
annul and set aside two "decisions" of the Commission
on Audit ruling that petitioner’s term of office as
Commissioner, Civil Service Commission, to which she
was appointed on June 11, 1993, expired on February
02, 1999, as set forth in her appointment paper.
The Facts
On June 11, 1993, the President of the Philippines
appointed petitioner Thelma P. Gaminde, ad
interim,Commissioner, Civil Service Commission. She
assumed office on June 22, 1993, after taking an oath
of office. On September 07, 1993, the Commission on
Appointment, Congress of the Philippines confirmed
the appointment. We quote verbatim her appointment
paper:
"11 June 1993
"Madam:
"Pursuant to the provisions of existing laws, you are
hereby appointed, ad interim, COMMISSIONER, CIVIL
SERVICE COMMISSION, for a term expiring
February 2, 1999.
"By virtue hereof, you may qualify and enter upon the
performance of the duties of the office, furnishing this
Office and the Civil Service Commission with copies of
your oath of office."1
The basic issue raised is whether the term of office of
clarification from the Office of the President as to the
expiry date of her term of office. In reply to her request,
the Chief Presidential Legal Counsel, in a letter dated
April 07, 19982opined that petitioner’s term of office
would expire on February 02, 2000, not on February
02, 1999.
Relying on said advisory opinion, petitioner remained
in office after February 02, 1999. On February 04,
1999, Chairman Corazon Alma G. de Leon, wrote the
Commission on Audit requesting opinion on whether or
not Commissioner Thelma P. Gaminde and her co-
terminous staff may be paid their salaries
notwithstanding the expiration of their appointments on
February 02, 1999.
On February 18, 1999, the General Counsel,
Commission on Audit, issued an opinion that "the term
of Commissioner Gaminde has expired on February
02, 1999 as stated in her appointment conformably
with the constitutional intent."3
Consequently, on March 24, 1999, CSC Resident
Auditor Flovitas U. Felipe issued notice of disallowance
No. 99-002-101 (99), disallowing in audit the salaries
and emoluments pertaining to petitioner and her co-
terminous staff, effective February 02, 1999.4
On April 5, 1999, petitioner appealed the disallowance
to the Commission on Audit en banc. On June 15,
1999, the Commission on Audit issued Decision No.
99-090 dismissing petitioner’s appeal. The
Commission on Audit affirmed the propriety of the
disallowance, holding that the issue of petitioner’s term
of office may be properly addressed by mere reference
to her appointment paper which set the expiration date
on February 02, 1999, and that the Commission is
bereft of power to recognize an extension of her term,
not even with the implied acquiescence of the Office of
the President.5
In time, petitioner moved for reconsideration; however,
on August 17, 1999, the Commission on Audit denied
the motion in Decision No. 99-129.6
Hence, this petition.7
The Issue
Atty. Thelma P. Gaminde, as Commissioner, Civil
Service Commission, to which she was appointed on
June 11, 1993, expired on February 02, 1999, as
stated in the appointment paper, or on February 02,
2000, as claimed by her.
The Court’s Ruling
The term of office of the Chairman and members of the
Civil Service Commission is prescribed in the 1987
Constitution, as follows:
"Section 1 (2). The Chairman and the Commissioners
shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed,
the Chairman shall hold office for seven years, a
Commissioner for five years, and another
Commissioner for three years, without reappointment.
Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or
acting capacity."8
The 1973 Constitution introduced the first system of a
regular rotation or cycle in the membership of the Civil
Service Commission. The provision on the 1973
Constitution reads:
"x x x The Chairman and the Commissioners shall be
appointed by the Prime Minister for a term of seven
years without reappointment. Of the Commissioners
first appointed, one shall hold office for seven years,
another for five years, and the third for three years.
Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor."9
Actually, this was a copy of the Constitutional
prescription in the amended 1935 Constitution of a
rotational system for the appointment of the Chairman
and members of the Commission on Elections. The
Constitutional amendment creating an independent
Commission on Elections provides as follows:
"Section 1. There shall be an independent Commission
on Elections composed of a Chairman and two other
Members to be appointed by the President with the
consent of the Commission on Appointments, who
shall hold office for a term of nine years and may not
be reappointed. Of the Members of the Commission
first appointed, one shall hold office for nine years,
another for six years, and the third for three years. The
Chairman and the other Members of the Commission
on Elections may be removed from office only by
impeachment in the manner provided in this
Constitution."10
In Republic vs. Imperial,11 we said that "the operation
of the rotational plan requires two conditions, both
indispensable to its workability: (1) that the terms of the
first three (3) Commissioners should start on a
common date, and, (2) that any vacancy due to death,
resignation or disability before the expiration of the
term should only be filled only for the unexpired
balance of the term."12
Consequently, the terms of the first Chairmen and
Commissioners of the Constitutional Commissions
under the 1987 Constitution must start on a common
date, irrespective of the variations in the dates of
appointments and qualifications of the appointees, in
order that the expiration of the first terms of seven, five
and three years should lead to the regular recurrence
of the two-year interval between the expiration of the
terms.13
Applying the foregoing conditions to the case at bar,
we rule that the appropriate starting point of the terms
of office of the first appointees to the Constitutional
Commissions under the 1987 Constitution must be on
February 02, 1987, the date of the adoption of the 1987
Constitution. In case of a belated appointment or
qualification, the interval between the start of the term
and the actual qualification of the appointee must be
counted against the latter.14
In the law of public officers, there is a settled distinction
between "term" and "tenure." "[T]he term of an office
must be distinguished from the tenure of the
incumbent. The term means the time during which the
officer may claim to hold office as of right, and fixes the
interval after which the several incumbents shall
succeed one another. The tenure represents the term
during which the incumbent actually holds the office.
The term of office is not affected by the hold-over. The
tenure may be shorter than the term for reasons within
or beyond the power of the incumbent."15
In concluding that February 02, 1987 is the proper
starting point of the terms of office of the first
appointees to the Constitutional Commissions of a
staggered 7-5-3 year terms, we considered the plain
language of Article IX (B), Section 1 (2), Article IX (C),
Section 1 (2) and Article IX (D), Section 1 (2) of the
1987 Constitution that uniformly prescribed a seven-
year term of office for Members of the Constitutional
Commissions, without re-appointment, and for the first
appointees terms of seven, five and three years,
without re-appointment. In no case shall any Member
be appointed or designated in a temporary or acting
capacity. There is no need to expressly state the
beginning of the term of office as this is understood to
coincide with the effectivity of the Constitution upon its
ratification (on February 02, 1987).
On the other hand, Article XVIII, Transitory Provisions,
1987 Constitution provides:
"SEC. 15. The incumbent Members of the Civil Service
Commission, the Commission on Elections, and the
Commission on Audit shall continue in office for one
year after the ratification of this Constitution, unless
they are sooner removed for cause or become
incapacitated to discharge the duties of their office or
appointed to a new term thereunder. In no case shall
any Member serve longer than seven years including
service before the ratification of this Constitution."16
What the above quoted Transitory Provisions
contemplate is "tenure" not "term" of the incumbent
Chairmen and Members of the Civil Service
Commission, the Commission on Elections and the
Commission on Audit, who "shall continue in office for
one year after the ratification of this Constitution,
unless they are sooner removed for cause or become
incapacitated to discharge the duties of their office or
appointed to a new term thereunder." The term
"unless" imports an exception to the general
rule.17 Clearly, the transitory provisions mean that the
incumbent members of the Constitutional
Commissions shall continue in office for one year after
the ratification of this Constitution under their existing
appointments at the discretion of the appointing power,
who may cut short their tenure by: (1) their removal
from office for cause; (2) their becoming incapacitated
to discharge the duties of their office, or (3) their
appointment to a new term thereunder, all of which
events may occur before the end of the one year period
after the effectivity of the Constitution.
However, the transitory provisions do not affect the
term of office fixed in Article IX, providing for a seven-
five-three year rotational interval for the first appointees
under this Constitution.
At the time of the adoption of the 1987 Constitution, the
incumbent Chairman and members of the Civil Service
Commission were the following: (1) Chairperson
Celerina G. Gotladera. She was initially appointed as
OIC Chairman on March 19, 1986, and appointed
chairman on December 24, 1986, which she assumed
on March 13, 1987. (2) Atty. Cirilo G. Montejo. On June
25, 1986, President Corazon C. Aquino appointed him
Commissioner, without any term. He assumed office
on July 9, 1986, and served until March 31, 1987, when
he filed a certificate of candidacy for the position of
Congressman, 2nd District, Leyte, thereby vacating his
position as Commissioner. His tenure was
automatically cut-off by the filing of his certificate of
candidacy. (3) Atty. Mario D. Yango. On January 22,
1985, President Ferdinand E. Marcos appointed him
Commissioner for a term expiring January 25, 1990.
He served until February 2, 1988, when his term ended
in virtue of the transitory provisions referred to. On May
30, 1988, President Aquino re-appointed him to a new
three-year term and served until May 31, 1991,
exceeding his lawful term, but not exceeding the
maximum of seven years, including service before the
ratification of the 1987 Constitution. Under this factual
milieu, it was only Commissioner Yango who was
extended a new term under the 1987 Constitution. The
period consumed between the start of the term on
February 02, 1987, and his actual assumption on May
30, 1988, due to his belated appointment, must be
counted against him.
Given the foregoing common starting point, we
compute the terms of the first appointees and their
successors to the Civil Service Commission under the
1987 Constitution by their respective lines, as follows:
First line : Chairman – seven-year term. February 02,
1987 to February 01, 1994. On January 30, 1988, the
President nominated Ms. Patricia A. Sto. Tomas
Chairman, Civil Service Commission. On March 02,
1988, the Commission on Appointments confirmed the
nomination. She assumed office on March 04, 1988.
Her term ended on February 02, 1994. She served
as de facto Chairman until March 04, 1995. On March
05, 1995, the President appointed then Social Welfare
Secretary Corazon Alma G. de Leon, Chairman, Civil
Service Commission, to a regular seven-year term.
This term must be deemed to start on February 02,
1994, immediately succeeding her predecessor,
whose term started on the common date of the terms
of office of the first appointees under the 1987
Constitution. She assumed office on March 22, 1995,
for a term expiring February 02, 2001.
This is shown in her appointment paper, quoted
verbatim as follows:
"March 5, 1995
"Madam:
"Pursuant to the provisions of Article VII, Section 16,
paragraph 2, of the Constitution, you are hereby
appointed, ad interim, CHAIRMAN, CIVIL SERVICE
COMMISSION, for a term expiring February 2, 2001.
"By virtue hereof, you may qualify and enter upon the
performance of the duties of the office, furnishing this
Office and the Civil Service Commission with copies of
your oath of office.
"(Sgd.) FIDEL V. RAMOS"
Second line : Commissioner – Five-year term.
February 02, 1987 to February 02, 1992. On January
30, 1988, the President nominated Atty. Samilo N.
Barlongay Commissioner, Civil Service Commission.
On February 17, 1988, the Commission on
Appointments, Congress of the Philippines, confirmed
the nomination. He assumed office on March 04, 1988.
His term ended on February 02, 1992. He served as de
facto Commissioner until March 04, 1993.
On June 11, 1993, the President appointed Atty.
Thelma P. Gaminde Commissioner, Civil Service
Commission, for a term expiring February 02,
1999.18 This terminal date is specified in her
appointment paper. On September 07, 1993, the
Commission on Appointments confirmed the
appointment. She accepted the appointment and
assumed office on June 22, 1993. She is bound by the
term of the appointment she accepted, expiring
February 02, 1999. In this connection, the letter dated
April 07, 1998, of Deputy Executive Secretary Renato
C. Corona19 clarifying that her term would expire on
February 02, 2000, was in error. What was submitted The line of succession, terms of office and tenure of the
to the Commission on Appointments was a nomination Chairman and members of the Civil Service
for a term expiring on February 02, 1999. Thus, the Commission may be outlined as follows:28
term of her successor20 must be deemed to start on
February 02, 1999, and expire on February 02, 2006. Chairman Term Tenure
Third line : Commissioner – Three-year term. February (7-year original)
02, 1987 to February 02, 1990. Atty. Mario D. Yango
was incumbent commissioner at the time of the
adoption of the 1987 Constitution. His extended tenure Sto. Tomas – 1st appointee Feb. 02, 1987 to Mar. 04,
ended on February 02, 1988. In May, 1988, President 1988 to
Corazon C. Aquino appointed him Commissioner, Civil
Service Commission to a new three-year term Feb. 02, 1994 March 08, 1995
thereunder. He assumed office on May 30, 1988. His
term ended on February 02, 1990, but served as de De Leon – 2nd appointee Feb. 02, 1994 to March 22,
facto Commissioner until May 31, 1991. On November 1995 to
26, 1991, the President nominated Atty. Ramon P.
Ereñeta as Commissioner, Civil Service Commission.
On December 04, 1991, the Commission on (incumbent) Feb. 02, 2001 Feb. 02, 2001
Appointments confirmed the nomination. He assumed
office on December 12, 1991, for a term expiring _______ - 3rd appointee Feb. 02, 2001 to
February 02, 1997.21
Feb. 02, 2008
Commendably, he voluntarily retired on February 02,
1997. On February 03, 1997, President Fidel V. Ramos 2nd Member Term Tenure
appointed Atty. Jose F. Erestain, Jr. Commissioner,
Civil Service Commission, for a term expiring February
02, 2004. He assumed office on February 11, 1997. (5-year original)
Barlongay – 1st appointee Feb. 02, 1987 to March 04,
Thus, we see the regular interval of vacancy every two
(2) years, namely, February 02, 1994, for the first 1988 to
Chairman,22 February 02, 1992, for the first five-year
term Commissioner,23 and February 02, 1990, for the Feb. 02, 1992 March 04, 1993
first three-year term Commissioner.24 Their successors
must also maintain the two year interval, namely:
Gaminde – 2nd appointee Feb. 02, 1992 to June 11,
February 02, 2001, for Chairman;25 February 02, 1999,
1993 to
for Commissioner Thelma P. Gaminde, and February
02, 1997, for Commissioner Ramon P. Ereñeta, Jr.
Feb. 02, 1999 Feb. 02, 2000
The third batch of appointees would then be having
terms of office as follows: Valmores – 3rd appointee Feb. 02, 1999 to Sept. 08,
2000 to
First line : Chairman, February 02, 2001 to February
02, 2008; Second line: Commissioner, February 02, (incumbent) Feb. 02, 2006 Feb. 02, 2006
1999 to February 02, 2006;26 and, Third line:
Commissioner, February 02, 1997 to February 02, 3rd Member Term Tenure
2004,27 thereby consistently maintaining the two-year
interval.
(3-year original)
Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 Director IV, NCR, Commission on Audit, and 2. Ramon Martinez
to ERNESTO C. EULALIA, Resident Auditor, National Department of National
Amnesty Commission. respondents. Defense 73,750.00
Feb. 02, 1990 May 31, 1991
CORONA, J.: 3. Cielito Mindaro,
Department of Justice 18,750.00
Ereñeta – 2nd appointee Feb. 02, 1990 to Dec. 12,
1991 to This petition for review1 seeks to annul the two 4. Purita Deynata
decisions of respondent Commission on Audit Department of Justice 62,000.00
Feb. 02, 1997 Feb. 02, 1997 (COA)2 dated July 26, 20013 and January 30,
2003,4 affirming the September 21, 1998 ruling5 of the 5. Alberto Bernardo
National Government Audit Office (NGAO). The latter Department of the
Erestain, Jr. – 3rd appointee Feb. 02, 1997 to Feb. 11, in turn upheld Auditor Ernesto C. Eulalia's order Interior And Local
1997 to disallowing the payment of honoraria to the Government 71,250.00
representatives of petitioner's ex officio members, per
COA Memorandum No. 97-038. 6. Stephen Villaflor
(incumbent) Feb. 02, 2004 Feb. 02, 2004
Department of the
Interior and Local
The Fallo Petitioner National Amnesty Commission (NAC) is a Government 26,250.00
government agency created on March 25, 1994 by
then President Fidel V. Ramos through Proclamation 7. Artemio Aspiras
WHEREFORE, we adjudge that the term of office of
No. 347. The NAC is tasked to receive, process and Department of Justice 1,250.00
Ms. Thelma P. Gaminde as Commissioner, Civil
Service Commission, under an appointment extended review amnesty applications. It is composed of seven
to her by President Fidel V. Ramos on June 11, 1993, members: a Chairperson, three regular members
appointed by the President, and the Secretaries of ₱255,750.00
expired on February 02, 1999. However, she served
as de facto officer in good faith until February 02, 2000, Justice, National Defense and Interior and Local
Government as ex officiomembers.6 Meanwhile, on April 28, 1999, the NAC passed
and thus entitled to receive her salary and other
emoluments for actual service rendered. Administrative Order No. 2 (the new Implementing
Consequently, the Commission on Audit erred in It appears that after personally attending the initial NAC Rules and Regulations of Proclamation No. 347),
disallowing in audit such salary and other emoluments, meetings, the three ex officio members turned over which was approved by then President Joseph Estrada
including that of her co-terminous staff. said responsibility to their representatives who were on October 19, 1999. Section 1, Rule II thereof
paid honoraria beginning December 12, 1994. provides:
ACCORDINGLY, we REVERSE the decisions of the However, on October 15, 1997, NAC resident auditor
Commission on Audit insofar as they disallow the Eulalia disallowed on audit the payment of honoraria to Section 1, Composition - The NAC shall be
salaries and emoluments of Commissioner Thelma P. these representatives amounting to ₱255,750 for the composed of seven (7) members:
Gaminde and her coterminous staff during her tenure period December 12, 1994 to June 27, 1997, pursuant
as de facto officer from February 02, 1999, until to COA Memorandum No. 97-038. On September 1,
1998, the NGAO upheld the auditor's order and notices a) A Chairperson who shall
February 02, 2000. be appointed by the President;
of disallowance were subsequently issued to the
following:7
This decision shall be effective immediately. b) Three (3) Commissioners who
shall be appointed by the
No costs. REPRESENTATIVES AMOUNT President;
1. Cesar Averilla
SO ORDERED. Department of National c) Three (3) Ex-officio Members
Defense ₱ 2,500.00
1. Secretary of Justice

G. R. No. 156982 September 8, 2004

2. Secretary of National
NATIONAL AMNESTY COMMISSION, petitioner,
Defense
vs.
