Republic vs. Sereno (Calida vs.
Sereno) (2018) Statement of Assets, Liabilities and Net Worth (SALN) for
Summary Cases:
Subject: Intervention is an ancillary remedy restricted in
purpose and in time; Remedy of quo warranto is vested in the
people, and not in any private individual or group; No basis for
the Associate Justices of the Supreme Court to inhibit in the
case; Voluntary inhibition; Supreme Court has original
jurisdiction over an action for quo warranto; The instant
petition is a case of transcendental importance; The origin,
nature and purpose of impeachment and quo warranto are
materially different; Quo warranto and impeachment can
proceed independently and simultaneously; No forum
shopping; Impeachment is not an exclusive remedy by which
an invalidly appointed or invalidly elected impeachable official
may be removed from office; The Supreme Court's exercise
of its jurisdiction over a quo warranto petition is not violative
of the doctrine of separation of powers; Judicial power versus
Judicial restraint and fear of a constitutional crisis; Seeking
affirmative relief from the Court is tantamount to voluntary
appearance; Prescription does not lie against the State;
Circumstances obtaining in this case preclude the application
of the prescriptive period; Act No. 3326 is inapplicable to the
instant petition; The Court's supervisory authority over the
JBC includes ensuring that the JBC complies with its own
rules; Qualifications under the Constitution cannot be waived
or bargained away by the JBC; Compliance with the
Constitutional and statutory requirement of filing of SALN
intimately relates to a person's integrity; Violation of SALN
obligation is malum prohibitum and not malum in se; Burden
of proof in a quo warranto proceeding; Defenses of Sereno;
Sereno failed to qualify for nomination pursuant to the JBC
rules; Sereno's failure to submit to the JBC her SALNs for
several years means that her integrity was not established at
the time of her application; Sereno's disposition to commit
deliberate acts and omissions demonstrating dishonesty and
lack of forthrightness is discordant with any claim of integrity;
Sereno's ineligibility for lack of proven integrity cannot be
cured by her nomination and subsequent appointment as
Chief Justice; Sereno is a de facto officer removable through
quo warranto; Guidelines for the Bench, the Bar and the JBC;
Blatant disregard and open defiance to the Sub Judice Rule
Facts:
In this for petition quo warranto against the incumbent Chief
Justice, the Republic entreats this Court to declare Maria
Lourdes Sereno (respondent) ineligible to hold the highest
post in the Judiciary for failing to regularly disclose her assets,
liabilities and net worth as a member of the career service
prior to her appointment as an Associate Justice, and later as
Chief Justice, of the Supreme Court, in violation of the
Constitution, the Anti-Graft Law, and the Code of Conduct and
Ethical Standards for Public Officials and Employees. The
Republic seeks to declare as void respondent Sereno's
appointment as Chief Justice of the Supreme Court and to
oust and altogether exclude respondent therefrom.
From November 1986 to June 1, 2006, or spanning a period
of 20 years, respondent served as a member of the faculty of
the University of the Philippines-College of Law, until her
resignation therefrom. As a regular faculty member,
respondent was paid by the month by U.P.
While being employed at the U.P. College of Law, or from
October 2003 to 2006, respondent Sereno was concurrently
employed as legal counsel of the Republic in two international
arbitrations (PIATCO cases).
Despite being employed by the UP-College of Law from 1986-
2006, the record of the U.P. HRDO only contains Sereno's
1985, 1989, 1990, 1991, 1993, 1994,1995,1996,1997, 1998
and 2002— or a total of 11 SALNS for her 20 year period of
service.
Similarly, despite having been employed as legal counsel of
various government agencies from 2003 to 2009, there is
likewise no showing that she filed her SALNs for these years,
except for the SALN ending December 31, 2009 which was
unsubscribed and filed before the Office of the Clerk of Court
only on June 22, 2012.
Sereno submitted her application for the position of Associate
Justice of the Supreme Court in July 2010. In support of her
application as Associate Justice, she submitted to the Office
of Recruitment Selection and Nomination (ORSN) of the
Judicial and Bar Council (JBC) her SALN for the year 2006.
This SALN for 2006 bears no stamp received by the U.P.
HRDO and was signed on July 27, 2010. According to Sereno,
the JBC considered her nomination for the position of
Associate Justice as that of a private practitioner and not as a
government employee.
A month after, or on August 13, 2010, Sereno was appointed
by then President Benigno C. Aquino III as Associate Justice.
When the position of the Chief Justice was declared vacant in
2012, the JBC En Banc required the incumbent Justices to
submit, among other requirements, all previous SALNs (up to
31 December 2011).
On July 20, 2012, the JBC in its Special En Banc Meeting,
deliberated on the candidates for the position of Chief Justice
with incomplete documentary requirements. It was noted
during the meeting that Justice Sereno had not submitted her
SALNs for a period of ten (10) years, that is, from 1986 to 2006.
The JBC En Banc further agreed that the candidates who fail
to complete the requirements are to be excluded from the list
of candidates to be interviewed and considered for nomination,
unless they would be included if in the determination of the
Execom he or she has substantially complied.
The JBC then proceeded to interview the candidates,
including Justice Sereno who was interviewed on July 27,
2012. She was listed as applicant No. 14 with an opposite
annotation that she had "COMPLETE REQUIREMENTS" and
a note stating "Letter 7/23/12 - considering that her
government records in the academe are more than 15 years
old, it is reasonable to consider it infeasible to retrieve all those
files."
On August 24, 2012, Justice Sereno was appointed by then
President Aquino III as Chief Justice of the Supreme Court.
On August 30, 2017, or five years after her appointment as
Chief Justice, an impeachment complaint was filed by Atty.
Larry Gadon against Sereno with the House Committee on
Justice for culpable violation of the Constitution, corruption,
high crimes, and betrayal of public trust. The complaint also
alleged that respondent failed to make truthful declarations in
her SALNs.