COMMISSION ON AUDIT, JUANITO G. ESPINO,
 3. Secretary of the Interior
and Local Government
The ex officio members
may designate their representatives to the
Commission. Said Representatives shall
be entitled to per diems, allowances,
bonuses and other benefits as may be
authorized by law.(Emphasis supplied)
Petitioner invoked Administrative Order No. 2 in
assailing before the COA the rulings of the resident
auditor and the NGAO disallowing payment
of honoraria to the ex officio members'
representatives, to no avail.
Hence, on March 14, 2003, the NAC filed the present
petition, contending that the COA committed grave
abuse of discretion in: (1) implementing COA
Memorandum No. 97-038 without the required notice
and publication under Article 2 of the Civil Code; (2)
invoking paragraph 2, Section 7, Article IX-B of the
1987 Constitution to sustain the disallowance
of honoraria under said Memorandum; (3) applying the
Memorandum to the NAC ex officio members'
representatives who were all appointive officials with
ranks below that of an Assistant Secretary; (4)
interpreting laws and rules outside of its mandate and
declaring Section 1, Rule II of Administrative Order No.
2 null and void, and (5) disallowing the payment
of honoraria on the ground of lack of authority of
representatives to attend the NAC meetings in behalf
of the ex officio members.8
We hold that the position of petitioner NAC is against
the law and jurisprudence. The COA is correct that
there is no legal basis to grant per diem, honoraria or
any allowance whatsoever to the NAC ex
officio members' official representatives.
The Constitution mandates the Commission on Audit
to ensure that the funds and properties of the
government are validly, efficiently and conscientiously
used. Thus, Article IX-D of the Constitution ordains the
COA to exercise exclusive and broad auditing powers
over all government entities or trustees, without any
exception:
Section 2. (1) The Commission on Audit shall
have the power, authority and duty
to examine, audit, and settle all accounts
pertaining to the revenue and receipts of,
and expenditures or uses of funds and
property, owned or held in trust by, or
pertaining to, the Government, or any of its
subdivisions, agencies, or instrumentalities,
including government-owned and controlled
corporations with original charters, and on a
post-audit basis: (a) constitutional bodies,
commissions and offices that have been
granted fiscal autonomy under this
Constitution; (b) autonomous state colleges
and universities; (c) other government-owned
or controlled corporations and their
subsidiaries; and (d) such non-governmental
entities receiving subsidy or equity, directly or
indirectly, from or through the government,
which are required by law of the granting
institution to submit to such audit as a
condition of subsidy or equity. However,
where the internal control system of the
audited agencies is inadequate, the
Commission may adopt such measures,
including temporary or special pre-audit, as
are necessary and appropriate to correct the
deficiencies. It shall keep the general
accounts of the Government and, for such
period as may be provided by law, preserve
the vouchers and other supporting papers
pertaining thereto.
(2) The Commission shall have exclusive
authority, subject to the limitations in this
Article, to define the scope of its audit and
examination, establish the techniques and
methods required therefor, and
promulgate accounting and auditing rules
and regulations, including those for the
prevention and disallowance of irregular,
unnecessary, inexpensive, extravagant, or
unconscionable expenditures, or uses of
government funds and properties.
Section 3. No law shall be
passed exempting any entity of the
Government or its subsidiary in any guise
whatever, or any investment of public
funds, from the jurisdiction of the
Commission on Audit. (Emphasis
supplied).
It is in accordance with this constitutional mandate that
the COA issued Memorandum No. 97-038 on
September 19, 1997:
COMMISSION ON AUDIT MEMORANDUM
NO. 97-038
SUBJECT: Implementation of Senate
Committee Report No. 509, Committee on
Accountability of Public Officers and
Investigations and Committee on Civil Service
and Government Reorganization.
The Commission received a copy of Senate
Committee Report No. 509 urging the
Commission on Audit to immediately cause
the disallowance of any payment of any
form of additional compensation or
remuneration to cabinet secretaries, their
deputies and assistants, or their
representatives, in violation of the rule on
multiple positions, and to effect the refund
of any and all such additional
compensation given to and received by
the officials concerned, or their
representatives, from the time of the
finality of the Supreme Court ruling in Civil
Liberties Union v. Executive Secretary to
the present. In the Civil Liberties Union case,
the Supreme Court ruled that Cabinet
Secretaries, their deputies and assistants
may not hold any other office or
employment. It declared Executive Order
284 unconstitutional insofar as it allows
Cabinet members, their deputies and
assistants to hold other offices in addition
to their primary office and to receive
compensation therefor. The said
decisionbecame final and executory on
August 19, 1991.
In view thereof, all unit heads/auditors/team
leaders of the national government agencies
and government owned or controlled
corporations which have effected payment of
subject allowances, are directed to implement
the recommendation contained in the subject
Senate Committee Report by undertaking the
following audit action:
 1. On accounts that have not been
audited and settled under
certificate of settlements and
balances on record from August
19, 1991 to present - to
immediately issue the Notices of
disallowance and corresponding
certificate of settlements and
balances.
2. On accounts that have been
audited and settled under certificate
of settlements and balances on
record - to review and re-open said
accounts, issue the corresponding
notices of disallowance, and certify a
new balance thereon. It is
understood that the re-opening of
accounts shall be limited to those
that were settled within the
prescriptive period of three (3)
years prescribed in Section 52 of
P.D. 1445.
3. On disallowances previously
made on these accounts - to submit
a report on the status of the
disallowances indicating whether
those have been refunded/settled or
have become final and executory
and the latest action taken by the
Auditor thereon.
All auditors concerned shall ensure that all
documents evidencing the disallowed
payments are kept intact on file in their
respective offices.
Any problem/issue arising from the
implementation of this Memorandum shall be
brought promptly to the attention of the
Committee created under COA Officer Order
No. 97-698 thru the Director concerned, for
immediate resolution.
An initial report on the implementation of this
Memorandum shall be submitted to the
Directors concerned not later than October
31, 1997. Thereafter, a quarterly progress
report on the status of disallowances made
shall be submitted, until all the disallowances
shall have been enforced.
The Committee created under COA Office
Order No. 97-698, dated September 10,
1997, shall supervise the implementation of
this Memorandum which shall take effect
immediately and shall submit a consolidated
report thereon in response to the
recommendation of the Senate Committee on
Accountability of Public Officers and
Investigation and Committee on Civil Service
and Government Reorganization.9 (Emphasis
supplied)
Contrary to petitioner's claim, COA Memorandum No.
97-038 does not need, for validity and effectivity, the
publication required by Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days
following the completion of their publication in
the Official Gazette, unless it is otherwise
provided. This Code shall take effect one year
after such publication.
We clarified this publication requirement
in Tañada vs. Tuvera:10
[A]ll statutes, including those of local
application and private laws, shall be
published as a condition for their
effectivity, which shall begin fifteen
days after publication unless a
different effectivity date is fixed by
the legislature.
Covered by this rule are presidential
decrees and executive orders
promulgated by the President in the
exercise of legislative powers whenever
the same are validly delegated by the
legislature or, at present, directly
conferred by the Constitution.
Administrative rules and regulations must
also be published if their purpose is to
enforce or implement existing law
pursuant to a valid delegation.
Interpretative regulations and those
merely internal in nature, that is,
regulating only the personnel of the
administrative agency and not the public,
need not be published. Neither is
publication required of the so-called
letters of instructions issued by
administrative superiors concerning the
rules or guidelines to be followed by their
subordinates in the performance of their
duties. (Emphasis supplied.)
COA Memorandum No. 97-038 is merely an internal
and interpretative regulation or letter of instruction
which does not need publication to be effective and
valid. It is not an implementing rule or regulation of a
statute but a directive issued by the COA to its auditors
to enforce the self-executing prohibition imposed by
Section 13, Article VII of the Constitution on the
President and his official family, their deputies and
assistants, or their representatives from holding
multiple offices and receiving double compensation.
Six years prior to the issuance of COA Memorandum
No. 97-038, the Court had the occasion to categorically
explain this constitutional prohibition in Civil Liberties
Union vs. The Executive Secretary:11
Petitioners maintain that this Executive Order which, in
effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold
other government offices or positions in addition to
their primary positions, albeit subject to the limitation
therein imposed, runs counter to Section 13, Article VII
of the 1987 Constitution, which provides as follows:
"Sec. 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise
provided in this Constitution, hold any other
office or employment during their tenure.
They shall not, during said tenure, directly or
indirectly practice any other profession,
participate in any business, or be financially
interested in any contract with, or in any
franchise, or special privilege granted by the
Government or any subdivision, agency, or
instrumentality thereof, including
government-owned or controlled corporations
or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their
office."
xxx xxx xxx
[D]oes the prohibition in Section 13,
Article VII of the 1987 Constitution insofar
as Cabinet members, their deputies or
assistants are concerned admit of the
broad exceptions made for appointive
officials in general under Section 7, par.
(2), Article IX-B which, for easy reference
is quoted anew, thus:"Unless otherwise
allowed by law or by the primary functions of
his position, no appointive official shall hold
any other office or employment in the
Government or any subdivision, agency or
instrumentality thereof, including
government-owned or controlled corporation
or their subsidiaries."
We rule in the negative.
xxx xxx xxx
But what is indeed significant is the fact
that although Section 7, Article IX-B
already contains a blanket prohibition
against the holding of multiple offices or
employment in the government
subsuming both elective and appointive
public officials, the Constitutional
Commission should see it fit to formulate
another provision, Sec. 13, Article VII,
specifically prohibiting the President,
Vice-President, members of the Cabinet,
their deputies and assistants from holding
any other office or employment during
their tenure, unless otherwise provided in
the Constitution itself.
xxx xxx xxx
Thus, while all other appointive officials in
the civil service are allowed to hold other
office or employment in the government
during their tenure when such is allowed
by law or by the primary functions of their
positions, members of the Cabinet, their
deputies and assistants may do so only
when expressly authorized by the
Constitution itself. In other words, Section
7, Article IX-B is meant to lay down the
general rule applicable to all elective and
appointive public officials and employees,
while Section 13, Article VII is meant to be
the exception applicable only to the
President, the Vice-President, Members of
the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase
"unless otherwise provided in this
Constitution" in Section 13, Article VII
cannot possibly refer to the broad
exceptions provided under Section 7,
Article IX-B of the 1987 Constitution. . . .
xxx xxx xxx
The prohibition against holding dual or
multiple offices or employment under
Section 13, Article VII of the Constitution
must not, however, be construed as
applying to posts occupied by the
Executive officials specified therein
without additional compensation in an ex-
officio capacity as provided by law and
as required by the primary functions of
said officials' office. The reason is that
these posts do no comprise "any other
office" within the contemplation of the
constitutional prohibition but are properly
an imposition of additional duties and
functions on said officials. …
xxx xxx xxx
[T]he prohibition under Section 13, Article
VII is not to be interpreted as covering
positions held without additional
compensation in ex-officio capacities as
provided by law and as required by the
primary functions of the concerned
official's office. The term ex-officio
means "from office; by virtue of office." It
refers to an "authority derived from official
character merely, not expressly conferred
upon the individual character, but rather
annexed to the official position." Ex-officio
likewise denotes an "act done in an official
character, or as a consequence of office, and
without any other appointment or authority
than that conferred by the office." An ex-officio
member of a board is one who is a member
by virtue of his title to a certain office, and
without further warrant or appointment. To
illustrate, by express provision of law, the
Secretary of Transportation and
Communications is the ex-officio Chairman of
the Board of the Philippine Ports Authority,
and the Light Rail Transit Authority.
xxx xxx xxx
The ex-officio position being actually and in
legal contemplation part of the principal office,
it follows that the official concerned has no
right to receive additional compensation
for his services in the said position. The
reason is that these services are already
paid for and covered by the compensation
attached to his principal office. x x x
xxx xxx xxx
…[E]x-officio posts held by the executive
official concerned without additional
compensation as provided by law and as
required by the primary functions of his
office do not fall under the definition of
"any other office" within the
contemplation of the constitutional
prohibition... (Emphasis supplied).
Judicial decisions applying or interpreting the laws or
the Constitution, such as the Civil Liberties
Union doctrine, form part of our legal
system.12 Supreme Court decisions assume the same
authority as valid statutes.13 The Court's interpretation
of the law is part of that law as of the date of enactment
because its interpretation merely establishes the
contemporary legislative intent that the construed law
purports to carry into effect.14
COA Memorandum No. 97-038 does not, in any
manner or on its own, rule against or affect the right of
any individual, except those provided for under the
Constitution. Hence, publication of said Memorandum
is not required for it to be valid, effective and
enforceable.
In Civil Liberties Union, we elucidated on the two
constitutional prohibitions against holding multiple
positions in the government and receiving double
compensation: (1) the blanket prohibition of paragraph
2, Section 7, Article IX-B on all government employees
against holding multiple government offices, unless
otherwise allowed by law or the primary functions of
their positions, and (2) the stricter prohibition under
Section 13, Article VII on the President and his official
family from holding any other office, profession,
business or financial interest, whether government or
private, unless allowed by the Constitution.
The NAC ex officio members' representatives who
were all appointive officials with ranks below Assistant
Secretary are covered by the two constitutional
prohibitions.
First, the NAC ex officio members' representatives are
not exempt from the general prohibition because there
is no law or administrative order creating a new office
or position and authorizing additional compensation
therefor.
Sections 54 and 56 of the Administrative Code of 1987
reiterate the constitutional prohibition against multiple
positions in the government and receiving additional or
double compensation:
SEC. 54. Limitation on Appointment. - (1) No
elective official shall be eligible for
appointment or designation in any capacity to
any public office or position during his tenure.
xxx xxx xxx
(3) Unless otherwise allowed by law or by the
primary functions of his position, no
appointive official shall hold any other office
or employment in the Government or any
subdivision, agency or instrumentality
thereof, including government-owned or
controlled corporations or their subsidiaries.
xxx xxx xxx
SEC. 56. Additional or Double
Compensation. -- No elective or appointive
public officer or employee shall receive
additional or double compensation unless
specifically authorized by law nor accept
without the consent of the President, any
present, emolument, office, or title of any kind
form any foreign state.
Pensions and gratuities shall not be considered as
additional, double or indirect compensation.
RA 6758, the Salary Standardization Law, also bars
the receipt of such additional emolument.
The representatives in fact assumed their
responsibilities not by virtue of a new appointment but
by mere designation from the ex officio members who
were themselves also designated as such.
There is a considerable difference between an
appointment and designation. An appointment is the
selection by the proper authority of an individual who is
to exercise the powers and functions of a given office;
a designation merely connotes an imposition of
additional duties, usually by law, upon a person already
in the public service by virtue of an earlier
appointment.15
Designation does not entail payment of additional
benefits or grant upon the person so designated the
right to claim the salary attached to the position.
Without an appointment, a designation does not entitle
the officer to receive the salary of the position. The
legal basis of an employee's right to claim the salary
attached thereto is a duly issued and approved
appointment to the position,16 and not a mere
designation.
Second, the ex officio members' representatives are
also covered by the strict constitutional prohibition
imposed on the President and his official family.
Again, in Civil Liberties Union, we held that cabinet
secretaries, including their deputies and assistants,
who hold positions in ex officio capacities, are
proscribed from receiving additional compensation
because their services are already paid for and
covered by the compensation attached to their
principal offices. Thus, in the attendance of the NAC
meetings, the ex officio members were not entitled to,
and were in fact prohibited from, collecting extra
compensation, whether it was called per diem,
honorarium, allowance or some other euphemism.
Such additional compensation is prohibited by the
Constitution.
Furthermore, in de la Cruz vs. COA17 and Bitonio vs.