The impeachment complaint was endorsed by several
members of the House and, thereafter, was found to be
sufficient in form and substance. The respondent filed her
answer to the impeachment complaint. During the hearings
conducted by the House Committee on Justice, Justice
Peralta claimed that during the JBC deliberations in 2012, he
was not made aware that Sereno submitted incomplete
SALNs.

In the present petition, the Republic, through the OSG
(Solicitor General Jose Calida), claims that an action for quo
warranto is the proper remedy to question the validity of
respondent's appointment. It alleges that the instant petition is
seasonably filed within the one-year reglementary period
under Section 11, Rule 66, 63 of the Rules of Court since
respondent's transgressions only came to light during the
proceedings of the House Committee on Justice on the
allegations of the impeachment complaint filed against her.
Alternatively, the Republic claims that it has an imprescriptible
right to bring a quo warranto petition under the maxim nullum
tempus occurit regi.
The Republic argues that quo warranto may be resorted to
even against impeachable officers and that Sereno's
assumption of the position as Chief Justice under the color of
an executive appointment is a
public wrong correctible by quo warranto.
Held:
I. Preliminary Issues
Intervention is an ancillary remedy restricted in purpose
and in time
Intervention is a remedy by which a third party, not originally
impleaded in the proceedings, becomes a litigant therein for a
certain purpose: to enable the third party to protect or
preserve a right or interest that may be affected by those
proceedings.
Nevertheless, the remedy of intervention is not a matter of
right but rests on the sound discretion of the court upon
compliance with the first requirement on legal interest and the
second requirement that no delay and prejudice should result
as spelled out under Section 1, Rule 19 of the Rules of Court.
This Court has ruled that such interest must be of a direct and
immediate character so that the intervenor will either gain or
lose by the direct legal operation of the judgment. The interest
must be actual and material, a concern which is more than
mere curiosity, or academic or sentimental desire; it must not
be indirect and contingent, indirect and remote, conjectural,
consequential or collateral.
Each of the movant-intervenors in this case seek to intervene
as citizens and taxpayers, whose claimed interest to justify
their intervention is their "sense of patriotism and their
common desire to protect and uphold the Philippine
Constitution". The movant-intervenors further assert a "public
right" to intervene in the instant case by virtue of its
"transcendental importance for the Filipino people as a whole".
Apart from such naked allegations, movant-intervenors failed
to establish to the Court's satisfaction the required legal
interest. Movant-intervenors' sentiments, no matter how noble,
do not, in any way, come within the purview of the concept of
"legal interest" contemplated under the Rules to justify the
allowance of intervention.
Even the IBP's assertion of their "fundamental duty to uphold
the Constitution, advocate for the rule of law, and safeguard
the administration of justice", being the official organization of
all Philippine lawyers, will not suffice. Admittedly, their interest
is merely out of "sentimental desire" to uphold the rule of law.
Senators De Lima and Trillanes' claimed legal interest is
mainly grounded upon their would-be participation in the
impeachment trial as Senators-judges if the articles of
impeachment will be filed before the Senate as the
impeachment court. Nevertheless, the fact remains that as of
the moment, such interest is still contingent on the filing of the
articles of impeachment before the Senate.
Remedy of quo warranto is vested in the people, and not in
any private individual or group.
The remedy of quo warranto is vested in the people, and not
in any private individual or group, because disputes over title
to public office are viewed as a public question of
governmental legitimacy and not merely a private quarrel
among rival claimants.
The only time that an individual, in his own name, may bring
an action for quo warranto is when such individual has a claim
over the position in question. In this case, the movants-
intervenors are neither individuals claiming to be entitled to
the questioned position nor are they the ones charged with the
usurpation thereof.
No basis for the Associate Justices of the Supreme Court
to inhibit in the case.
The right of a party to seek the inhibition or disqualification of
a judge who does not appear to be wholly free, disinterested,
impartial and independent in handling the case must be
balanced with the latter's sacred duty to decide cases without
fear of repression. The movant must therefore prove the
ground of bias and prejudice by clear and convincing evidence
to disqualify a judge from participating in a particular trial.
Bias and prejudice, to be considered valid reasons for the
voluntary inhibition of judges, must be proved with clear and
convincing evidence. Bare allegations of partiality and
prejudgment will not suffice. These cannot be presumed,
especially if weighed against the sacred obligation of judges
whose oaths of office require them to administer justice
without respect to person and to do equal right to the poor and
the rich.
The Court has consequently counseled that no Judge or
Justice who is not legally disqualified should evade the duty
and responsibility to sit in the adjudication of any controversy
without committing a dereliction of duty for which he or she
may be held accountable.
(a) Testifying on the impeachment case
Justice Sereno prays for· the inhibition of Associate Justices
Lucas P. Bersamin, Diosdado M. Peralta, Francis H.
Jardeleza, Noel Gimenez Tijam, Teresita J. LeonardoDe
Castro and Samuel R. Martires fundamentally on the ground
of actual bias for having commonly testified before the House
Committee on Justice on the impeachment case.
In this case, it does not appear that there are grounds for
compulsory inhibition. As to voluntary inhibition, the mere fact
that some of the Associate Justices participated in the
hearings of the Committee on Justice determining probable
cause for the impeachment of respondent does not make
them disqualified to hear the instant petition. Their
appearance thereat was in deference to the House of
Representatives whose constitutional duty was to investigate
the impeachment complaint. Their appearance was with the
prior consent of the Supreme Court En Banc and they
faithfully observed the parameters that the Court set for the
purpose. Their statements in the hearing, should be carefully
viewed within this context, and should not be hastily
interpreted as an adverse attack against respondent.
The Justices, including Justice Tijam, who appeared during
the House Committee on Justice hearings, refused to form
any conclusion or to answer the uniform query as to whether
respondent's acts constitute impeachable offenses, as it was
not theirs to decide but a function properly belonging to the
Senate, sitting as an impeachment court.104 Evidently, no
bias and prejudice on the part of the Justices could be inferred
therein.
(b) Justice Tijam's statement in the Manila Times article
Sereno seeks the inhibition of Justice Tijam based on the
latter's statement as quoted in a Manila Times article to the
effect that if Sereno continues to ignore and to refuse to
participate in the impeachment process, she is clearly liable
for culpable violation of the Constitution.
A circumspect reading of Justice Tijam's statements in the
Manila Times article reveals that the manifest intent of the
statements was only to prod respondent to observe and
respect the constitutional process of impeachment, and to
exemplify the ideals of public accountability. Sereno
conveniently and casually invoked only a portion of the article
which suited her objective of imputing bias against Justice
Tijam.
(c) Wearing a red tie
As to the act of wearing a red tie which purportedly establishes
Justices Tijam and Bersamin's prejudice against her, the
argument is baseless and unfair. There is no basis, whether
in logic or in law, to establish such a connection. Absent
compelling proof to the contrary, the red piece of clothing was
merely coincidental and should not be deemed a sufficient
ground to disqualify them.
(d) Justice Bersamin's statements
Sereno's call for inhibition has been based on speculations, or
on distortions of the language, context and meaning of the
answers the Justices may have given as sworn witnesses in
the proceedings of the House Committee on Justice. Justice
Bersamin's statement that "Ang Supreme Court ay hindi po
maaring mag function kung isa ay diktador," is clearly a
hypothetical statement, an observation on what would the
Court be if any of its Members were to act dictatorially.
Likewise, the Court cannot ascribe bias in Justice Bersamin's
remark that he was offended by Sereno's attitude in ignoring
the collegiality of the Supreme Court when she withdrew the
Justices' "privilege" to recommend nominees to fill vacancies
in the Supreme Court. It would be presumptuous to equate
this statement to a personal resentment as Sereno regards it.
There has always been a high degree of professionalism
among the Members of the Court in both their personal and
official dealings with each other. It cannot also be denied that
the statement reflected a natural sentiment towards a decision
reached and imposed by a member of a collegial body without
consultation or consensus.
(e) Justice Peralta's testimony
Justice Peralta's testimony before the House Committee on
Justice also contradicts respondent's allegation that Justice
Peralta's apparent bias arose from his belief that respondent
caused the exclusion of his wife, Court of Appeals (CA)
Associate Justice Fernanda Lampas Peralta, from the list of
applications for the position of CA Presiding Justice. Justice
Peralta has made it clear during the February 12, 2018
Congressional hearing that he has already moved on from
said issue and that the purpose of his testimony was merely
to protect prospective applicants to the Judiciary.
Justice Peralta's testimony during the Congressional hearing
that "had (he) been informed of (the) letter dated July 23, 2012
and a certificate of clearance, (he) could have immediately
objected to the selection of the Chief Justice for voting
because this is a very clear deviation from existing rules that
if a member of the Judiciary ...would like to apply for Chief
Justice, then she or he is mandated to submit the SALNs," is
clearly a' hypothetical statement, which will not necessarily
result in the disqualification of Sereno from nomination. It was
also expressed in line with his functions as then Acting
Chairperson of the JBC, tasked with determining the
constitutional and statutory eligibility of applicants for the
position of Chief Justice. It bears stressing, too, that at the
time said statement was made, the petition for quo warranto
has not been filed; thus, such statement cannot amount to a
prejudgment of the case.
(f) Justice Martires' statements
As for Justice Martires' statements during the Oral Arguments
[i.e., “would you consider it a mental illness when a person
always invokes God as the source of his strength? The source
of his inspiration? The source of happiness? The source of
everything in life? Is that a mental illness.?”] this Court does
not view them as indication of actual bias or prejudice against
respondent. Contrary to Sereno's contentions, Justice
Martires has not suggested that she suffers from some mental
or psychological illness. At most, his questions and
statements were merely hypothetical in nature, which do not
even constitute as an opinion against respondent. Certainly,
to impute actual bias based on such a brief discourse with
respect to hypothetical matters is conjectural and highly
speculative. "Allegations and perceptions of bias from the
mere tenor and language of a judge is insufficient to show
prejudgment.
Voluntary inhibition
The prevailing rule allows challenged Justices to participate in
the deliberations on the matter of their disqualification.
Moreover, exclusion from the deliberations due to delicadeza
or sense of decency, partakes of a ground apt for a voluntary
inhibition. It bears to be reminded that voluntary inhibition,
leaves to the sound discretion of the judges concerned
whether to sit in a case for other just and valid reasons, with
only their conscience as guide. Indeed, the best person to
determine the propriety of sitting in a case rests with the
magistrate sought to be disqualified. Moreover, to compel the
remaining members to decide on the challenged member's
fitness to resolve the case is to give them authority to review
the propriety of acts of their colleagues, a scenario which can
undermine the independence of each of the members of the
High Court.
In the En Banc case of Jurado & Co. v. Hongkong Bank, the
Court elucidated that a challenge to the competency of a
judge may admit two constructions: first, the magistrate
decides for himself the question of his competency and when
he does so, his decision therein is conclusive and the other
Members of the Court have no voice in it; and second, the
challenged magistrate sits with the Court and decides the
challenge as a collegial body. It was in Jurado that the Court
adopted the second view as the proper approach when a
challenge is poised on the competency of a sitting magistrate,
that is, the Court, together with the challenged magistrate,
decides. Jurado further expressly excluded a possible third
construction wherein the Court decides the challenge but
without the participation of the challenged member on the
ground that such construction would place power on a party
to halt the proceedings by the simple expedient of challenging
a majority of the Justices. The Court sees no reason to deviate
from its standing practice of resolving competency challenges
as a collegial body without excluding the challenged Member
from participating therein.