COA,18 we upheld COA's disallowance of the payment
of honoraria and per diems to the officers concerned
who sat as ex officio members or alternates. The
agent, alternate or representative cannot have a better
right than his principal, the ex officio member. The
laws, rules, prohibitions or restrictions that cover the ex
officio member apply with equal force to his
representative. In short, since the ex officio member is
prohibited from receiving additional compensation for a
position held in an ex officio capacity, so is his
representative likewise restricted.
The Court also finds that the re-opening of the NAC
accounts within three years after its settlement is within
COA's jurisdiction under Section 52 of Presidential
Decree No. 1445, promulgated on June 11, 1978:
SECTION 52. Opening and revision of settled
accounts. (1) At any time before the expiration
of three years after the settlement of any
account by an auditor, the Commission may
motu propio review and revise the account or
settlement and certify a new balance.
More importantly, the Government is never estopped
by the mistake or error on the part of its
agents.19 Erroneous application and enforcement of
the law by public officers do not preclude subsequent
corrective application of the statute.
In declaring Section 1, Rule II of Administrative Order
No. 2 s. 1999 null and void, the COA ruled that:
Petitioner further contends that with the new
IRR issued by the NAC authorizing the ex-
officio members to designate representatives
to attend commission meetings and entitling
them to receive per diems, honoraria and
other allowances, there is now no legal
impediment since it was approved by the
President. This Commission begs to
 disagree. Said provision in the new IRR is null
and void for having been promulgated in
excess of its rule-making authority.
Proclamation No. 347, the presidential
issuance creating the NAC, makes no
mention that representatives of ex-officio
members can take the place of said ex-officio
members during its meetings and can receive
per diems and allowances. This being the
case, the NAC, in the exercise of its quasi-
legislative powers, cannot add, expand or
enlarge the provisions of the issuance it seeks
to implement without committing an ultra vires
act.20
We find that, on its face, Section 1, Rule II of
Administrative Order No. 2 is valid, as it merely
provides that:
The ex officio members may designate their
representatives to the Commission. Said
Representatives shall be entitled to per
diems, allowances, bonuses and other
benefits as may be authorized by
law. (Emphasis supplied).
The problem lies not in the administrative order but how
the NAC and the COA interpreted it.
First, the administrative order itself acknowledges that
payment of allowances to the representatives must be
authorized by the law, that is, the Constitution, statutes
and judicial decisions. However, as already discussed,
the payment of such allowances is not allowed,
prohibited even.
Second, the administrative order merely allows the ex
officio members to designate their representatives to
NAC meetings but not to decide for them while
attending such meetings. Section 4 of the
administrative order categorically states:
Decisions of the NAC shall be arrived at by a
majority vote in a meeting where there is a
quorum consisting of at least four members.
Thus, although the administrative order does
not preclude the representatives from
attending the NAC meetings, they may do so
only as guests or witnesses to the
proceedings. They cannot substitute for
the ex officio members for purposes of
determining quorum, participating in
deliberations and making decisions.
Lastly, we disagree with NAC's position that the
representatives are de facto officers and as such are
entitled to allowances, pursuant to our pronouncement
in Civil Liberties Union:
"where there is no de jure officer, a de
facto officer, who in good faith has had
possession of the office and has discharged
the duties pertaining thereto, is legally entitled
to the emoluments of the office, and may in
appropriate action recover the salary, fees
and other compensation attached to the
office."
A de facto officer "derives his appointment
from one having colorable authority to
appoint, if the office is an appointive office,
and whose appointment is valid on its face.
(He is) one who is in possession of an office
and is discharging its duties under color of
authority, by which is meant authority derived
from an appointment, however irregular or
informal, so that the incumbent be not a mere
volunteer."21
The representatives cannot be considered de
facto officers because they were not appointed but
were merely designated to act as such. Furthermore,
they are not entitled to something their own principals
are prohibited from receiving. Neither can they claim
good faith, given the express prohibition of the
Constitution and the finality of our decision in Civil
Liberties Union prior to their receipt of such
allowances.
WHEREFORE the petition is hereby DISMISSED for
lack of merit.
SO ORDERED.
G.R. No. 215061
AMANDO M. TETANGCO, JR., PETER B. FAVILA,
JUANITA D. AMATONG, NELLY A. FAVIS-
VILLAFUERTE, ALFREDO C. ANTONIO, IGNACIO
R. BUNYE, MARIE MICHELLE N. ONG, BELLA M.
PRUDENCIO, ESMEGARDO S. REYES, MA.
CORAZON G. CATARROJA, Petitioners
vs.
COMMISSION ON AUDIT, Respondent
DECISION
TIJAM, J.:
In this Petition for Certiorari under Rule 64 in relation to
Rule 65, 1 petitioners assail the Commission on Audit's
(COA) Resolution 2 dated August 12, 2014, denying
the petitioners' Motion for Reconsideration 3 and
Supplemental 4 Motion for Reconsideration, affirming
COA's Decision No. 2013-227 dated December 23,
20135 and sustaining the Notices of Disallowance (ND)
Nos. 10-004 GF (2007-2008) 6 and 10-004 GF (2007-
2009) 7 both dated August 13, 2010.
The Facts
This case stemmed from the COA's act of disallowing
theExtraordinary and Miscellaneous Expenses (EMEs)
of the ex officio members of the Monetary Board
(MBM), allegedly in violation of their respective
constitutional rights.
Petitioner Amanda M. Tetangco, Jr., (Tetangco Jr.) is
the Governor of the Banko Sentral ng Pilipinas (BSP).
Petitioners Peter B. Favila (Favila), Juanita D.
Amatong (Amatong), Nelly A. Favis-Villafuerte (Favis-
Villafuerte ), Alfredo C. Antonio (Antonio) and Ignacio
R. Bunye (Bunye). Were the MBM at the time that the
allowance· for EMEs was approved. Petitioners Marie
Michelle N. Ong (Ong), Bella M. Prudencio
(Prudencio), Esmegardo S. Reyes (Reyes) and Ma.
Corazon G. Catarroja (Catarroja) were employees of
the BSP who participated in the processing and
approval of the EME.
COA's March 23, 2010 Decision No. 2010-048, 8 on
the Performance Audit Report on the allocation and
utilization of EME of the MBM, stated, among others,
that " x x x the ex-officio member of the Monetary
Board x x x shall not be entitled to additional EMEs,
other than that appropriated for him or her under the
GAA as a cabinet member x x x."9
Pursuant to this Decision, COA conducted an actual
audit of the specific accounts that allegedly exceeded
the prescribed limitations and/or were not properly
documented/justified.
As a consequence, the EMEs of MBM Neri and Favila
were disallowed and became the subject of ND dated
August 13, 2010. Eventually, the MBM and BSP
personnel, which include the petitioners, were held
personally liable under ND Nos. 10-004 GF (2007-
2008) and 10- 004 GF (2007-2009).
Petitioners filed a Motion for Reconsideration and/or
Appeal with the COA Director on May 26, 2011, but the
same was denied. They filed a Petition for
Review 10 with the COA, but the same was likewise
denied in the COA's December 23, 2013 Decision No.
2013-227. 11
With their Motion for Reconsideration and
Supplemental Motion for Reconsideration having been
denied in the COA's Resolution dated August 12, 2014,
they filed the instant petition.
The petitioners alleged that the COA acted without or
in excess of its jurisdiction, and/or with grave abuse of
discretion amounting to lack or excess of jurisdiction:
(A) in disallowing the EMEs of the ex officio MB Ms: (1)
because the March 23, 2010 COA Decision No. 2010-
048, should not be applied since the disallowed EMEs
were incurred by the ex officio MBMs in the years 2007,
2008 and 2009, which years are prior to the date of
finality (May 5, 2010) of the ·said decision; (2) since as
MBMs, they incur extraordinary and miscellaneous
expenses in the discharge of their functions, separate
and distinct from the expenses they incur in relation to
their · principal office; (3) since it cannot be said that
the MB Ms failed to exercise the highest degree of
responsibility in approving the grant of EMEs; (4) since
it violates the equal protection clause under Article III,
Section 1 of the 1987 Constitution; and (B) in including
Petitioner Favila as one of the persons solidarily liable
under ND No. 10-004 GF (2007-2008), despite the fact
that he had no participation in the approval of the EMEs
covered by the ND.
For its part, the COA countered that: Petitioners failed
to show grave abuse of discretion on the part of COA
in rendering its assailed Decision and subsequent
Resolution; COA did not gravely abuse its discretion in
disallowing the EMEs of the ex officio MBM, because
the allowances were based on the applicable laws,
jurisprudence, rules and regulations; the defense of
good faith in approving the grant of EMEs to the ex
officio MBM with reliance on BSP's independence and
autonomy is unavailing; there was no violation of the
equal protection clause in the subject disallowances;
and petitioner Favila is solidarily liable with other
officials of the BSP under ND No. 10-004 GF (2007-
2009) because he was a member of the Monetary
Board and also the recipient of the irregular EMEs.
The Issue
Simply, the core issue boils down to whether or not the
COA gravely abused its discretion when it disallowed
the EMEs of the ex officio MBM.
The nature of EME, however, was not the foremost
reason for the disallowance, but the limitations
imposed by law in availing such allowance. x x x the ex
officio members of the Monetary Board are entitled to
EMEs to the extent of that appropriated in the General
Appropriations Act (GAA). Since the ex officio
members already received their EMEs from their
respective Departments (as appropriated in the
GAA), the additional EMEs from BSP are no longer
necessary. It must be stressed that the ex officio
position is actually and, in legal contemplation, part of
the principal office; hence, the ex officio member is no
longer entitled to receive any form of compensation,
allowance or other euphemism from the extended
agency. x x x we quote the pertinent discussion of the
subject COA Decision: [Emphasis .Supplied.]
x x x In fact, the ex officio membership of the cabinet
member in the Monetary Board does not comprise
'another office' but rather annexed to or is required by
the primary functions of his or her official position as
cabinet member. Of equal significance, too, is that
the ex officio member of the Monetary Board already
receives separate appropriations under the GAA for
EMEs, he or she being a member of the cabinet. Being
such, it is highly irregular that the said
ex officio member of the Monetary Board, who
performs only additional duties by virtue of his or her
primary functions, will be provided with additional
EMEs, which in this case, appear much higher than his
or her appropriations for the same expenses under the
GAA as a cabinet member. x x x 12
xxxx
x x x the irregularity of giving additional compensation
or allowances to ex officio members was no longer a
hovel issue during the time that the subject allowances
were authorized by BSP. As early as 1991, the issue
was already ruled on by the Supreme Court in the case
of Civil Liberties Union vs. Executive
Secretary, 13 followed by several jurisprudence in the
cases of Dela Cruz, et. al. vs.
COA, 14and NationalAmnesty Commission vs.
COA, 15 to name a few. 16 (Emphasis supplied)
Absent any showing that COA capriciously, arbitrarily
or whimsically exercised its discretion that would be
tantamount to evasion of a positive duty or a virtual
refusal to perform the duty or to act at all in
contemplation of law resulting to the prejudice of the
rights of the claimants, the Court finds no reason to set
aside its decision.
In the absence of grave abuse of discretion; the factual
findings of the COA, which are undoubtedly supported
by the evidence on record, must be accorded great
respect and finality. COA, as the duly authorized
agency to adjudicate money claims against
government agencies and instrumentalities has
acquired special knowledge and expertise in handling
matters falling under its specialized jurisdiction. 17
Verily, the Court has sustained the decisions of
administrative authorities like the COA as a matter of
general policy, not only on the basis of the doctrine of
separation of powers but also upon the recognition that
such administrative authorities held the expertise as to
the laws they are entrusted to enforce. 18 The Court
has accorded not only respect but also finality to their
findings especially when their decisions are not tainted
with unfairness or arbitrariness that would amount to
grave abuse of discretion. 19 Only when the COA acted
without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction,
may this Court entertain and grant a petition
for certiorari brought to assail its actions. 20 However,
we find no grave abuse of discretion on the part of the
COA in issuing the assailed decision.
Anent petitioners' defense of good faith in approving
the grant of EMEs to the ex officio. members of the
Monetary Board, this Court opines that said defense is
unavailing.
As correctly pointed out by the COA:
This Commission finds that the Petitioners MBM, in
approving the irregular allowance, were remiss in their
duty to protect the interest of the Bank. x x x they ought
to know that the ex officio members of theMonetary
Board were already receiving the same allowance from
their respective Departments, hence, they were no
longer entitled to the additional EMEs.
It must be emphasized that the degree of diligence
required from bank employees and officials is not
ordinary but requires the highest standards of integrity
and performance. Section 2 of R.A. No. 8791, also
known as the General Banking Law of 2000, provides
for the degree of diligence expected from the industry,
to wit:
Section 2. Declaration of Policy. - The State
recognizes the vital role of banks providing an
environment conducive to the sustained development
of the national economy and the fiduciary nature of
banking that requires high standards of integrity and
performance. xxx
In support of the above privision of the law, the
Supreme Court, in the case of Philippine National Bank
v. Rodriguez, et.al. (G.R. No. 170325, September 26,
2008), ruled, viz:
Banks handle daily transactions involving millions of
pesos. By the very nature of their work the degree of
responsibility, care and trustworthiness expected of
their employees and officials is far greater than those
of ordinary clerks and employees. For obvious
reasons, the banks are expected to exercise the
highest degree of diligence in the selection and
supervision of their employees. x x x
xx x for failure of the Petitioners MBM to exercise the
highest degree of responsibility required by law, their
defense of good faith fails. 21 [Emphasis Supplied.]
By jurisprudence, the patent disregard of several case
laws and COA directives, as in this case. amounts to
gross negligence; hence, petitionerk ' cannot be
presumed in good faith. In TESDA vs. The
Commission on Audit) et.al.,22this Court ruled that:
In. Casal v. COA, 23 x x x we held the approving
officials liable for the refund of the incentive award due
to their patent disregard of the issuances of the
President and the directives of COA. In Casal, we ruled
that the officials' failure to observe the issuances
amounted to gross negligence, which is inconsistent
with the presumption of good faith. We applied
the Casal ruling in Velasco v. COA, 24 to wit:
x x x the blatant failure of the petitioners-approving
officers to abide with the provisions of AO 103 and AO
161 overcame the presumption of good faith. The
deliberate disregard of these issuances is equivalent to
gross negligence amounting to bad faith. Therefore,
the petitioners-approving officers are accountable for
the refund of the subject incentives which they
received. [Emphasis Supplied]
Applying by analogy the above rulings, we hold the
petitioners approving officers of the Monetary Board
are liable for the excess EMEs which they received.
As the records bear out, the petitioners who approve
the EMEs failed to observe the following: first, there is
already a law, the GAA, that limits the grant of
EMEs; second; COA Memorandum No. 97-038 dated
September 19, 1997 is a directive issued by the COA
to its auditors to enforce the self-executing prohibition
imposed by Section 13, Article VII of the
Constitution 25 on the President and his official family,
their deputies and assistants, or their representatives
from holding multiple offices and receiving double.
compensation; and third, the irregularity of giving
additional compensation or allowances to ex
officio members was already settled by
jurisprudence, 26 during the time that the subject
allowances were authorized by the BSP.
Indeed, the petitioners-approving officers' disregard of
the aforementioned case laws, COA issuances, and
the Constitution, cannot be deemed as a mere lapse
consistent with the presumption of good faith.
In line with this, we cannot subscribe to petitioner
Favila's insistence that he should not be liable in the
approving, processing and receiving of EMEs on the
basis that he did not participate in the adoption of the
resolutions authorizing the payment of the EMEs.
As pointed out during the deliberation by Our learned
colleague, Hon. Justice Lucas P. Bersamin, the
doctrine on the non-liability of recipients of disallowed
benefits based on good faith did not extend to
petitioner Favila for the following reasons: first, there
was precisely a law (the relevant GAAs) that expressly
limited the amounts of the EMEs to be received by the
ex officio members; and second, in so far as ND No.
10-004GF (2007- 2008) 27 is concerned, his liability
arose from his receipt of the subject allowances in
2008, when he was an ex officio member of the Board.
Hence, · good faith did not favor him not only because
he had failed to exercise the highest degree of
responsibility, but also because as a cabinet member
he was aware of the extent of the benefits he was
entitled to.
Verily, petitioners Tetangco, Jr., Favila, Amatong,
Pavis-Villafuerte, Antonio, and Bunye, who were
members of the Monetary Board were expected to
keep abreast of the laws that may affect the
performance of their functions. The law, jurisprudence
and COA issuances subject of this case are of such
clearness that the concerned officials could not have
mistaken their meaning. It was incumbent upon them
to instruct Petitioners On &, Prudencio, Reyes and
Catarroja who participated in the processing of the
EMEs, to comply with these laws. Unfortunately, they
did not. Thus, they cannot find shelter in the defense of
good faith.
WHEREFORE, the Petition is DISMISSED. The
Commission oμ Audit's Resolution dated August 12,
2014, denying the petitioners' Motion for
Reconsideration 28 and Supplemental Motion for
Reconsideration, · affirming its Decision No. 2013-227
dated December 23, 2013 and sustaining the Notices
of Disallowance Nos. 10-004 GF (2007-2008) and 10-
004 GF (2007-2009) both dated August 13, 2010, are
hereby AFFIRMED in toto.