II. Substantive Issues
Supreme Court has original jurisdiction over an action for
quo warranto
Section 7, Rule 66 of the Rules of Court provides that the
venue of an action for quo warranto , when commenced by
the Solicitor General, is either the Regional Trial Court in the
City of Manila, in the Court of Appeals, or in the Supreme
Court.
While the hierarchy of courts serves as a general determinant
of the appropriate forum for petitions for the extraordinary
writs, a direct invocation of the Supreme Court's original
jurisdiction to issue such writs is allowed when there are
special and important reasons therefor, clearly and
specifically set out in the petition
In the instant case, direct resort to the Court is justified
considering that the action for quo warranto questions the
qualification of no less than a Member of the Court. The issue
of whether a person usurps, intrudes into, or unlawfully holds
or exercises a public office is a matter of public concern over
which the government takes special interest as it obviously
cannot allow an intruder or impostor to occupy a public
position.
The instant petition is a case of transcendental
importance
While traditionally, the principle of transcendental importance
applies as an exception to the rule requiring locus standi
before the Courts can exercise its judicial power of review, the
same principle nevertheless, finds application in this case as
it is without doubt that the State maintains an interest on the
issue of the legality of the Chief Justice's appointment.
The instant petition is one of first impression and of paramount
importance to the public in the sense that the qualification,
eligibility and appointment of an incumbent Chief Justice, the
highest official of the Judiciary, are being scrutinized through
an action for quo warranto. The Court's action on the present
petition has far-reaching implications, and it is paramount that
the Court make definitive pronouncements on the issues
herein presented for the guidance of the bench, bar, and the
public in future analogous cases.
The origin, nature and purpose of impeachment and quo
warranto are materially different
Sereno argues that as a member of the Supreme Court, she
is an impeachable officer. As such, a quo warranto proceeding,
which may result in her ouster, cannot be lodged against her,
especially when there is an impending impeachment case
against her. This argument is misplaced.
While both impeachment and quo warranto may result in the
ouster of the public official, the two proceedings materially
differ. At its most basic, impeachment proceedings are
political in nature, while an action for quo warranto is judicial
or a proceeding traditionally lodged in the courts.
Impeachment is a proceeding exercised by the legislative, as
representatives of the sovereign, to vindicate the breach of the
trust reposed by the people in the hands of the public officer
by determining the public officer's fitness to stay in the office.
Meanwhile, an action for quo warranto , involves a judicial
determination of the eligibility or validity of the election or
appointment of a public official based on predetermined rules.
Quo warranto and impeachment can proceed
independently and simultaneously
Quo warranto and impeachment may proceed independently
of each other as these remedies are distinct as to (1)
jurisdiction (2) grounds, (3) applicable rules pertaining to
initiation, filing and dismissal, and (4) limitations.
A quo warranto proceeding is the proper legal remedy to
determine the right or title to the contested public office or to
oust the holder from its enjoyment. In quo warranto
proceedings referring to offices filled by election, what is to be
determined is the eligibility of the candidates elected, while in
quo warranto proceedings referring to offices filled by
appointment, what is determined is the legality of the
appointment.
The title to a public office may not be contested collaterally but
only directly, by quo warranto proceedings. In the past, the
Court held that title to public office cannot be assailed even
through mandamus or a motion to annul or set aside order.
That quo warranto is the proper legal vehicle to directly attack
title to public office likewise precludes the filing of a petition for
prohibition for purposes of inquiring into the validity of the
appointment of a public officer.
An action for quo warranto may be commenced by the
Solicitor General or a public prosecutor, or by any person
claiming to be entitled to the public office or position usurped
or unlawfully held or exercised by another. Nonetheless, the
Solicitor General, in the exercise of sound discretion, may
suspend or turn down the institution of an action for quo
warranto where there are just and valid reasons. The Solicitor
General is given permissible latitude within his legal authority
in actions for quo warranto ,circumscribed only by the national
interest and the government policy on the matter at hand.
The remedies available in a quo warranto judgment do not
include correction or reversal of acts taken under the
ostensible authority of an office or franchise. Judgment is
limited to ouster or forfeiture and may not be imposed
retroactively upon prior exercise of official or corporate duties.
Quo warranto and impeachment are, thus, not mutually
exclusive remedies and may even proceed simultaneously.
The existence of other remedies against the usurper does not
prevent the State from
commencing a quo warranto proceeding.
No forum shopping
Sereno points out that the inclusion of the matter on tax fraud
is already covered by Article I of the Articles of Impeachment.
Hence, she argues that the petition should be dismissed on
the ground of forum shopping.
Forum shopping is the act of a litigant who repetitively availed
of several judicial remedies in different courts, simultaneously
or successively, all substantially founded on the same
transactions and the same essential facts and circumstances,
and all raising substantially the same issues, either pending in
or already resolved adversely by some other court, to increase
his chances of obtaining a favorable decision if not in one
court, then in another.
To determine whether a party violated the rule against forum
shopping, the most important factor to ask is whether the
elements of litis peridentia are present, or whether a final
judgment in one case will amount to res judicata in another;
otherwise stated, the test for determining forum shopping is
whether in the two (or more) cases pending, there is identity
of parties, rights or causes of action, and reliefs sought.
What is critical is the vexation brought upon the courts and the
litigants by a party who asks different courts to rule on the
same or related causes and grant the same or substantially
the same reliefs and in the process creates the possibility of
conflicting decisions being rendered by the different fora upon
the same issues
Guided by the foregoing, there can be no forum shopping in
this case despite the pendency of the impeachment
proceedings before the House of Representatives.
(a) The causes of action in the two proceedings are
unequivocally different. The crux of the controversy in this quo
warranto proceedings is the determination of whether or not
Sereno legally holds the Chief Justice position to be
considered as an impeachable officer in the first place. On the
other hand, impeachment is for Sereno's prosecution for
certain impeachable offenses. To be sure, Sereno is not being
prosecuted herein for such impeachable offenses
enumerated in the Articles of Impeachment. Simply put, while
Sereno's title to hold a public office is the issue in quo
warranto proceedings, impeachment necessarily
presupposes that Sereno legally holds the public office and
thus, is an impeachable officer, the only issue being whether
or not she committed impeachable offenses to warrant her
removal from office.
(b) The reliefs sought in the two proceedings are different.
Respondent in a quo warranto proceeding shall be adjudged
to cease from holding a public office, which he/she is ineligible
to hold. On the other hand, in impeachment, a conviction for
the charges of impeachable offenses shall result to the
removal of the respondent from the public office that he/she is
legally holding. It is not legally possible to impeach or remove
a person from an office that he/she, in the first place, does not
and cannot legally hold or occupy.
Indeed, the "impeachment proceeding" before the House
Committee on Justice is not the "impeachment case" proper.
The impeachment case is yet to be initiated by the filing of the
Articles of Impeachment before the Senate. The House
Committee on Justice's determination of probable cause on
whether the impeachment against the respondent should go
on trial before the Senate is akin to the prosecutor's
determination of probable cause during the preliminary
investigation in a criminal case. During the preliminary
investigation before the prosecutor, there is no pending case
to speak of yet. At the moment, there is no pending
impeachment case against Sereno Thus, at the time of the
filing of this petition, there is no pending impeachment case
that would bar the quo warrranto petition on the ground of
forum shopping.
In fine, forum shopping and litis pendentia are not present and
a final decision in one will not strictly constitute as res judicata
to the other. A judgment in a quo warranto case determines
Sereno's constitutional or legal authority to perform any act in,
or exercise any function of the office to which she lays claim;
meanwhile a judgment in an impeachment proceeding pertain
to her "fitness for public office.
Impeachment is not an exclusive remedy by which an
invalidly appointed or invalidly elected impeachable
official may be removed from office
Sereno claims that she can be removed from office only by
impeachment based on the Court's ruling in Lecaroz v.
Sandiganbayan, Cuenca v. Fernan, In Re Gonzales, Jarque
v. Desierto, and Marcoleta v. Borra. The principle laid down in
said cases is to the effect that during their incumbency,
impeachable officers cannot be criminally prosecuted for an
offense that carries with it the penalty of removal, and if they
are required to be members of the Philippine Bar to qualify for
their positions, they cannot be charged with disbarment. The
proscription does not extend to actions assailing the public
officer's title or right to the office he or she occupies. The ruling
therefore cannot serve as authority to hold that a quo warranto
action can never be filed against an impeachable officer.
Even the PET Rules expressly provide for the remedy of either
an election protest or a petition for quo warranto to question
the eligibility of the President and the Vice-President, both of
whom are impeachable officers. To sustain respondent's
position is to render election protests under the PET Rules
nugatory.
Further, the PET Rules provide that a petition for quo warranto
may be filed on the ground of ineligibility or disloyalty to the
Republic of the Philippines. Despite disloyalty to the Republic
being a crime against public order, defined and penalized
under the penal code, and thus may likewise be treated as
"other high crimes," constituting an impeachable offense, quo
warranto as a remedy to remove the erring President or Vice-
President is nevertheless made expressly available.
Furthermore, the language of Section 2, Article XI of the
Constitution does not foreclose a quo warranto action against
impeachable officers. The provision uses the permissive term
"may" which, in statutory construction, denotes discretion and
cannot be construed as having a mandatory effect. We have
consistently held that the term "may" is indicative of a mere
possibility, an opportunity or an option. An option to remove
by impeachment admits of an alternative mode of effecting the
removal.
That the enumeration of "impeachable offenses" is made
absolute, that is, only those enumerated offenses are treated
as grounds for impeachment, is not equivalent to saying that
the enumeration likewise purport to be a complete statement
of the causes of removal from office.
The courts should be able to inquire into the validity of
appointments even of impeachable officers. To hold otherwise
is to allow an absurd situation where the appointment of an
impeachable officer cannot be questioned even when, for
instance, he or she has been determined to be of foreign
nationality or, in offices where Bar membership is a
qualification, when he or she fraudulently represented to be a
member of the Bar. Unless such an officer commits any of the
grounds for impeachment and is actually impeached, he can
continue discharging the functions of his office even when he
is clearly disqualified from holding it. Such would result in
permitting unqualified and ineligible public officials to continue
occupying key positions, exercising sensitive sovereign
functions until they are successfully removed from office
through impeachment. This could not have been the intent of
the framers of the Constitution.
The Supreme Court's exercise of its jurisdiction over a
quo warranto petition is not violative of the doctrine of
separation of powers
The Court's assumption of jurisdiction over an action for quo
warranto involving a person who would otherwise be an
impeachable official had it not been for a disqualification, is
not violative of the core constitutional provision that
impeachment cases shall be exclusively tried and decided by
the Senate.
While impeachment concerns actions that make the officer
unfit to continue exercising his or her office, quo warranto
involves matters that render him or her ineligible to hold the
position to begin with. An action for quo warranto is unavailing
to determine whether or not an official has committed
misconduct in office nor is it the proper legal vehicle to
evaluate the person's performance in the office. Apropos, an
action for quo warranto does not try a person's culpability of
an impeachment offense.