SO ORDERED.
A.M. No. 13-04-03-SC December 10, 2013
RE: NOMINATION OF ATTY. LYNDA CHAGUILE,
IBP IFUGAO PRESIDENT, AS REPLACEMENT FOR
IBP GOVERNOR FOR NORTHERN LUZON, DENIS
B. HABAWEL
x---------------x
A.M. No. 13-05-08-SC
RE: ALLEGED NULLITY OF THE ELECTION OF IBP
SOUTHERN LUZON GOVERNOR VICENTE M.
JOYAS AS IBP EXECUTIVE VICE PRESIDENT [FOR
2011-2013]
x---------------x
A.M. No. 13-06-11-SC
RE: LETTER RESQUEST OF THE NATIONAL
SECRETARY OF THE IBP RE PROPOSED OATH
TAKING BEFORE THE SUPREME COURT OF THE
ELECTED IBP REGIONAL GOVERNORS AND THE
EXECUTIVE VICE PRESIDENT FOR THE TERM
2013 TO 2015
RESOLUTION
LEONEN, J.:
This is yet another controversy involving the leadership
of the Integrated Bar of the Philippines (IBP) that could
have been resolved at the Integrated Bar of the
Philippines’ level but was instead referred to this aking
away precious resources that could have been better
applied to resolve other conflicts for the public interest.
The consolidated cases involve two Administrative
Matters. The first Administrative Matter (A.M. No. 13-
04-03-SC) arose from a Motion filed by Atty. Marlou B.
Ubano, IBP Governor for Western Visayas. Atty.
Ubano sought to invalidate or have this Court declare
as ultra vires the portion of the March 21, 2013
Resolution of the IBP Board of Governors which
approved the nomination of Atty. Lynda Chaguile as
replacement of IBP Governor for Northern Luzon,
Denis B. Habawel. The second Administrative Matter
arose from another Motion filed by Atty. Ubano who
sought to nullify the May 22, 2013 election for IBP
Executive Vice President (EVP) and restrain Atty.
Vicente M. Joyas from discharging the duties of IBP
EVP/Acting President. In a Resolution dated June 18,
2013, this Court consolidated the second
Administrative Matter with the first.
A.M. No. 13-04-03-SC
The first Administrative Matter is an incident arising
from: (1) A.M. No. 09-5-2-SC (In the Matter of the
Brewing Controversies in the Election in the· Integrated
Bar of the Philippines, Atty. Marven B. Daquilanea,
Movant-Intervenor; Presidents of IBP Chapter in
Western Visayas Region, Intervenors; IBP Capiz
Chapter, Intervenor); and (2) A.C. No. 8292 (Attys.
Marcial M Magsino, Manuel M Maramba, and Nasser
Marohomsalic v. Attys. Rogelio A. Vinluan, Abelardo C.
Estrada, Bonifacio T. Barandon, Jr., Evergisto S.
Escalon, and Raymund Jorge A. Mercado).
On March 27, 2013, Atty. Marlou B. Ubano, IBP
Governor for Western Visayas, filed a Motion (Original
Motion) in relation to A.M. No. 09-5-2-SC. Atty. Ubano
sought to invalidate or have this Court declare as ultra
vires the portion of the March 21, 2013 Resolution of
the IBP Board of Governors which approved the
nomination of Atty. Lynda Chaguile as the replacement
of IBP Governor for Northern Luzon, Denis B.
Habawel. In this Original Motion, Atty. Ubano noted
that on December 4, 2012, this Court approved an
amendment to Article I, Section 4 of the IBP By-Laws
which considers as ipso facto resigned from his or her
post any official of the Integrated Bar of the Philippines
who files a Certificate of Candidacy for any elective
public office. Under the amended By-Laws, the
resignation takes effect on the starting date of the
official campaign period.1 Atty. Ubano alleged that the
IBP Governor for Northern Luzon, Denis B. Habawel,
filed a Certificate of Candidacy to run for the position of
Provincial Governor of the Province of Ifugao on or
before October 5, 2012, and that on or before
December 21, 2012, IBP President, Roan Libarios,
filed a Certificate of Substitution to run as a substitute
congressional candidate for the First District of Agusan
del Norte.2
Atty. Ubano further alleged that "[i]n light of the
impending ipso facto resignation of Pres. Libarios on
30 March 2013,"3 the IBP Board of Governors agreed
to constitute a five (5)-member Executive Committee
(Ex Com) to "prevent hiatus in the leadership of the
IBP."4 The Executive Committee was "tasked to
temporarily administer the affairs of the IBP without
prejudice to the outcome of the Honorable Court’s
resolution of the pending incident."5 Atty. Ubano also
alleged that Atty. Habawel nominated Atty. Lynda
Chaguile, IBP Ifugao Chapter President, as his
successor to the position of IBP Governor for Northern
Luzon.6 Atty. Ubano claimed that Atty. Libarios began
"dictating the tenor of the IBP [Board of Governors]
Resolution about the creation of Ex Com"7 and, without
prior deliberation and voting, declared that the Board
of Governors approved the succession of Atty.
Chaguile as IBP Governor for Northern Luzon. Atty.
Ubano, together with two (2) other IBP Governors,
allegedly objected. However, when the matter was put
to a vote, the other governors, Atty. Habawel included,
approved Atty. Chaguile’s replacement of Atty.
Habawel as IBP Governor for Northern Luzon.8
In this Original Motion, Atty. Ubano challenged the IBP
Board of Governor’s approval of Atty. Chaguile’s
succession as IBP Governor for Northern Luzon on two
grounds: First, there was, as yet, no vacancy. Atty.
Habawel was himself present at the meeting where his
replacement was named. There was, therefore, no
need to name a replacement.9 Second, the right to
elect the successor of a resigned IBP Governor is
vested, not in the IBP Board of Governors, but in the
delegates of the concerned region; thus, the IBP Board
of Governors’ approval of the nominee to succeed Atty.
Habawel is ultra vires.10In support of this second
ground, Atty. Ubano cited the third paragraph of
Section 44 of the IBP By-Laws: Sec. 44. Removal of
members. x x x x x x[x] In case of any vacancy in the
office of Governor for whatever cause, the delegates
from the region shall by majority vote, elect a successor
from among the members of the Chapter to which the
resigned governor is a member to serve as governor
for the unexpired portion of the term.11 In a Resolution
dated April 2, 2013, this Court resolved to treat this
Original Motion as an Administrative Matter separate
from A.M. No. 09-5-2-SC and A.C. No. 8292. It was re-
docketed as A.M. No. 13-04-03-SC. This Court
required the IBP Board of Governors to file its
Comment. In its Comment, the IBP Board of Governors
assailed the first ground raised by Atty. Ubano by
saying that it was not necessary for a position to be
absolutely vacant before a successor may be
appointed or elected.12 As for the second ground, the
IBP Board of Governors argued that it has been the
"tradition"13 of the Integrated Bar of the Philippines that
"where the unexpired term is only for a very short
period of time, it is usually the Board of Governors
which appoint [sic]a replacement or an officer in charge
to serve the unexpired term."14 The IBP Board of
Governors cited seven (7) precedents attesting to this
"tradition":
1. On January 24, 1979, the IBP Board of
Governors "unanimously resolved to
designate Jose F. Lim, Vice President of the
IBP Samar Chapter, [as]acting Governor
and ex-oficio Vice President for Eastern
Visayas in view of the absence of Gov. Juan
G. Figueroa."15
2.On June 1, 1984, the IBP Board of
Governors approved the replacements of two
(2) governors who resigned to run in the
Batasang Pambansa elections:
a. The President of the IBP Baguio-
Benguet Chapter, Reynaldo A.
Cortes, was elected by the IBP
Board of Governors to replace Gov.
Honorato Aquino who himself
nominated Cortes;
b."The President of the IBP
Southern Leyte Chapter, Porfirio P.
Siaynco, was elected by the Board
to replace Gov. Cirilo Montejo."16
3. On January 27, 1989, the IBP Board of
Governors "elected Nancy Sison Roxas,
Treasurer of the House of Delegates, as
Governor for Central Luzon" in lieu of Cesar
L. Paras, who passed away.17
4. On October 7, 1991, Governor for Eastern
Mindanao, Teodoro Palma Gil, who was
previously appointed as a Regional Trial
Court (RTC) judge, recommended that
Teodoro Nano, Jr., President of the IBP
Davao Oriental Chapter, be his
replacement.18 On November 8, 1991, Nano
was eventually elected by the IBP Board of
Governors as Governor for Eastern
Mindanao.19
5. On September 26, 1998, the IBP "Board of
Governors confirmed the designation of
Teofilo S. Pilando, Jr. as Governor for
Northern Luzon, to serve the unexpired
portion of the term of Gov. Roy S. Pilando,
who ran for public office."20
6. On September 12, 2002, the IBP Board of
Governors "resolved to appoint acting
Governor Rogelio Velarde as regular
Governor of Southern Luzon Region after
learning of the death of the regular Governor,
Josefina S. Angara."21
7. On August 17, 2006, the IBP Board of
Governors "appointed Abelardo C. Estrada as
OIC for IBP Northern Luzon [in lieu of]
Silvestre H. Bello who was facing a
disqualification case as Governor of IBP
Northern Luzon."22
In his Reply, Atty. Ubano questioned the IBP Board of
Governors’ claim that it is not necessary for a position
to be absolutely vacant before a successor may be
appointed or elected. Citing the third paragraph of
Section 44of the IBP By-Laws’ use of the word
"vacancy" (i.e., "any vacancy in the office of Governor")
and "resignation" (i.e., "resigned governor"), Atty.
Ubano claimed that the text of the By-Laws is
"abundantly clear and unequivocal that there must be
first a "vacancy" or a prior resignation before the
delegates of the Region can lawfully elect a successor
x x x."23
Atty. Ubano likewise challenged the precedents cited
by the IBP Board of Governors and claimed that no
such tradition of appointing the successor of a resigned
governor existed.24 He pointed out that prior to its
amendment in March 2, 1993, the IBP By-Laws had
allowed the IBP Board of Governors to elect, and not
appoint, "a successor ofa resigned
Governor."25 However, the amended By-Laws now
require that a successor be elected by the delegates of
the concerned region.26 Even if it were true that the IBP
Board of Governors had a tradition of appointing the
successor of a resigned governor, the tradition cannot
be validated in view of the first paragraph of Article 7 of
the Civil Code which reads:
Article 7. Laws are repealed only by subsequent ones,
and their violation or non-observance shall not be
excused by disuse, or custom or practice to the
contrary.27
Meanwhile, on April 23, 2013, Atty. Ubano filed another
Motion (Urgent Motion to Defer/Restrain Performance
of Duties as Successor Governor of IBP Northern
Luzon Region) seeking to prevent Atty. Chaguile from
exercising the functions of IBP Governor for Northern
Luzon.
This Court also received on May 16, 2013 an undated
Resolution purportedly signed by delegates of the IBP
Northern Luzon Region. The signatories called for an
election on May 18, 2013 to name Atty. Habawel’s
successor.
On May 20, 2013, these same signatories filed before
this Court their Opposition to Atty. Chaguile’s
nomination. As with the second ground cited by Atty.
Ubano in his Original Motion, this Opposition was
anchored on the third paragraph of Section 44 of the
IBP By-Laws.
Also on May 20, 2013, Atty. Ubano filed a "Motion for
Leave to File Reply with Very Urgent Motion to Restrain
Atty. Chaguile from Voting in the EVP Election on 22
May 2013."28 Attached to the Motion was his "Reply
with Very Urgent Motion to Restrain Atty. Chaguile
from Voting in the EVP Election on 22 May
2013."29 Atty. Ubano also sent a letter to Associate
Justice Mariano C. del Castillo "pray[ing] and beg[ging]
the indulgence of the Honorable Court to immediately
restrain Atty. Lynda Chaguile from voting in the IBP
[Executive Vice President]Election to be held on 22
May2013."30
In a Resolution dated June 4, 2013, this Court required
the IBP Board of Governors to file its Comment on Atty.
Ubano’s (1) Urgent Motion to Defer/Restrain
Performance of Duties as Successor Governor of IBP
Northern Luzon Region; (2) Motion for Leave to File
Reply; and (3) Reply. It also required the IBP Board of
Governors to comment on the Opposition filed by the
signatories purporting to be the delegates of the IBP
Northern Luzon Region.
On July 8, 2013, the IBP Board of Governors filed a
Compliance (i.e., Comment in Compliance) with this
Court’s June 4, 2013 Resolution.
With respect to Atty. Ubano’s Urgent Motion to
Defer/Restrain Performance of Duties as Successor
Governor of IBP Northern Luzon Region, the IBP
Board of Governors pointed out that Atty. Chaguile’s
term expired on June 30, 2013.31
As to the Opposition filed by signatories purporting to
be the delegates of the IBP Northern Luzon Region,
the IBP Board of Governors alleged that the term of the
House of Delegates of Northern Luzon for 2011 to
2013 expired on March 31, 2013. As such, the
Opposition signed by the purported delegates
was ultra vires, and therefore, null and void.32 The IBP
Board of Governors pointed out that "[t]he issue about
the eligibility of Atty. Lynda Chaguile as replacement
Governor for Atty. Denis B. Habawel was traversed
over in the Comment x x x dated April 24, 2013."33
A.M. No. 13-05-08-SC
The second Administrative Matter assails the conduct
of the May 22, 2013 election of the IBP Executive Vice
President (EVP). In this election, Atty. Vicente M. Joy
as was elected IBP Governor for Southern Luzon.
On May 31, 2013,Atty. Ubano filed an Urgent Omnibus
Motion to (1) nullify the May 22, 2013 IBP Executive
Vice President election and (2) restrain Atty. Vicente
M. Joyas from discharging the duties of EVP/Acting
President. This Motion was docketed as A.M. No. 13-
05-08-SC. In this Court’s Resolution dated June 18,
2013, this Administrative Matter was consolidated with
A.M. No. 13-04-03-SC(the first Administrative Matter).
Atty. Ubano sought to nullify the May 22, 2013 election
on two (2) grounds:
First, he claimed that the IBP election of the EVP was
marred by inordinate haste, grave irregularities, patent
hostility, manifest bias and prejudice, as well as the
presiding officer’s absolute lack of independence.34
Second, he claimed that the election violated Section
47 of the IBP By-Laws which requires that the EVP be
elected by a vote of at least five (5) Governors. Atty.
Ubano emphasized that Atty. Chaguile’s vote in favor
of Atty. Joyas was invalid, as Atty. Chaguile’s
appointment as governor was itself ultra vires, and
therefore,void ab initio.
Section 47 of the IBP By-Laws, as amended pursuant
to this Court’s Resolution dated April 11, 2013 in A.M.
No. 09-5-2-SC and A.C. No. 8292, now reads:
Sec. 47. Election of National President Executive Vice
President. –The Integrated Bar of the Philippines shall
have a President, an Executive Vice President, and
nine (9) regional Governors. The Governors shall be
ex-officio Vice President for their respective regions.
The Board of Governors shall elect the President and
Executive Vice President from among themselves
each by a vote of at least five (5) Governors. Upon
expiration of the term of the President, the Executive
Vice-President shall automatically succeed as
President.
In the Compliance that the IBP Board of Governors
filed in A.M. No. 13-04-03-SC, it addressed Atty.
Ubano’s allegations as follows:
1. On the conduct of the election
a. The Report on the Conduct of
Election filed by the Regional Trial
Court - Pasig Executive Judge (and
Supreme Court Designated
Observer)35 indicates that Atty.
Ubano’s objection to the
appointment of the presiding officer
was thoroughly discussed and
properly put to a vote.36 Further,
there is no factual basis for claiming
that the presiding officer was not
independent. Atty. Ubano was also
noted to have been allowed the most
number of interventions and the
longest time spent for
deliberations.37
b. Atty. Ubano was properly ruled
out of order when he moved that the
elections be moved to a later date
and when he objected to the
participation of Atty. Chaguile.38
2. On the supposed invalidity of Atty.
Chaguile’s vote, the IBP Board of Governors
pointed out that, as of the time of the election,
there was no basis for invalidating the vote.39
Stripped of technical maneuverings and legal
histrionics, we are called to rule upon the validity of
Atty. Lynda Chaguile’s appointment as IBP Governor
for Northern Luzon in lieu of Atty. Denis B. Habawel.
The resolution of this matter is decisive of the validity
of her acts as IBP Governor for Northern Luzon —
including her participation in the election of the IBP
EVP.
Likewise, we are asked to review the conduct of the
election for the IBP EVP. We must determine whether
the election was attended by irregularities, biases, and
prejudice that would invalidate its results.
We note that certain issues raised in several Motions
filed as part of the first Administrative Matter have been
rendered moot and academic.
In the first Administrative Matter, Atty. Ubano sought to
(1) declare as ultra vires or as invalid the portion of the
IBP Board of Governors Omnibus Resolution dated
March 21, 2013 which approved the nomination of Atty.