In Divinagracia v. Consolidated Broadcasting System, Inc.,
the Court explained the court's authority to issue a writ of quo
warranto , as complementary to, and not violative of, the
doctrine of separation of powers. The Court's exercise of its
jurisdiction over quo warranto proceedings does not preclude
Congress from enforcing its own prerogative of determining
probable cause for impeachment,
Verily, the filing of the SALN is a Constitutional requirement,
and the transgression of which may, in the wisdom of the
impeachment court, be interpreted as constituting culpable
violation of the Constitution. But then, Sereno, unlike the
President, the Vice-President, Members of the Constitutional
Commissions, and the Ombudsman, apart from having to
comply with the Constitutional SALN requirement, also
answers to the unique Constitutional qualification of having to
be a person of proven competence, integrity, probity, and
independence - qualifications not expressly required by the
fundamental law for the other impeachable officers.
The failure to file her SALNs and to submit the same to the
JBC go into the very qualification of integrity. In other words,
when a Member of the Supreme Court transgresses the SALN
requirement prior to his or her appointment as such, he or she
commits a violation of the Constitution and belies his or her
qualification to hold the office. It is not therefore accurate to
place Members of the Supreme Court on absolutely equal
plane as that of the other impeachable officers, when more
stringent and burdensome requirements for qualification and
holding of office are expressly placed upon them.
Nevertheless, for the guidance of the bench and the bar, the
Court herein demarcates that an act or omission committed
prior to or at the time of appointment or election relating to an
official's qualifications to hold office as to render such
appointment or election invalid is properly the subject of a quo
warranto petition, provided that the requisites for the
commencement thereof are present. Contrariwise, acts or
omissions, even if it relates to the qualification of integrity,
being a continuing requirement but nonetheless committed
during the incumbency of a validly appointed and/or validly
elected official, cannot be the subject of a quo warranto
proceeding, but of something else, which may either be
impeachment if the public official concerned is impeachable
and the act or omission constitutes an impeachable offense,
or disciplinary, administrative or criminal action, if otherwise.
Judicial power versus Judicial restraint and fear of a
constitutional crisis
The Court's exercise of judicial review is not discretionary
upon the Court, nor dependent upon the whims and caprices
of any of its Members nor any of the parties. Even in cases
rendered moot and academic by supervening events, the
Court nevertheless exercised its power of review on the basis
of certain recognized exceptions. Neither is its exercise
circumscribed by fear of displeasing a co-equal branch of the
government. Instead, the Constitution makes it crystal clear
that the exercise of judicial power is a duty of the Court.
The question of whether or not respondent usurped a public
office is undoubtedly justiciable. To exercise restraint in
reviewing an impeachable officer's appointment is a clear
renunciation of a judicial duty. An outright dismissal of the
petition based on speculation that respondent will eventually
be tried on impeachment is a clear abdication of the Court's
duty to settle actual controversy squarely presented before it.
Neither does the possibility of the occurrence of a
constitutional crisis a reason for the Court to abandon its
positive constitutional duty to take cognizance of a case over
which it enjoys jurisdiction and is not otherwise legally
disqualified. A constitutional crisis may arise from a conflict
over the determination by the independent branches of
government of the nature, scope and extent of their respective
constitutional powers. Thus, there can be no constitutional
crisis where the Constitution itself provides the means and
bases for the resolution of the "conflict." To reiterate, the
Court's exercise of jurisdiction over an action for quo warranto
falls within the ambit of its judicial power to settle justiciable
issues or actual controversies involving rights which are
legally demandable and enforceable. In so doing, the Court is
not arrogating upon itself the Congress' power to determine
whether an impeachable officer may be removed by
impeachment or not, which is a political, rather than a judicial,
exercise
Seeking affirmative relief from the Court is tantamount to
voluntary appearance
Sereno cannot now be heard to deny the Court's jurisdiction
over her person even as she claims to be an impeachable
official because she in fact invoked and sought affirmative
relief from the Court by praying for the inhibition of several
Members of this Court and by moving that the case be heard
on Oral Arguments, albeit Ad Cautelam . By seeking
affirmative relief, she is deemed to have voluntarily submitted
to the jurisdiction of the Court. Following settled principles,
she cannot invoke the Court's jurisdiction on one hand to
secure affirmative relief, and then repudiate that same
jurisdiction after obtaining or failing to obtain such relief.
Prescription does not lie against the State
In Bumanlag v. Fernandez and Sec. of Justice, the Court held
that the one-year period fixed in then Section 16, Rule 68 of
the Rules of Court is a condition precedent to the existence of
the cause of action for quo warranto and that the inaction of
an officer for one year could be validly considered a waiver of
his right to file the same. However, the petitioners in this and
other cited cases were private individuals asserting their right
of office. The question is whether the one-year limitation is
equally applicable when the petitioner is not a mere private
individual pursuing a private interest, but the government itself
seeking relief for a public wrong and suing for public interest?
The answer is no.
Section 2, Rule 66 makes it compulsory for the Solicitor
General to commence a quo warranto action. Jurisprudence
across the United States likewise richly reflect that when the
Solicitor General files a quo warranto petition in behalf of the
people and where the interests of the public is involved, the
lapse of time presents no effective bar. The State is not bound
by statute of limitations nor by the laches, acquiescence or
unreasonable delay on the part of its officers. Indeed, when
the government is the real party in interest, and is proceeding
mainly to assert its rights, there can be no defense on the
ground of !aches or prescription.
A quo warranto action is a governmental function and not a
propriety function, and therefore the doctrine of laches does
not apply. (State ex rel Stovall v. Meneley)
Circumstances obtaining in this case preclude the
application of the prescriptive period
The remedy of quo warranto is intended to prevent a
continuing exercise of an authority unlawfully asserted.
Indeed, on point is People v. Bailey, when it ruled that
because quo warranto serves to end a continuous usurpation,
no statute of limitations applies to the action. Needless to say,
no prudent and just court would allow an unqualified person
to hold public office, much more the highest position in the
Judiciary.