Chaguile as IBP Governor for Northern Luzon in lieu of
Atty. Denis Habawel and (2) restrain Atty. Chaguile
from exercising the functions of IBP Governor for
Northern Luzon, among which was voting in the May
22, 2013 election for IBP EVP.Also in the first
Administrative Matter, several signatories purporting to
be the delegates of the IBP Northern Luzon Region
opposed Atty. Chaguile’s nomination on substantially
the same grounds as Atty. Ubano.
As pointed out by the IBP Board of Governorsin its
Compliance, "the term of Atty. Lynda Chaguile as
Governor for Northern Luzon expired on June 30,
2013."40 A new Governor for Northern Luzon, Atty.
Oliver Cachapero, was elected.41 As Atty. Chaguile is
no longer serving as IBP Governor for Northern Luzon,
the matter of ousting or restraining Atty. Chaguile from
exercising the functions of such office is no longer an
available relief.
As we have explained in Pormento v. Estrada:42
As a rule, this Court may only adjudicate actual,
ongoing controversies. The Court is not empowered to
decide moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect
the result as to the thing in issue in the case before it.
In other words, when a case is moot, it becomes non-
justiciable.
An action is considered "moot" when it no longer
presents a justiciable controversy because the issues
involved have become academic or dead or when the
matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless
the issue is likely to be raised again between the
parties. There is nothing for the court to resolve as the
determination thereof has been overtaken by
subsequent events.43
However, we recognize that the validity of Atty.
Chaguile’s appointment as Governor for Northern
Luzon affects the validity of her actions as the occupant
of thisoffice, especially her participation in the IBP
Board of Governors’ election of the IBP EVP, which is
the subject of the second Administrative Matter.
Atty. Ubano cited two grounds as bases for claiming
that the IBP Board of Governors improperly approved
Atty. Chaguile’s succession as Governor for Northern
Luzon. First, there was no vacancy at the time of Atty.
Chaguile’s designation. Atty. Habawel was then still
Governor for Northern Luzon, and there was no need
to name a replacement yet. Second, the IBP Board of
Governors acted ultra vires or beyond its competence
considering that the third paragraph of Section 44 of
the IBP By-Laws vests the right to elect the successor
of a resigned IBP governor inthe delegates of the
concerned region and not in the IBP Board of
Governors.
On the first ground, we sustain the position of the IBP
Board of Governors.
Indeed, it is not only erroneous but also absurd to insist
that a vacancy must actually and literally exist at the
precise moment that a successor to an office is
identified. Where a vacancy is anticipated with
reasonable certainty—as when a term is ending or the
effectivity of a resignation or a retirement is
forthcoming—it is but reasonable that those who are in
a position to designate a replacement act promptly.
New officials are elected before the end of an
incumbent’s term; replacements are recruited (and
even trained) ahead of an anticipated resignation or
retirement. This is necessary to ensure the smooth and
effective functioning of an office. Between prompt and
lackadaisical action, the former is preferable. It is
immaterial that there is an identified successor-in-
waiting so long as there are no simultaneous
occupants of an office. On the second ground, the third
paragraph of Section 44 of the IBP By-Laws clearly
provides that "the delegates from the region shall by
majority, elect a successor from among the members
of the Chapter to which the resigned governor is a
member." There is no ambiguity in this text. We are
surprised that the IBP—an institution expected to
uphold the rule of law—has chosen to rely on "tradition"
to validate its action. The IBP Board of Governors
arrogated unto itself a power which is vested in the
delegates of the concerned IBP region. This arrogation
is a manifest violation of the clear and unmistakable
terms of the IBP’s By-Laws. We cannot countenance
this. No amount of previous practice or "tradition" can
validate such a patently erroneous action. It is,
therefore, lear that Atty. Chaguile’s designation as IBP
Governor for Northern Luzon is tainted with irregularity,
and therefore, invalid.
Nevertheless, following the adoption of the IBP Board
of Governors Omnibus Resolution dated March 21,
2013at the time Atty. Ubano filed the Original Motion
and up until June 30, 2013 when her "term x x x
expired,"44 Atty. Chaguile acted as and performed the
functions of the IBP Governor for Northern Luzon. This
is an accomplished fact which no amount of legal
abstraction can undo. It is in this context, with the
backdrop of this consummated truth,that we rule on the
Administrative Matters before us. Given these
circumstances, we hold that Atty. Chaguile took on the
role of IBP Governor for Northern Luzon in a de
facto capacity.
De facto means "in point of fact."45 To speak of
something as being de factois,thus,to say that it is
"[a]ctual [or] existing in fact"46 as opposed to "[e]xisting
by right or according to law,"47 that is, de jure. Being
factual though not being founded on right or law, de
facto is,therefore, "illegitimate but in effect."48
The concept of a de facto officer was explained in Civil
Service Commission v. Joson, Jr.:49
The broad definition of what constitutes an officer de
facto was formulated by Lord Holt in Parker v. Kent,
and reiterated by Lord Ellenborough and full King’s
Bench in 1865 in Rex v. Bedford Level, "One who has
the reputation of being the officer he assumes and yet
is not a good officer in point of law." A de facto officer
is one who is in possession of the office and
discharging its duties under color of authority. By color
of authority is meant that derived from an election or
appointment, however irregular or informal, so that the
incumbent is not a mere volunteer.50(Emphasis and
underscoring supplied)
A de facto officer is distinguished form a de jure officer,
as follows:
The difference between the basis of the authority of
a de jure officer and that of a de facto officer is that one
rests on right, the other on reputation. It may be likened
to the difference between character and reputation.
One is the truth of a man, the other is what is thought
of him.51
Moreover, as against a mere usurper, "[i]t is the color
of authority, not the color of title that distinguishes an
officer de facto from a usurper."52 Thus, a mere
usurper is one "who takes possession of [an] office and
undertakes to act officially without any color of right or
authority, either actual or apparent."53 A usurper is no
officer at all.54
The expanse of the de facto doctrine was established
early in the development of our jurisprudence. In Luna
v. Rodriguez,55 the doctrine was established to
contemplate situations where the duties of the office
were exercised: (a) Without a known appointment or
election, but under such circumstances of reputation or
acquiescence as were calculated to induce people,
without inquiry, to submit to or invoke his action,
supposing him to be the officer he assumes to be; (b)
under color of a known or valid appointment or election,
where the officer has failed to conform to some
precedent requirement or condition, for example, a
failure to take the oath or give a bond, or similar defect;
(c) under color of a known election or appointment, void
because the officer was not eligible, or because there
was a want of power in the electing or appointing body,
or by reason of some defect or irregularity in its
exercise, such ineligibility, want of power or defect
being unknown to the public; and (d) under color of an
election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be
such.56 (Emphases and underscoring supplied)
This coverage, affirmed and reiterated in subsequent
jurisprudence,57 unequivocally includes officers whose
election is void because the body that elected (or
otherwise designated) them lacked the capacity to do
so. This is precisely the situation in this case: The
power to elect an IBP Governor is lodged in the
delegates of the concerned region, not in the IBP
Board of Governors; yet the IBP Board of Governors
approved Atty. Chaguile’s nomination as IBP Governor
for Northern Luzon.
To be a de facto officer, all of the following elements
must be present:
1) There must be a de jure office;
2) There must be color of right orgeneral
acquiescence by the public; and
3) There must be actual physical possession
of the office in good faith.58 (Underscoring
supplied)
In the present case, there is no dispute that a de
jure office—that of IBP Governor for Northern Luzon—
exists.
Neither is there any dispute that Atty. Chaguile took
possession of and performed the functions of such
office. In fact, the Motions submitted as part of the first
Administrative Matter were precisely intended to put a
stop to her performance of these functions. Likewise,
Atty. Chaguile took possession of and performed the
functions of the IBP Governor for Northern Luzon
through a process, albeit "irregular or informal, so that
[she] is not a mere volunteer,"59that is, not through her
own actions but through those of the IBP Board of
Governors. Thus, she did so under "color of authority,"
as defined in settled jurisprudence (e.g., Civil Service
Commission v. Joson, Jr.,60 Dimaandal v. Commission
on Audit,61 and Dennis A.B. Funa v. Acting Secretary
of Justice Alberto C. Agra 62).
The IBP Board of Governors’ approval was secured
through a process that it characterized as a "tradition,"
allowing it to appoint a replacement for an officer who
vacates his or her office shortly before his or her term
expires. It cited seven (7) cases, spanning a period of
more than twenty-six (26) years, in which this tradition
was exercised. Of these, three (3) occurred after the
March 2, 1993 amendment of the IBP By-Laws which
requires that a successor governor be elected by the
delegates of the concerned region. Thus, the "tradition"
persisted even after the amended By-Laws had vested
the power to elect a replacement in the delegates of
the concerned region.
Being in violation of the IBP By-Laws (as amended on
March 2, 1993), this supposed tradition cannot earn
our imprimatur. Be that as it may, in all of the occasions
cited by the IBP Board of Governors, the authority of
replacement governors was derived from a process,
which, though irregular, enabled them to act as and be
accepted as governors. It was with this backdrop that
Atty. Chaguile herself was designated as IBP Governor
for Northern Luzon. Illumined by this context, thecolor
of authority or right under which Atty. Chaguile became
IBP Governor for Northern Luzon is all the more stark.
This same color of authority or right negates any
insinuation that Atty. Chaguile assumed office out of
her own design or contrivance; that is, that she did so
in bad faith. She precisely relied on established
practice, now established as invalid but nevertheless
historically accepted. Atty. Ubano alleged that then IBP
President Roan Libarios imposed upon the IBP Board
of Governors the approval of Atty. Chaguile’s
nomination; that Atty. Habawel wrongly participated in
the vote to approve Atty. Chaguile’s nomination; and
that the IBP Board of Governors itself violated the IBP
By-Laws. Yet, he failed to allege that Atty. Chaguile
was her self a party to any scheme or artifice that might
have been designed so that she would be able to
secure the IBP Governorship for Northern Luzon.
Furthermore, no evidence was presented to show that
there was coercion imposed on the other governors of
the Integrated Bar of the Philippines.
We note that on May 16, 2013,signatories claiming to
be delegates of the IBP Northern Luzon Region
submitted to this Court a copy of an undated
Resolution calling for an election to name Atty. Denis
B. Habawel’s successor as IBP Governor for Northern
Luzon. We also note that on May 20, 2013, the same
individuals submitted their Opposition to Atty.
Chaguile’s nomination as Atty. Habawel’s
replacement. On the basis of this, there appears to be
a ground for arguing that there was no "general
acquiescence by the public"63 to Atty. Chaguile’s
having replaced Atty. Habawel.
The second requisite for being a de facto officer, as
spelled out in Tuandav. Sandiganbayan,64 reads:
"There must be color of right or general acquiescence
by the public."65 Clearly, the requisite is stated in the
alternative. Color of right also suffices. We have
already discussed how Atty. Chaguile took on the role
of IBP Governor for Northern Luzon with color of right
(or authority).
We fail to see how the action of six(6)
individuals66sustains the assertion that the public
never acquiesced to Atty. Chaguile’s having replaced
Atty. Habawel. The requisite speaks of "general
acquiescence." To be "general" is not to be "absolute."
It is to speak of a commonality that exists for the most
partbut not necessarily entirely. It admits of exceptions.
That there are those who count themselves as
objectors merely attests to their existence. It does not,
in and of itself, repudiate that which may generally
exist. Thus,to equate the action of a handful ofactive
objectors with the utter lack of "general acquiescence"
would be non sequitur.
Granting that these six(6) individuals are in fact the
legitimate delegates of the IBP Northern Luzon Region
and even if we disregard their sheer number, they still
fail to represent or embody the "public." They are direct
participants, having been the individuals whose right to
elect the IBP Governor for Northern Luzon was
supposedly undermined. Precisely, their being direct
participants –meaning, persons whose supposed
rights were violated –makes them actual parties to the
controversy. That they themselves chose to file an
Opposition and submit themselves to this Court’s
adjudication of this case evidences their own
acknowledgement of this.
The de facto doctrine was devised to benefit the public.
On the validity of actions made by de facto officers, it
is settled that "the acts of the de facto officer are just
as valid for all purposes as those of a de jure officer, in
so far as the public or third persons who are interested
therein are concerned."67 This is premised on the
reality that "[t]hird persons x x x cannot always
investigate the right of one assuming to hold an
important office. They have aright to assume that
officials apparently qualified and in office are legally
such."68
The third party affected by the nature of the assumption
into office by Atty. Chaguile is the mass of lawyers
belonging to the Integrated Bar of the Philippines.
Again, the whole legal profession becomes witness to
how the selection of its leaders has practically become
annual intramurals of both political and legal
controversy. In our April 11, 2013 Resolution in A.M.
No. 09-5-2-SC and A.C. No. 8292, we observed that
this has brought about disenchantment within the ranks
of the Integrated Bar of the Philippines. In truth, many
suspect that these elections are contests between
exclusive groups that maneuver to find allies year in
and year out to control the helm of this mandatory
lawyers’ organization.
The disposition we give to this case is also partly to
quiet these conflicts and to deny any reward to further
legal controversy. After all, in our April 11, 2013
Resolution in A.M. No. 09-5-2-SC and A.C. No. 8292,
we created a permanent Committee for IBP Affairs "to
primarily attend to the problems and needs of a very
important professional body and to make
recommendation for its improvement and
strengthening."69
Should that initiative still fail, this Court should seriously
review the present modality of the Integrated Bar.
Instead of individual membership, a more functional
alternative might be organizational membership. This
means that voluntary organizations such as the Free
Legal Assistance Group (FLAG), the Alternative Law
Groups (ALG), the Philippine Bar Association (PBA),
the U.P. Women Lawyers’ Circle (WILOCI), and other
organizations can coalesce and nominate leaders to
comprise a council. Thus, every lawyer will have a
mature choice to determine which of these
organizations best represents his or her interests. This
harmonizes better with their right to free association.
All considered, the circumstances under which Atty.
Chaguile’s nomination was approved and under which
Atty. Chaguile subsequently assumed the role of IBP
Governor for Northern Luzon are sufficient to induce
a generalbelief that she was properly the IBP Governor
for Northern Luzon and that her actions in this office
were properly invoked.
Having said these, we agree with a point raised by Atty.
Ubano. As with statutes, the IBP By-Laws’ "violation or
non-observance [ought] not be excused by disuse, or
custom, or practice to the contrary."70 We do not
validate the IBP Board of Governors’ erroneous
practice. To reiterate our earlier words: "We cannot
countenance this. No amount of previous practice or
"tradition" can validate such a patently erroneous
action."
Nonetheless, even as we decry the IBP Board of
Governor’s reliance on "tradition," we do not lose sight
of the fact, palpable and immutable, that Atty. Chaguile
has so acted as IBP Governor for Northern Luzon.
Thankfully, our legal system has an established means
through which we are able to avert the "chaos that
would result from multiple and repetitious [challenges
to] every action taken by [an] official whose claim to
office could be open to question."71 It is strictly in view
of this that we make a determination that Atty. Chaguile
was the de facto IBP Governor for Northern Luzon.We
are not validating a wrong; we are merely addressing
an exigency.
Having established that Atty. Chaguile was the IBP
Governor for Northern Luzon in a de facto capacity, we
turn to the validity of her actions as a de facto officer.
To reiterate, one that is de facto is "illegitimate but in
effect."72 Thus, it is settled that "the acts of the de
facto officer are just as valid for all purposes as those
of a de jure officer, in so far as the public or third
persons who are interested therein are
concerned."73 This is necessary so as to protect the
sanctity of their dealings with those relying on their
ostensible authority:"[t]hird persons x x x cannot
always investigate the right of one assuming to hold an
important office. They have a right to assume that
officials apparently qualified and in office are legally
such."74
Accordingly, we hold that all official actions of Atty.
Chaguile as de facto IBP Governor for Northern Luzon
must be deemed valid, binding, and effective, as
though she were the officer validly appointed and
qualified for the office. It follows that her participation
and vote in the election for IBP EVP held on May 22,
2013 are in order.
We now proceed to the points raised by Atty. Ubano
assailing the conduct of the May 22, 2013 election for
the IBP EVP.
The Report on the Conduct of Election prepared by this
Court’s designated observer, Executive Judge Danilo
S. Cruz, reveals that Atty. Ubano’s objections were
properly and thoroughly discussed. He was given a
considerable length of time to air and argue his points.
It was only after thorough discussions that Atty.
Ubano’s Motion to postpone the elections—which he
insisted on raising even when the body was in the
process of nominating candidates for the position of
EVP—was declared out of order.75 Atty. Ubano himself
was then nominated for IBP EVP.76 He accepted his
nomination subject to the resolution of his Motion for
Reconsideration in A.M. No. 09-5-2-SC and A.C. No.
8292, as well as the resolution of the first
Administrative Matter.77
Before the members of the IBP Board of Governors
placed their votes, Atty. Ubano had sought to have
Atty. Chaguile’s ballot segregated and sealed pending
the resolution of his Motion for Reconsideration in A.M.
No. 09-5-2-SC and A.C. No. 8292, as well as the
resolution of the first Administrative Matter. His Motion
was denied.78 Votes were then cast, followed by tally
and canvassing. After the votes had been tallied, Atty.