Until recently when Sereno's qualification for office was
questioned during the hearings conducted by the House
Committee on Justice on the impeachment complaint, there
was no indication that would have prompted the Republic to
assail her appointment, much less question the wisdom or
reason behind the said recommending and appointing
authorities' actions. The defect on Sereno's appointment was
therefore not discernible, but was, on the contrary,
deliberately rendered obscure. Given the foregoing, there can
be no acquiescence or inaction on the part of the Republic as
would amount to an abandonment of its right to seek redress
against a public wrong and vindicate public interest. Neither
can delay be attributed to the Republic in commencing the
action since Sereno deliberately concealed the fact of her
disqualification to the position. Prescription, therefore, cannot
be pleaded against the Republic.
Act No. 3326 is inapplicable to the instant petition
Sereno invokes Section 1 of Act No. 3326 which provides for
the prescriptive periods for violations penalized by special
acts and municipal ordinances. Act No. 3326 is inapplicable
to the instant petition as Sereno is not being sought to be
penalized for violation of the laws relating to the non-filing or
incomplete, irregular or untruthful filing of SALNs. At any rate,
even the theorized applicability of Act No. 3326 will not work
to her advantage given that Section 2218 thereof provides that
the prescriptive period shall be reckoned either from the day
of the commission of the violation of the law, or if such be not
known at the time, from the discovery thereof and the
institution of the judicial proceeding for its investigation and
punishment.
The Court's supervisory authority over the JBC includes
ensuring that the JBC complies with its own rules
While the JBC is created by the Constitution, the Constitution
itself prescribes that it exists as an office subordinate to the
Supreme Court. Thus, under the Constitution, the JBC is
chaired by the Chief Justice of the Supreme Court and it is the
Supreme Court that determines the emoluments of the regular
JBC members and provides for the appropriations of the JBC
in its annual budget.
In interpreting the power of the Supreme Court vis-a-vis the
power of the JBC, it is consistently held that the Supreme
Court's supervisory power consists of seeing to it that the JBC
complies with its own rules and procedures. As when the
policies of the JBC are being attacked, the Court, through its
supervisory authority over the JBC, has the duty to inquire
about the matter and ensure that the JBC is compliant with its
own rules.
The Constitution vests upon the JBC the principal function of
recommending appointees to the Judiciary and such other
functions and duties as the Supreme Court may assign to it.
However, the JBC's duty to recommend or nominate, although
calling for the exercise of discretion, is neither absolute nor
unlimited.
The JBC's exercise of discretion is not automatically
equivalent to an exercise of policy decision as to place, in
wholesale, the JBC process beyond the scope of the Court's
supervisory and corrective powers. The primary limitation to
the JBC's exercise of discretion is that the nominee must
possess the minimum qualifications required by the
Constitution and the laws relative to the position. While the
resolution of who to nominate as between two candidates of
equal qualification cannot be dictated by this Court upon the
JBC, such surrender of choice presupposes that whosoever
is nominated is not otherwise disqualified. The question of
whether or not a nominee possesses the requisite
qualifications is determined based on facts and therefore does
not depend on, nor call for, the exercise of discretion on the
part of the nominating body.
Qualifications under the Constitution cannot be waived or
bargained away by the JBC
The qualifications of an aspiring Member of the Supreme
Court are enshrined in Section 7, Article VIII of the
Constitution. More than age, citizenship and professional
qualifications, Our fundamental law is clear that a member of
the Judiciary must be a person of proven competence,
integrity, probity and independence.
The JBC had put these criteria in writing, now in the form of
JBC-009. Guidelines have been set in the determination of
competence," "probity and independence," "soundness of
physical and mental condition, and "integrity. As laid down in
JBC-009, "integrity" is closely related to, or if not,
approximately equated to an applicant's good reputation for
honesty, incorruptibility, irreproachable conduct, and fidelity to
sound moral and ethical standards.
Emphatically, integrity is not only a prerequisite for an aspiring
Member of the Court but is likewise a continuing requirement
common to judges and lawyers alike. (Canon 2 of the New
Code of Judicial Conduct). The Code of Professional
Responsibility, equally applicable to Sereno as a lawyer,
requires that a lawyer shall perform his profession in a manner
compatible with the integrity of the profession. (Canon 2 and
Canon 7, CPR). Thus, in compliance with their mandate, the
JBC provided for Rule 4 on Integrity in JBC-009 Rules,
Compliance with the Constitutional and statutory
requirement of filing of SALN intimately relates to a
person's integrity
Section 17, Article XI of the 1987 Constitution on the
Accountability of Public Officers states: “A public officer or
employee shall, upon assumption of office and as often
thereafter as may be required by law, submit a declaration
under oath of his assets, liabilities, and net worth.”
Both Section 8 of R.A. No. 6713 and Section 7 of R.A. No.
3019 require the accomplishment and submission of a true,
detailed and sworn statement of assets and liabilities. Further,
under Section 11 of R.A. No. 6713, non-compliance with this
requirement is not only punishable by imprisonment and/or a
fine, it may also result in disqualification to hold public office.
The filing of the SALN is so important for purposes of
transparency and accountability that failure to comply with
such requirement may result not only in dismissal from the
public service but also in criminal liability. (Section 9 of R.A.
No. 3019)
Faithful compliance with the requirement of the filing of SALN
is rendered even more exacting when the public official
concerned is a member of the Judiciary. The obligation of
members of the Judiciary to file their respective SALNs is not
only a statutory requirement but forms part of the mandatory
conduct expected of a judge. (Rule 5.08, Code of Judicial
Conduct)
Failure to file the SALN is clearly a violation of the law. The
offense is penal in character and is a clear breach of the
ethical standards set for public officials and employees. It
disregards the requirement of transparency as a deterrent to
graft and corruption. For these reasons, a public official who
has failed to comply with the requirement of filing the SALN
cannot be said to be of proven integrity and the Court may
consider him/her disqualified from holding public office.