Vicente M. Joyas received five (5) votes while Atty.
Ubano received four(4) votes. The Certificate of
Election was then prepared, certified by the presiding
officer and noted by this Court’s observer.79
Atty. Ubano was accorded more than an ample
opportunity to arguehis position. More importantly, his
position was amply considered by the body. Another
IBP governor, IBP Greater Manila Governor Dominic
C.M. Solis, even initially supported Atty. Ubano’s
insistence that the election be postponed, but Atty.
Solis subsequently withdrew hissupport.80
In his Urgent Omnibus Motion which gave rise to the
second Administrative Matter, Atty. Ubano made an
issue out of Atty. Vicente M. Joyas’ having designated
IBP National Secretary Nasser A. Marohomsalic as
Chairman of the Commission on Elections considering
that Atty.Joyas supposedly lacked the authority to do
so. Atty. Ubano made much of Atty. Joyas’ status as
IBP Governor for Southern Luzon. Atty. Ubano,
however, lost sight of the fact that Atty. Joyas was
likewise the Chairman of the IBP Executive Committee.
The Report on the Conduct of Election prepared by
Executive Judge Danilo S. Cruz recalls the pertinent
events as follows:
The election was scheduled at 11 A.M. Chairman
Joyas called the meeting to order at11:05 A.M.
National Secretary Marohomsalic certified that all
members of the Board were notified of the election
schedule and that with the presence of five (5)
members of the Board,81 there was a quorum. The
Chairman placed on record that the undersigned Court
Observer was in attendance.
Chairman Joyas said the meeting was for the purpose
of electing the EVP for 2011-2013 and designated the
COMELEC for the election, thus: Secretary
Marohomsalic as Chairman, Atty. Rosario T. Setlas-
Reyes, as second member, and IBP Head Executive
Assistant Aurora G. Geronimo as third member and
recorder of the proceedings. Chairman Joyas then
relinquished the Chair to COMELEC Chairman Nasser
A. Marohomsalic.82
Atty. Ubano’s own description of the circumstances
leading to the creation of the Executive Committee
states:
In light of the impending ipso facto resignation of Pres.
Libarios on 30 March 2013 which is the start of the
official campaign period, the IBP [Board of
Governors]discussed a mechanism to prevent hiatus
[sic]in the leadership of the IBP. After debate and
deliberation, it was agreed to constitute a five (5)[-]
member Executive Committee ("Ex Com") tasked to
temporarily administer the affairs of the IBP x x x.83
From Atty. Ubano’s description of the Executive
Committee’s function, it is evident that its principal
purpose is to ensure that the functions of the IBP
National President shall continue to be performed
despite IBP National President Roan Libarios’
resignation. Conformably with the Omnibus Resolution
creating the Executive Committee, Atty. Vicente M.
Joyas was designated as the Executive Committee
Chairman. It is pursuant to this designation and the
Executive Committee’s general function that Atty.
Joyas designated the Commission on Elections for the
election of the IBP EVP.
Further, Section 50 (d) of the IBP By-Laws provides:
(d) Secretary: The Secretary shall attend all meetings
of the Board of Governors, and keep a record of all the
proceedings thereof; prepare and maintain a register of
all members of the Integrated Bar; notify national
officers as well as members of national committees of
their election or appointment; cause to be prepared the
necessary official ballots for the election of Governors;
and perform such other duties as are assigned to him
by these By-Laws, by the President and by the Board
of Governors.(Underscoring supplied)
As IBP National Secretary, Atty. Marohomsalic may,
therefore, properly perform such other duties assigned
to him by the IBP National President. Thus, Atty.
Vicente M. Joyas, acting for the IBP Executive
Committee(in his capacity as its Chairman) and
pursuant to the Executive Committee’s purpose of
ensuring that the functions of the IBP National
President shall continue to be performed, was in a
position to designate the IBP National Secretary to
perform a duty other than those explicitly articulated in
the IBP By-Laws. As regards this case, that duty was
to be the duty of the Chairman of the Commission on
Elections. In turn, it was in his capacity as Commission
on Elections Chairman that Atty. Marohomsalic
presided over the conduct of the election.
In sum, we fail to see how the election could have been
tainted with the presiding officer’s absolute lack of
independence, manifest bias and prejudice, patent
hostility, and inordinate haste.84 We find no reason to
invalidate the election.
The Integrated Bar of the Philippines has long been
beset by leadership crises.1âwphi1 Our April 11, 2013
Resolution in A.M. No. 09-5-2-SC and A.C. No. 8292—
the same cases from which the subject matter of this
Resolution arose—chronicled the long, acrimonious
history of the leadership of the Integrated Bar of the
Philippines. It is, at the very least, strange that the
Integrated Bar has suffered these episodes while other
lawyers’ organizations have not. Again, it is worth while
to consider if there are other means of integrating the
members of the Bar— alternative ways that might
enable the Integrated Bar to satisfy its objectives more
effectively, democratize its leadership, and minimize its
need to seek the intervention of this Court.
The leadership of our Integrated Bar must find a better
way of resolving its conflicts other than elevating these
matters to this Court. It cannot fail to show maturity in
resolving its own conflicts. It behooves the members of
the legal profession to avoid being solitigious that they
lose sightof the primordial public interests that must be
upheld in every case and conflict that is raised to the
level of this Court.
Otherwise, the Integrated Bar of the Philippines will
continue to alienate its mass membership through
political contestations that may be viewed as parochial
intramurals from which only a few lawyers benefit. It will
be generations of leaders who model needless
litigation and wasted time and energy. This is not what
an integrated bar of a noble profession should
be.1âwphi1
WHEREFORE, the Motion to Declare dated March 27,
2013 as Ultra Vires or Invalid the Urgent Motion to
Defer/Restrain Performance of Duties as Successor
Governor of IBP Northern Luzon Regiondated April 22,
2013and the Very Urgent Motion to Restrain Atty.
Chaguile from Voting in the EVP Election on May22,
2013 dated May 20, 2013filed by Atty. Marlou B. Ubano
are DENIED for being moot and academic.
We DECLARE that Atty. Lynda Chaguilewas indeed a
de factoofficer during her tenure as IBP Governor for
Northern Luzon and that her acts as de factoofficer—
includingher having voted in the May 22, 2013
electionfor the Executive Vice President of the
Integrated Bar of the Philippines—are valid,
binding,and effective. The Urgent Omnibus Motion to
(1) Nullify the EVP Election on May 22, 2013 and (2)
Restrain Gov. Vicente M. Joyas of Southern Luzon
Region from Discharging the Duties of EVP/Acting
President until the Final Resolution of the Issues is
DENIED.
Let a copy of this Resolution be given to the Supreme
Court Oversight Committee on the Integrated Bar of
the Philippines reorganized by virtue of Memorandum
Order No. 20-2013 on June 13, 2013 for its proper
advice.
SO ORDERED.
G.R. No. 191644 February 19, 2013
DENNIS A.B. FUNA, Petitioner,
vs.
CTING SECRETARY OF JUSTICE ALBERTO C.
AGRA, IN HIS OFFICIAL CONCURRENT
CAPACITIES AS ACTING SECRETARY OF THE
DEPARTMENT OF JUSTICE AND AS ACTING
SOLICITOR GENERAL, EXECUTIVE SECRETARY
LEANDRO R. MENDOZA, OFFICE OF THE
PRESIDENT, Respondents.
DECISION
BERSAMIN, J.:
Section 13, Article VII of the 1987 Constitution
expressly prohibits the President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants from holding any other office or employment
during their tenure unless otherwise provided in the
Constitution. Complementing the prohibition is Section
7, paragraph (2), Article IX-B of the 1987 Constitution,
which bans any appointive official from holding any
other office or employment in the Government or any
subdivision, agency or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries, unless otherwise
allowed by law or the primary functions of his position.
These prohibitions under the Constitution are at the
core of this special civil action for certiorari and
prohibition commenced on April 7, 2010 to assail the
designation of respondent Hon. Alberto C. Agra, then
the Acting Secretary of Justice, as concurrently the
Acting Solicitor General.
Antecedents
The petitioner alleges that on March 1, 2010, President
Gloria M. Macapagal-Arroyo appointed Agra as the
Acting Secretary of Justice following the resignation of
Secretary Agnes VST Devanadera in order to vie for a
congressional seat in Quezon Province; that on March
5, 2010, President Arroyo designated Agra as the
Acting Solicitor General in a concurrent capacity; 1 that
on April 7, 2010, the petitioner, in his capacity as a
taxpayer, a concerned citizen and a lawyer,
commenced this suit to challenge the constitutionality
of Agra’s concurrent appointments or designations,
claiming it to be prohibited under Section 13, Article VII
of the 1987 Constitution; that during the pendency of
the suit, President Benigno S. Aquino III appointed
Atty. Jose Anselmo I. Cadiz as the Solicitor General;
and that Cadiz assumed as the Solicitor General and
commenced his duties as such on August 5, 2010.2
Agra renders a different version of the antecedents. He
represents that on January 12, 2010, he was then the
Government Corporate Counsel when President
Arroyo designated him as the Acting Solicitor General
in place of Solicitor General Devanadera who had been
appointed as the Secretary of Justice;3 that on March
5, 2010, President Arroyo designated him also as the
Acting Secretary of Justice vice Secretary Devanadera
who had meanwhile tendered her resignation in order
to run for Congress representing a district in Quezon
Province in the May 2010 elections; that he then
relinquished his position as the Government Corporate
Counsel; and that pending the appointment of his
successor, Agra continued to perform his duties as the
Acting Solicitor General.4
Notwithstanding the conflict in the versions of the
parties, the fact that Agra has admitted to holding the
two offices concurrently in acting capacities is settled,
which is sufficient for purposes of resolving the
constitutional question that petitioner raises herein.
The Case
In Funa v. Ermita,5 the Court resolved a petition
for certiorari, prohibition and mandamus brought by
herein petitioner assailing the constitutionality of the
designation of then Undersecretary of the Department
of Transportation and Communications (DOTC) Maria
Elena H. Bautista as concurrently the Officer-in-Charge
of the Maritime Industry Authority. The petitioner has
adopted here the arguments he advanced in Funa v.
Ermita, and he has rested his grounds of challenge
mainly on the pronouncements in Civil Liberties Union
v. Executive Secretary6and Public Interest Center, Inc.
v. Elma.7
What may differentiate this challenge from those in the
others is that the appointments being hereby
challenged were in acting or temporary capacities. Still,
the petitioner submits that the prohibition under Section
13, Article VII of the 1987 Constitution does not
distinguish between an appointment or designation of
a Member of the Cabinet in an acting or temporary
capacity, on the one hand, and one in a permanent
capacity, on the other hand; and that Acting
Secretaries, being nonetheless Members of the
Cabinet, are not exempt from the constitutional ban. He
emphasizes that the position of the Solicitor General is
not an ex officio position in relation to the position of
the Secretary of Justice, considering that the Office of
the Solicitor General (OSG) is an independent and
autonomous office attached to the Department of
Justice (DOJ).8 He insists that the fact that Agra was
extended an appointment as the Acting Solicitor
General shows that he did not occupy that office in
an ex officio capacity because an ex officio position
does not require any further warrant or appointment.
Respondents contend, in contrast, that Agra’s
concurrent designations as the Acting Secretary of
Justice and Acting Solicitor General were only in a
temporary capacity, the only effect of which was to
confer additional duties to him. Thus, as the Acting
Solicitor General and Acting Secretary of Justice, Agra
was not "holding" both offices in the strict constitutional
sense.9 They argue that an appointment, to be covered
by the constitutional prohibition, must be regular and
permanent, instead of a mere designation.
Respondents further contend that, even on the
assumption that Agra’s concurrent designation
constituted "holding of multiple offices," his continued
service as the Acting Solicitor General was akin to a
hold-over; that upon Agra’s designation as the Acting
Secretary of Justice, his term as the Acting Solicitor
General expired in view of the constitutional prohibition
against holding of multiple offices by the Members of
the Cabinet; that under the principle of hold-over, Agra
continued his service as the Acting Solicitor General
"until his successor is elected and qualified"10 to
"prevent a hiatus in the government pending the time
when a successor may be chosen and inducted into
office;"11 and that during his continued service as the
Acting Solicitor General, he did not receive any salaries
and emoluments from the OSG after becoming the
Acting Secretary of Justice on March 5, 2010.12
Respondents point out that the OSG’s independence
and autonomy are defined by the powers and functions
conferred to that office by law, not by the person
appointed to head such office;13 and that although the
OSG is attached to the DOJ, the DOJ’s authority,
control and supervision over the OSG are limited only
to budgetary purposes.14
In his reply, petitioner counters that there was no
"prevailing special circumstance" that justified the non-
application to Agra of Section 13, Article VII of the 1987
Constitution;15 that the temporariness of the
appointment or designation is not an excuse to
disregard the constitutional ban against holding of
multiple offices by the Members of the Cabinet;16 that
Agra’s invocation of the principle of hold-over is
misplaced for being predicated upon an erroneous
presentation of a material fact as to the time of his
designation as the Acting Solicitor General and Acting
Secretary of Justice; that Agra’s concurrent
designations further violated the Administrative Code
of 1987 which mandates that the OSG shall be
autonomous and independent.17
Issue
Did the designation of Agra as the Acting Secretary of
Justice, concurrently with his position of Acting Solicitor
General, violate the constitutional prohibition against
dual or multiple offices for the Members of the Cabinet
and their deputies and assistants?
Ruling
The petition is meritorious.
The designation of Agra as Acting Secretary of Justice
concurrently with his position of Acting Solicitor
General was unconstitutional and void for being in
violation of the constitutional prohibition under Section
13, Article VII of the 1987 Constitution.
1.
Requisites of judicial review not in issue
The power of judicial review is subject to limitations, to
wit: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the person
challenging the act must have the standing to assail the
validity of the subject act or issuance, that is, he must
have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct injury
as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must
be the very lis mota of the case.18
Here, the OSG does not dispute the justiciability and
ripeness for consideration and resolution by the Court
of the matter raised by the petitioner. Also, the locus
standi of the petitioner as a taxpayer, a concerned
citizen and a lawyer to bring a suit of this nature has
already been settled in his favor in rulings by the Court
on several other public law litigations he brought.
In Funa v. Villar,19 for one, the Court has held:
To have legal standing, therefore, a suitor must show
that he has sustained or will sustain a "direct injury" as
a result of a government action, or have a "material
interest" in the issue affected by the challenged official
act. However, the Court has time and again acted
liberally on the locus standi requirements and has
accorded certain individuals, not otherwise
directly injured, or with material interest affected,
by a Government act, standing to sue provided a
constitutional issue of critical significance is at
stake. The rule on locus standi is after all a mere
procedural technicality in relation to which the
Court, in a catena of cases involving a subject of
transcendental import, has waived, or relaxed, thus
allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or
legislators, to sue in the public interest, albeit they
may not have been personally injured by the
operation of a law or any other government act.
In David, the Court laid out the bare minimum norm
before the so-called "non-traditional suitors" may
be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of
illegal disbursement of public funds or that the
tax measure is unconstitutional;
2.) For voters, there must be a showing of
obvious interest in the validity of the election
law in question;
3.) For concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be
settled early; and
4.) For legislators, there must be a claim that
the official action complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental
importance, since it obviously has "far-reaching
implications," and there is a need to promulgate
rules that will guide the bench, bar, and the public
in future analogous cases. We, thus, assume a
liberal stance and allow petitioner to institute the
instant petition.20 (Bold emphasis supplied)
In Funa v. Ermita,21 the Court recognized the locus
standi of the petitioner as a taxpayer, a concerned
citizen and a lawyer because the issue raised therein
involved a subject of transcendental importance whose
resolution was necessary to promulgate rules to guide
the Bench, Bar, and the public in similar cases.
But, it is next posed, did not the intervening
appointment of and assumption by Cadiz as the
Solicitor General during the pendency of this suit
render this suit and the issue tendered herein moot and
academic?
A moot and academic case is one that ceases to
present a justiciable controversy by virtue of
supervening events, so that a declaration thereon
would be of no practical use or value. 22 Although the
controversy could have ceased due to the intervening
appointment of and assumption by Cadiz as the
Solicitor General during the pendency of this suit, and
such cessation of the controversy seemingly rendered
moot and academic the resolution of the issue of the
constitutionality of the concurrent holding of the two
positions by Agra, the Court should still go forward and
resolve the issue and not abstain from exercising its
power of judicial review because this case comes
under several of the well-recognized exceptions
established in jurisprudence. Verily, the Court did not
desist from resolving an issue that a supervening event
meanwhile rendered moot and academic if any of the
following recognized exceptions obtained, namely: (1)
there was a grave violation of the Constitution; (2) the
case involved a situation of exceptional character and
was of paramount public interest; (3) the constitutional
issue raised required the formulation of controlling
principles to guide the Bench, the Bar and the public;
and (4) the case was capable of repetition, yet evading
review.23
It is the same here. The constitutionality of the
concurrent holding by Agra of the two positions in the
Cabinet, albeit in acting capacities, was an issue that
comes under all the recognized exceptions. The issue
involves a probable violation of the Constitution, and
relates to a situation of exceptional character and of
paramount public interest by reason of its
transcendental importance to the people. The
resolution of the issue will also be of the greatest value
to the Bench and the Bar in view of the broad powers
wielded through said positions. The situation further
calls for the review because the situation is capable of
repetition, yet evading review.24 In other words, many
important and practical benefits are still to be gained
were the Court to proceed to the ultimate resolution of
the constitutional issue posed.
2.
Unconstitutionality of Agra’s concurrent
designation as Acting Secretary of Justice and
Acting Solicitor General
At the center of the controversy is the correct
application of Section 13, Article VII of the 1987
Constitution, viz:
Section 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment
during their tenure. They shall not, during said tenure,
directly or indirectly practice any other profession,
participate in any business, or be financially interested
in any contract with, or in any franchise, or special
privilege granted by the Government or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
A relevant and complementing provision is Section 7,
paragraph (2), Article IX-B of the 1987 Constitution, to
wit:
Section 7. x x x
Unless otherwise allowed by law or the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or
any subdivision, agency or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries.
The differentiation of the two constitutional provisions
was well stated in Funa v. Ermita,25 a case in which the
petitioner herein also assailed the designation of
DOTC Undersecretary as concurrent Officer-in-Charge
of the Maritime Industry Authority, with the Court
reiterating its pronouncement in Civil Liberties Union v.
The Executive Secretary26 on the intent of the Framers
behind these provisions of the Constitution, viz:
Thus, while all other appointive officials in the civil
service are allowed to hold other office or employment
in the government during their tenure when such is
allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized
by the Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule
applicable to all elective and appointive public
officials and employees, while Section 13, Article
VII is meant to be the exception applicable only to
the President, the Vice-President, Members of the
Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet,
their deputies and assistants with respect to holding
multiple offices or employment in the government
during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that
it must be understood as intended to be a positive and
unequivocal negation of the privilege of holding
multiple government offices or employment. Verily,
wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a
positive and unequivocal negation. The phrase
"unless otherwise provided in this Constitution"
must be given a literal interpretation to refer only
to those particular instances cited in the
Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section
3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3),
Article VII; and, the Secretary of Justice being ex-
officio member of the Judicial and Bar Council by
virtue of Section 8 (1), Article VIII. (Bold emphasis
supplied.)
Being designated as the Acting Secretary of Justice
concurrently with his position of Acting Solicitor
General, therefore, Agra was undoubtedly covered by
Section 13, Article VII, supra, whose text and spirit
were too clear to be differently read. Hence, Agra could
not validly hold any other office or employment during
his tenure as the Acting Solicitor General, because the
Constitution has not otherwise so provided.27
It was of no moment that Agra’s designation was in an
acting or temporary capacity. The text of Section
13, supra, plainly indicates that the intent of the
Framers of the Constitution was to impose a stricter
prohibition on the President and the Members of his
Cabinet in so far as holding other offices or
employments in the Government or in government-
owned or government controlled-corporations was
concerned.28 In this regard, to hold an office means to
possess or to occupy the office, or to be in possession
and administration of the office, which implies nothing
less than the actual discharge of the functions and
duties of the office.29 Indeed, in the language of
Section 13 itself, supra, the Constitution makes no
reference to the nature of the appointment or
designation. The prohibition against dual or multiple
offices being held by one official must be construed as
to apply to all appointments or designations, whether
permanent or temporary, for it is without question that
the avowed objective of Section 13, supra, is to prevent
the concentration of powers in the Executive
Department officials, specifically the President, the
Vice-President, the Members of the Cabinet and their
deputies and assistants.30 To construe differently is to
"open the veritable floodgates of circumvention of an
important constitutional disqualification of officials in
the Executive Department and of limitations on the
President’s power of appointment in the guise of
temporary designations of Cabinet Members,
undersecretaries and assistant secretaries as officers-
in-charge of government agencies, instrumentalities, or
government-owned or controlled corporations."31
According to Public Interest Center, Inc. v. Elma,32 the
only two exceptions against the holding of multiple
offices are: (1) those provided for under the
Constitution, such as Section 3, Article VII, authorizing
the Vice President to become a member of the Cabinet;
and (2) posts occupied by Executive officials specified
in Section 13, Article VII without additional
compensation in ex officio capacities as provided by
law and as required by the primary functions of the
officials’ offices. In this regard, the decision in Public
Interest Center, Inc. v. Elma adverted to the resolution
issued on August 1, 1991 in Civil Liberties Union v. The
Executive Secretary, whereby the Court held that the
phrase "the Members of the Cabinet, and their deputies
or assistants" found in Section 13, supra, referred only
to the heads of the various executive departments,
their undersecretaries and assistant secretaries, and
did not extend to other public officials given the rank of
Secretary, Undersecretary or Assistant
Secretary.33 Hence, in Public Interest Center, Inc. v.
Elma, the Court opined that the prohibition under
Section 13 did not cover Elma, a Presidential Assistant
with the rank of Undersecretary.34
It is equally remarkable, therefore, that Agra’s
designation as the Acting Secretary of Justice was not
in an ex officio capacity, by which he would have been
validly authorized to concurrently hold the two positions
due to the holding of one office being the consequence
of holding the other. Being included in the stricter
prohibition embodied in Section 13, supra, Agra cannot
liberally apply in his favor the broad exceptions
provided in Section 7, paragraph 2, Article IX-B of the
Constitution ("Unless otherwise allowed by law or the
primary functions of his position") to justify his
designation as Acting Secretary of Justice concurrently
with his designation as Acting Solicitor General, or vice
versa. Thus, the Court has said –
[T]he qualifying phrase "unless otherwise provided in
this Constitution" in Section 13, Article VII cannot
possibly refer to the broad exceptions provided under
Section 7, Article IX-B of the 1987 Constitution. To
construe said qualifying phrase as respondents would
have us do, would render nugatory and meaningless
the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the
President, Vice-President, Members of the Cabinet,
their deputies and assistants with respect to holding
other offices or employment in the government during
their tenure. Respondents’ interpretation that Section
13 of Article VII admits of the exceptions found in
Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the
Constitution as to when the highranking officials of the
Executive Branch from the President to Assistant
Secretary, on the one hand, and the generality of civil
servants from the rank immediately below Assistant
Secretary downwards, on the other, may hold any
other office or position in the government during their
tenure.35
To underscore the obvious, it is not sufficient for Agra
to show that his holding of the other office was "allowed
by law or the primary functions of his position." To claim
the exemption of his concurrent designations from the
coverage of the stricter prohibition under Section
13, supra, he needed to establish herein that his
concurrent designation was expressly allowed by the
Constitution. But, alas, he did not do so.
To be sure, Agra’s concurrent designations as Acting
Secretary of Justice and Acting Solicitor General did
not come within the definition of an ex
officio capacity. Had either of his concurrent
designations been in an ex officio capacity in relation
to the other, the Court might now be ruling in his favor.
The import of an ex officio capacity has been fittingly
explained in Civil Liberties Union v. Executive
Secretary,36 as follows:
x x x. The term ex officio means "from office; by virtue
of office." It refers to an "authority derived from official
character merely, not expressly conferred upon the
individual character, but rather annexed to the official
position." Ex officio likewise denotes an "act done in an
official character, or as a consequence of office, and
without any other appointment or authority other than
that conferred by the office." An ex officio member of a
board is one who is a member by virtue of his title to a
certain office, and without further warrant or
appointment. x x x.
xxxx
The ex officio position being actually and in legal
contemplation part of the principal office, it follows that
the official concerned has no right to receive additional
compensation for his services in the said position. The
reason is that these services are already paid for and
covered by the compensation attached to his principal
office. x x x.
Under the Administrative Code of 1987, the DOJ is
mandated to "provide the government with a principal
law agency which shall be both its legal counsel and
prosecution arm; administer the criminal justice system
in accordance with the accepted processes thereof
consisting in the investigation of the crimes,
prosecution of offenders and administration of the
correctional system; implement the laws on the
admission and stay of aliens, citizenship, land titling
system, and settlement of land problems involving
small landowners and members of indigenous cultural
minorities; and provide free legal services to indigent
members of the society."37 The DOJ’s specific powers
and functions are as follows:
(1) Act as principal law agency of the
government and as legal counsel and
representative thereof, whenever so required;
(2) Investigate the commission of crimes,
prosecute offenders and administer the
probation and correction system;
(3) Extend free legal
assistance/representation to indigents and
poor litigants in criminal cases and non-
commercial civil disputes;
(4) Preserve the integrity of land titles through
proper registration;
(5) Investigate and arbitrate untitled land
disputes involving small landowners and
members of indigenous cultural communities;
(6) Provide immigration and naturalization
regulatory services and implement the laws
governing citizenship and the admission and
stay of aliens;
(7) Provide legal services to the national
government and its functionaries, including
government-owned or controlled corporations
and their subsidiaries; and
(8) Perform such other functions as may be
provided by law.38
On the other hand, the Administrative Code of
1987 confers upon the Office of the Solicitor General
the following powers and functions, to wit:
The Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring
the services of lawyers. When authorized by the
President or head of the office concerned, it shall also
represent government owned or controlled
corporations. The Office of the Solicitor General shall
discharge duties requiring the services of lawyers. It
shall have the following specific powers and functions:
1. Represent the Government in the Supreme
Court and the Court of Appeals in all criminal
proceedings; represent the Government and
its officers in the Supreme Court, the Court of
Appeals, and all other courts or tribunals in all
civil actions and special proceedings in which
the Government or any officer thereof in his
official capacity is a party.
2. Investigate, initiate court action, or in any
manner proceed against any person,
corporation or firm for the enforcement of any
contract, bond, guarantee, mortgage, pledge
or other collateral executed in favor of the
Government. Where proceedings are to be
conducted outside of the Philippines the
Solicitor General may employ counsel to
assist in the discharge of the aforementioned
responsibilities.
3. Appear in any court in any action involving
the validity of any treaty, law, executive order
or proclamation, rule or regulation when in his
judgment his intervention is necessary or
when requested by the Court.
4. Appear in all proceedings involving the
acquisition or loss of Philippine citizenship.
5. Represent the Government in all land
registration and related proceedings. Institute
actions for the reversion to the Government of
lands of the public domain and improvements
thereon as well as lands held in violation of
the Constitution.
6. Prepare, upon request of the President or
other proper officer of the National
Government, rules and guidelines for
government entities governing the
preparation of contracts, making investments,
undertaking of transactions, and drafting of
forms or other writings needed for official use,
with the end in view of facilitating their
enforcement and insuring that they are
entered into or prepared conformably with law
and for the best interests of the public.
7. Deputize, whenever in the opinion of the
Solicitor General the public interest requires,
any provincial or city fiscal to assist him in the
performance of any function or discharge of
any duty incumbent upon him, within the
jurisdiction of the aforesaid provincial or city
fiscal. When so deputized, the fiscal shall be
under the control and supervision of the
Solicitor General with regard to the conduct of
the proceedings assigned to the fiscal, and he
may be required to render reports or furnish
information regarding the assignment.
8. Deputize legal officers of government
departments, bureaus, agencies and offices
to assist the Solicitor General and appear or
represent the Government in cased involving
their respective offices, brought before the
courts and exercise supervision and control
over such legal Officers with respect to such
cases.
9. Call on any department, bureau, office,
agency or instrumentality of the Government
for such service, assistance and cooperation
as may be necessary in fulfilling its functions
and responsibilities and for this purpose enlist
the services of any government official or
employee in the pursuit of his tasks.
10. Departments, bureaus, agencies, offices,
instrumentalities and corporations to whom
the Office of the Solicitor General renders
legal services are authorized to disburse
funds from their sundry operating and other
funds for the latter Office. For this purpose,
the Solicitor General and his staff are
specifically authorized to receive allowances
as may be provided by the Government
offices, instrumentalities and corporations
concerned, in addition to their regular
compensation.
11. Represent, upon the instructions of the
President, the Republic of the Philippines in
international litigations, negotiations or
conferences where the legal position of the
Republic must be defended or presented.
12. Act and represent the Republic and/or the
people before any court, tribunal, body or
commission in any matter, action or
proceedings which, in his opinion affects the
welfare of the people as the ends of justice
may require; and
13. Perform such other functions as may be
provided by law.39
The foregoing provisions of the applicable laws show
that one position was not derived from the other.
Indeed, the powers and functions of the OSG are
neither required by the primary functions nor included
by the powers of the DOJ, and vice versa. The OSG,
while attached to the DOJ,40 is not a constituent unit of
the latter,41 as, in fact, the Administrative Code of
1987 decrees that the OSG is independent and
autonomous.42 With the enactment of Republic Act No.
9417,43 the Solicitor General is now vested with a
cabinet rank, and has the same qualifications for
appointment, rank, prerogatives, salaries, allowances,
benefits and privileges as those of the Presiding
Justice of the Court of Appeals.44
Moreover, the magnitude of the scope of work of the
Solicitor General, if added to the equally demanding
tasks of the Secretary of Justice, is obviously too much
for any one official to bear. Apart from the sure peril of
political pressure, the concurrent holding of the two
positions, even if they are not entirely incompatible,
may affect sound government operations and the
proper performance of duties. Heed should be paid to
what the Court has pointedly observed in Civil Liberties
Union v. Executive Secretary: 45
Being head of an executive department is no mean job.
It is more than a full-time job, requiring full attention,
specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department
head’s ability and expertise, he should be allowed to
attend to his duties and responsibilities without the
distraction of other governmental offices or
employment. He should be precluded from dissipating
his efforts, attention and energy among too many
positions of responsibility, which may result in
haphazardness and inefficiency. Surely the
advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this
stage of our national and economic development, far
outweigh the benefits, if any, that may be gained from
a department head spreading himself too thin and
taking in more than what he can handle.
It is not amiss to observe, lastly, that assuming that
Agra, as the Acting Solicitor General, was not covered
by the stricter prohibition under Section 13, supra, due
to such position being merely vested with a cabinet
rank under Section 3, Republic Act No. 9417, he
nonetheless remained covered by the general
prohibition under Section 7, supra. Hence, his
concurrent designations were still subject to the
conditions under the latter constitutional provision. In
this regard, the Court aptly pointed out in Public
Interest Center, Inc. v. Elma:46
The general rule contained in Article IX-B of the 1987
Constitution permits an appointive official to hold more
than one office only if "allowed by law or by the primary
functions of his position." In the case of Quimson v.
Ozaeta, this Court ruled that, "[t]here is no legal
objection to a government official occupying two
government offices and performing the functions of
both as long as there is no incompatibility." The crucial
test in determining whether incompatibility exists
between two offices was laid out in People v. Green -
whether one office is subordinate to the other, in the
sense that one office has the right to interfere with the
other.
[I]ncompatibility between two offices, is an
inconsistency in the functions of the two; x x x Where
one office is not subordinate to the other, nor the
relations of the one to the other such as are
inconsistent and repugnant, there is not that
incompatibility from which the law declares that the
acceptance of the one is the vacation of the other. The
force of the word, in its application to this matter is, that
from the nature and relations to each other, of the two
places, they ought not to be held by the same person,
from the contrariety and antagonism which would result
in the attempt by one person to faithfully and impartially
discharge the duties of one, toward the incumbent of
the other. X x x The offices must subordinate, one
[over] the other, and they must, per se, have the right
to interfere, one with the other, before they are
incompatible at common law. x x x.
xxxx
While Section 7, Article IX-B of the 1987 Constitution
applies in general to all elective and appointive
officials, Section 13, Article VII, thereof applies in
particular to Cabinet secretaries, undersecretaries and
assistant secretaries. In the Resolution in Civil
Liberties Union v. Executive Secretary, this Court
already clarified the scope of the prohibition provided
in Section 13, Article VII of the 1987 Constitution. Citing
the case of US v. Mouat, it specifically identified the
persons who are affected by this prohibition as
secretaries, undersecretaries and assistant
secretaries; and categorically excluded public officers
who merely have the rank of secretary, undersecretary
or assistant secretary.
Another point of clarification raised by the Solicitor
General refers to the persons affected by the
constitutional prohibition. The persons cited in the
constitutional provision are the "Members of the
Cabinet, their deputies and assistants." These terms
must be given their common and general acceptation
as referring to the heads of the executive departments,
their undersecretaries and assistant
secretaries. Public officials given the rank equivalent to
a Secretary, Undersecretary, or Assistant Secretary
are not covered by the prohibition, nor is the Solicitor
General affected thereby. (Italics supplied).
It is clear from the foregoing that the strict prohibition
under Section 13, Article VII of the 1987 Constitution is
not applicable to the PCGG Chairman nor to the CPLC,
as neither of them is a secretary, undersecretary, nor
an assistant secretary, even if the former may have the
same rank as the latter positions.
It must be emphasized, however, that despite the non-
applicability of Section 13, Article VII of the 1987
Constitution to respondent Elma, he remains covered
by the general prohibition under Section 7, Article IX-B
and his appointments must still comply with the
standard of compatibility of officers laid down therein;
failing which, his appointments are hereby pronounced
in violation of the Constitution.47
Clearly, the primary functions of the Office of the
Solicitor General are not related or necessary to the
primary functions of the Department of Justice.
Considering that the nature and duties of the two
offices are such as to render it improper, from
considerations of public policy, for one person to retain
both,48 an incompatibility between the offices exists,
further warranting the declaration of Agra’s designation
as the Acting Secretary of Justice, concurrently with his
designation as the Acting Solicitor General, to be void
for being in violation of the express provisions of the
Constitution.
3.
Effect of declaration of unconstitutionality of
Agra’s concurrent appointment; the de
facto officer doctrine
In view of the application of the stricter prohibition
under Section 13, supra, Agra did not validly hold the
position of Acting Secretary of Justice concurrently with
his holding of the position of Acting Solicitor General.
Accordingly, he was not to be considered as a de
jure officer for the entire period of his tenure as the
Acting Secretary of Justice. A de jure officer is one who
is deemed, in all respects, legally appointed and
qualified and whose term of office has not expired. 49
That notwithstanding, Agra was a de facto officer
during his tenure as Acting Secretary of Justice. In Civil
Liberties Union v. Executive Secretary,50 the Court
said:
During their tenure in the questioned positions,
respondents may be considered de facto officers and
as such entitled to emoluments for actual services
rendered. It has been held that "in cases where there
is no de jure, officer, a de facto officer, who, in good
faith has had possession of the office and has
discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it
seems unjust that the public should benefit by the
services of an officer de facto and then be freed from
all liability to pay any one for such services. Any per
diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in
the questioned positions may therefore be retained by
them.
A de facto officer is one who derives his appointment
from one having colorable authority to appoint, if the
office is an appointive office, and whose appointment
is valid on its face.51 He may also be one who is in
possession of an office, and is discharging its duties
under color of authority, by which is meant authority
derived from an appointment, however irregular or
informal, so that the incumbent is not a mere
volunteer.52 Consequently, the acts of the de
facto officer are just as valid for all purposes as those
of a de jure officer, in so far as the public or third
persons who are interested therein are concerned. 53
In order to be clear, therefore, the Court holds that all
official actions of Agra as a de facto Acting Secretary
of Justice, assuming that was his later designation,
were presumed valid, binding and effective as if he was
the officer legally appointed and qualified for the
office. 54 This clarification is necessary in order to
protect the sanctity of the dealings by the public with
persons whose ostensible authority emanates from the
State. 55 Agra's official actions covered by this
claritlcation extend to but are not limited to the
promulgation of resolutions on petitions for review filed
in the Department of Justice, and the issuance of
department orders, memoranda and circulars relative
to the prosecution of criminal cases.
WHEREFORE, the Comi GRANTS the petition
for certiorari and prohibition; ANNULS AND
VOIDS the designation of Hon. Alberto C. Agra as the
Acting Secretary of Justice in a concurrent capacity
with his position as the Acting Solicitor General for
being unconstitutional and violative of Section 13,
Article VII of the 1987 Constitution;
and DECLARES that l-Ion. Alberto C. Agra was a de
facto officer during his tenure as Acting Secretary of
Justice.
No pronouncement on costs of suit.
SO ORDERED.\
petitioner; G.R. No. 209138 with Irma A. Villanueva
(Villanueva), who was appointed Administrator for
Visayas of the Board of Administrators of the
Cooperative Development Authority (CDA), and
Francisca B. Rosquita (Rosquita), who was appointed
G.R. No. 203372 June 16, 2015 Commissioner of the National Commission of
ATTY. CHELOY E. VELICARIA- Indigenous Peoples (NCIP), as petitioners; and G.R.
GARAFIL, Petitioner, No. 212030 with Atty. Eddie U. Tamondong (Atty.
vs.
Tamondong), who was appointed member of the Board
OFFICE OF THE PRESIDENT and HON. SOLICITOR of Directors of the Subic Bay Metropolitan Authority
GENERAL JOSE ANSELMO I. CADIZ, Respondents.
(SBMA), as petitioner. All petitions question the
x-----------------------x constitutionality of Executive Order No. 2 (EO 2) for
G.R. No. 206290
being inconsistent with Section 15, Article VII of the
ATTY. DINDO G. VENTURANZA, Petitioner, 1987 Constitution.
vs.
OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in
her capacity as the Secretary of the Department of Petitioners seek the :reversal of the separate Decisions
Justice, CLARO A. ARELLANO, in his capacity as of the Court of Appeals (CA) that dismissed their
the Prosecutor General, and RICHARD ANTHONY petitions and upheld the constitutionality of EO 2. G.R.
D. FADULLON, in his capacity as the Officer-in- No. 203372 filed by Atty. Velicaria-Garafil is a Petition
Charge of the Office of the City Prosecutor of for Review on Certiorari,1 assailing the Decision2 dated
Quezon City,Respondents. 31 August 2012 of the CA in CA-G.R. SP No. 123662.
x-----------------------x G.R. No. 206290 filed by Atty. Venturanza is a Petition
G.R. No. 209138 for Review on Certiorari,3 assailing the Decision4 dated
IRMA A. VILLANUEVA and FRANCISCA B. 31 August 2012 and Resolution5 dated 12 March 2013
ROSQUITA, Petitioners, of the CA in CA-G.R. SP No. 123659. G.R. No. 209138
vs. filed by Villanueva and Rosquita is a Petition for
COURT OF APPEALS and THE OFFICE OF THE Certiorari,6 seeking to nullify the Decision7 dated 28
PRESIDENT, Respondents. August 2013 of the CA in CA-G.R. SP Nos. 123662,
123663, and 123664.8 Villanueva and Rosquita filed a
Petition-in-Intervention in the consolidated cases
x-----------------------x before the CA. G.R. No. 212030 is a Petition for Review
on Certiorari,9 assailing the Decision10 dated 31
G.R. No. 212030 August 2012 of the CA in CAG.R. SP No. 123664 and
Resolution11 dated 7 April 2014 of the CA in CAG.R.
EDDIE U. TAMONDONG, Petitioner, SP Nos. 123662, 123663, and 123664.12
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, Facts of the Cases
JR., Respondent.
Prior to the conduct of the May 2010 elections, then
DECISION President Gloria Macapagal-Arroyo (President
Macapagal-Arroyo) issued more than 800
CARPIO, J.: appointments to various positions in several
government offices.
The present consolidated cases involve four petitions:
G.R. No. 203372 with Atty. Cheloy E. Velicaria-Garafil The ban on midnight appointments in Section 15,
(Atty. Velicaria-Garafil), who was appointed State Article VII of the 1987 Constitution reads:
Solicitor II at the Office of the Solicitor General (OSG),
as petitioner; G.R. No. 206290 with Atty. Dindo G. Two months immediately before the next presidential
Venturanza (Atty. Venturanza), who was appointed elections and up to the end of his term, a President or
Prosecutor IV (City Prosecutor) of Quezon City, as Acting President shall not make appointments, except
temporary appointments to executive positions when
continued vacancies therein will prejudice public
service or endanger public safety.
Thus, for purposes of the 2010 elections, 10 March
2010 was the cutoff date for valid appointments and the
next day, 11 March 2010, was the start of the ban on
midnight appointments. Section 15, Article VII of the
1987 Constitution 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 petitioners claim
that their appointments fall under this exception.
Appointments
G.R. No. 203372
The paper evidencing Atty. Velicaria-Garafil's
appointment as State Solicitor II at the OSG was dated
5 March 2010.13 There was a transmittal letter dated 8
March 2010 of the appointment paper from the Office
of the President (OP), but this transmittal letter was
received by the Malacañang Records Office (MRO)
only on 13 May 2010. There was no indication as to the
OSG's date of receipt of the appointment paper. On 19
March 2010, the OSG's Human Resources
Department called up Atty. Velicaria-Garafil to
schedule her oath-taking. Atty. Velicaria-Garafil took
her oath of office as State Solicitor II on 22 March 2010
and assumed her position on 6 April 2010.
G.R. No.
G.R. No. 206290
203372
(Atty. Velicaria-
The paper evidencing Atty. Venturanza's appointment
as Prosecutor IV (City Prosecutor) of Garafil)
Quezon City was
dated 23 February 2010.14 It is apparent, however, that
206290
it was only on 12 March 2010 that the OP, in a letter
(Atty.
dated 9 March 2010, transmitted Atty. Venturanza's
Venturanza)
appointment paper to then Department of Justice
(DOJ) Secretary Alberto C. Agra.15209138 During the period
between 23 February and 12 March 2010, Atty. 3 March 2010
(Villanueva)
Venturanza, upon verbal advice from Malacañang of
his promotion but without an official 209138copy of his
appointment paper, secured clearances (Rosquita)
from the Civil
Service Commission (CSC),16 Sandiganbayan,17 and
the DOJ.18 Atty. Venturanza took his 212030
oath of office on
15 March 2010, and assumed office(Atty. on the same day. 1 March 2010
Tamondong)
G.R. No. 209138
The paper evidencing Villanueva's appointment as
Administrator for Visayas of the Board of
Administrators of the CDA was dated 3 March
2010.19 There was no transmittal letter of the
appointment paper from the OP. Villanueva took her
oath of office on 13 April 2010.
The paper evidencing Rosquita's appointment as
Commissioner, representing 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 OP. Rosquita took
her oath of office on 18 March 2010. G.R. No. 212030
The paper evidencing Atty. Tamondong's appointment
as member, representing the private sector, of the
SBMA Board of Directors was dated 1 March
2010.21 Atty. Tamondong admitted that the
appointment paper was received by the Office of the
SBMA Chair on 25 March 201022 and that he took his
oath of 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
To summarize, the pertinent dates for each petitioner
are as follows:
Date of Date of Date of Receipt Date of Oath
Appointment Letter Transmittal Letter by MRO
5 March 2010 8 March 2010 13 May 2010
23 February 2010 9 March 2010 12 March 2010
4 May 2010
5 March 2010 13 May 2010
Issuance of EO 2
On 30 June 2010, President Benigno S. Aquino III
(President Aquino) took his oath of office as President
of the Republic of the Philippines. On 30 July 2010,
President Aquino issued EO 2 recalling, withdrawing,
and revoking appointments issued by President
Macapagal-Arroyo which violated the constitutional
ban on midnight appointments.
The entirety of EO 2 reads:
EXECUTIVE ORDER NO. 2
RECALLING, WITHDRAWING, AND REVOKING
APPOINTMENTS ISSUED BY THE PREVIOUS
ADMINISTRATION IN VIOLATION OF THE
CONSTITUTIONAL BAN ON MIDNIGHT
APPOINTMENTS, AND FOR OTHER PURPOSES.
WHEREAS, Sec. 15, Article VII of the 1987
Constitution provides that "Two 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
therein will prejudice public service or endanger public
safety."; WHEREAS, in the case of "In re:
Appointments dated March 30, 1998 of Hon. Mateo
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.
Assumption of
of Office 98-5-01-SC
Office Nov. 9, 1998), the Supreme Court
interpreted this provision to mean that the President is
neither required to make appointments nor allowed to
22 Marchdo 6soApril
during the two months immediately before the
2010
2010 next presidential elections and up to the end of her
term. The only known exceptions to this prohibition are
(1) temporary appointments in the executive positions
15 March
when15 continued
March 2010 vacancies will prejudice public service
2010
or endanger public safety and in the light of the recent
Supreme Court decision in the case of De Castro, et al.
13 April 2010vs. JBC and PGMA, G.R. No. 191002, 17 March 2010,
(2) appointments to the Judiciary;
18 March
2010 WHEREAS, Section 261 of the Omnibus Election Code
provides that:
25 March
2010 and
6 July 2010
"Section 261. Prohibited Acts.-The following shall be
guilty of an election offense:
(g) Appointments of new employees,
creation of new position, promotion,
or giving salary increases. - During
the period of forty-five days before a
regular election and thirty days
before a special election.
(1) Any head, official or appointing
officer of a government office,
agency or instrumentality, whether
national or local, including
government-owned or controlled
corporations, who appoints or hires
any new employee, whether
provisional, temporary or casual, or
creates and fills any new position,
except upon prior authority to the
Commission. The Commission shall
not grant the authority sought unless
it is satisfied that the position to be
filled is essential to the proper
functioning of the office or agency
concerned, and that the position
shall not be filled in a manner that
may influence the election.
As an exception to the foregoing
provisions, a new employee may be
appointed in the case of urgent
need:
Provided, however, that notice of the
appointment shall be given to the
Commission within three days from
the date of the appointment. Any
appointment or hiring in violation of
this provision shall be null and void.
(2) Any government official who
promotes or gives any increase of
salary or remuneration or privilege to
any government official or
employee, including those in
government-owned or controlled
corporations.";
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 A: We cannot say that for sure. That is why it is very
statistics I prepared after we counted the unusual that the person who received these
appointments, as well as the graph thereof. documents did not indicate the date and time when it
was received because these details are very
xxxx important.53
Q: Out of the more than 800 appointees made in March The MRO's exercise of its mandate does not prohibit
2010, how many appointment papers and transmittal the President or the Executive Secretary from giving
letters were released through the MRO? 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
A: Only 133 appointment papers were released paper is lost or the appointment is questioned. The
through the MRO. appointee would then have to prove that the
appointment paper was directly given to him.
Q: In some of these transmittal letters and appointment
papers which were not released through the MRO but Dimaandal's counsel made this manifestation about
apparently through the OES, there were portions on petitioners' appointment papers and their transmittal:
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 Your Honors, we respectfully request for the following
regular or irregular? markings to be made:
A: It is highly irregular. 1. A) The Transmittal Letter pertinent to the
appointment of petitioner DINDO
VENTURANZA dated March 9, 2010 as
Q: Why do you say so? Exhibit "2-F" for the respondents;
A: Usually, if the document released by the MRO, the B) The delivery receipt attached in
delivery receipt attached to the transmittal letter is filled front of the letter bearing the date
out completely because the dates when the original March 12, 2010 as Exhibit "2-F-l";
appointment papers were actually received are very
material. It is a standard operating procedure for the
MRO personnel to ask the person receiving the C) The Appointment Paper of
DINDO VENTURANZA dated
documents to write his/her name, his signature, and
the date and time when he/she received it. February 23, 2010 as Exhibit "2-G"
for the respondents;
Q: So, insofar as these transmittal letters and
appointment papers apparently released by the OES 2. A) The Transmittal Letter pertinent to the
appointment of CHELOY E. VELICARIA-
are concerned, what is the actual date when the
agency or the appointee concerned received it? 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-
A: I cannot answer. There is no way of knowing when 4," "2-H-5," and "2-H-6" respectively for the
they were actually received because the date and time respondents;
were deliberately or inadvertently left blank.
i. The portion with the name
Q: Can we say that the date appearing on the face of "CHELOY
the transmittal letters or the appointment papers is the VELICARIAGARAFIL" as
actual date when it was released by the OES? "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
E.
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 complete involves several steps.
First, comes the nomination by the President. Then to
make that nomination valid and permanent, the
Commission on Appointments of the Legislature has to
confirm said nomination. The last step is the
acceptance thereof by the appointee by his assumption
of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are
acts of the Executive and Legislative departments of
the Government. But the last necessary step to make
the appointment complete and effective rests solely
with the appointee himself. He may or he may not
accept the appointment or nomination. As held in the
case of Borromeo vs. Mariano, 41 Phil. 327, "there is
no power in this country which can compel a man to
accept an office." Consequently, since Lacson has
declined to accept his appointment as provincial fiscal
of Tarlac and no one can compel him to do so, then he
continues as provincial fiscal of Negros Oriental and no
vacancy in said office was created, unless Lacson had
been lawfully removed as such fiscal of Negros
Oriental.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 Petitioners have failed to raise any valid ground for the
appointment. Assuming office and taking the oath Court to declare EO 2, or any part of it, unconstitutional.
amount to acceptance of the appointment.60 An oath of Consequently, EO 2 remains valid and constitutional.
office is a qualifying requirement for a public office, a
prerequisite to the full investiture of the office.61 WHEREFORE, the petitions in G.R. Nos. 203372,
206290, and 212030 are DENIED, and the petition in
Javier v. Reyes62 is instructive in showing how G.R. No. 209138 is DISMISSED. The appointments of
acceptance is indispensable to complete an petitioners Atty. Cheloy E. Velicaria-Garafil (G.R. No.
appointment. On 7 November 1967, petitioner Isidro M. 203372), Atty. Dindo G. Venturanza (G.R. No.
Javier (Javier) was appointed by then Mayor Victorino 206290), Irma A. Villanueva, and Francisca B.
B. Aldaba as the Chief of Police of Malolos, Bulacan. Rosquita (G.R. No. 209138), and Atty. Eddie U.
The Municipal Council confirmed and approved Tamondong (G.R. No. 212030) are declared VOID. We
Javier's appointment on the same date. Javier took his DECLARE that Executive Order No. 2 dated 30 July
oath of office on 8 November 1967, and subsequently 2010 is VALID and CONSTITUTIONAL.
discharged the rights, prerogatives, and duties of the
office. On 3 January 1968, while the approval of SO ORDERED.
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.