The cases cited by Sereno are factually different from the
instant petition. They dealt with misdeclaration of assets or
properties. Meanwhile, the fundamental issue in the case at
bar is not merely inaccurate entries, but the glaring absence
of respondent's SALN for various years prior to her resignation
from the U.P. College of Law.
Violation of SALN obligation is malum prohibitum and not
malum in se.
The SALN laws contemplate both the (1) physical act of filing
her and her family's statement of assets, liabilities and net
worth and (2) filing of a true, genuine and accurate SALN. RA
6713 and RA 3019, being special laws that punish offenses,
are malum prohibitum and not malum in se. Thus, it is the
omission or commission of that act as defined by the law, and
not the character or effect thereof, that determines whether or
not the provision has been violated. An act which is declared
malum prohibitum renders malice or criminal intent completely
immaterial.266 Thus, whether or not respondent accumulated
unexplained wealth is not in issue at this point in time, but
whether she, in the first place, complied with the mandatory
requirement of filing of SALNs. Worse, to subscribe to
respondent's view means that the Court would altogether be
deprived of the opportunity to ascertain whether or not she
accumulated unexplained wealth as the tools for doing so, that
is, the filed SALNs and the representations contained therein,
are lacking.
Burden of proof in a quo warranto proceeding
The burden of proof in a quo warranto proceeding is different
when it is filed by the State. Floyd Mechem explains that when
the respondent is called upon at the suit of the State to show
by what warrant he assumes to exercise the functions of a
public office, the burden of proving his title rests upon the
respondent. When, however, the respondent has made out a
prima facie right to the office, it is only at that time that the
burden of evidence shifts to the State
In this jurisdiction, in a quo warranto proceeding, the burden
rests on the defendant or respondent, as against the State at
least, to show his right to the office from which it is sought to
oust him. Moreover, since the object of such proceedings is to
test the actual right to the office, and not merely a use color of
right, it is incumbent upon the respondent to show a good legal
title, and not merely a colorable one, for he must rely wholly
on the strength of his own title
Defenses of Sereno
(a) Doblada doctrine
According to Sereno, the Court's rationale in Concerned
Taxpayer v. Doblada, Jr., that one cannot readily conclude
that respondent failed to file his sworn SALN simply because
these documents are missing in the OCA's files should
likewise be made applicable to her case. Sereno thus
concludes that the Republic must categorically prove its
allegation that she did not file her SALNs for all relevant years,
and not just show that the same are no longer on file with the
relevant offices.
However, in Doblado, the OCA's report that Doblada did not
file his SALNs was rendered inaccurate by proof that Doblada,
through the head of the office, actually transmitted the
required original copy of the 2000 SALN to the OCA. Here, the
SALNs which the U.P. HRDO itself cannot produce, i.e., 1986,
1987, 1988, 1992, 1999, 2000, 2001, 2003, 2004, 2005 and
2006, are not proven to be in the records of, nor proven to
have been sent to and duly received by the Ombudsman. The
existence of these SALNs and the fact of filing thereof were
neither established by direct proof constituting substantial
evidence nor by mere inference.
The Court in Doblada also gave the latter the benefit of the
doubt considering the lack of the categorical statement from
the OCA, as the repository agency. The report of the OCA
simply stated that "it does not have on its file the subject
SAL[N] of [Doblada]." In stark contrast, the Certification of the
Omdusman, as the repository agency in Sereno's case, made
the categorical statement that "based on records on file, there
is no SALN filed by [respondent] for calendar years 1999 to
2009 except SALN ending December 1998 which was
submitted to this Office on December 16, 2003."
Sereno, through counsel, attempts to mislead the Court as to
the value of the Ombudsman's Certification by re-directing
Our attention to a "handwritten certification" affixed by the
SALN custodian of the Ombudsman. The signatory of the
"handwritten certification" is the same signatory as that of the
Certification earlier issued by the Ombudsman, and thus the
former could not have possibly negated or altered the tenor of
the latter. In any case, such "handwritten certification" cannot
eclipse a Certification duly and officially issued by the
Ombudsman in response to a subpoena issued by the
Congress.
(b) That being on leave without pay exempts her from
filing her SALNs
Being on leave from government service is not synonymous
with separation from government service. Suffice to say that
one does not cease to become a government employee only
because one takes an official leave.
Section 8 of R.A. No. 6713 provides for certain exceptions to
the SALN requirement: (1) those serving in honorary capacity
- these are persons who are working in the government
without service credit and without pay; (2) laborers - these are
persons who perform ordinary manual labor; and (3) casual or
temporary workers.
Sereno claims exception on the argument that for the periods
she was on official leave from U.P., she did not receive any
pay. This statement, however, is inaccurate. The fact that she
did not receive any pay for the periods she was on leave does
not make her a government worker "serving in an honorary
capacity" to be exempted from the SALN laws. She did not
receive pay not because she was serving in an honorary
capacity, but for the simple reason that she did not render any
service for said period. Fundamental is the rule that workers
who were not required to work are not, by law, entitled to any
compensation.
(c) That she is not required by law to keep a record of her
SALNs
There is no argument that the filed SALNs need not be
retained by the receiving officer or the custodian after more
than ten years from the filing or receipt thereof as such
documents may be destroyed unless needed in an ongoing
investigation. In this context, the filer is likewise under no
obligation to keep records of such SALNs after the ten-year
period.
The fact, however, remains that even Sreno's more recent
SALNs falling within the ten-year period for her application to
the Chief Justice position are not on record. Logically, a public
officer under question should obtain a certification from the
repository agency to attest to the fact of filing. In the event that
the SALNs were actually filed but missing, such certification
should likewise attest to the fact that the SALNs filed could no
longer be located due to a valid reason
(d) That was never asked to comply with the SALN laws
Sereno points out that the U.P. HRDO never called her
attention to the non-filing thereof and instead, released a
clearance and certification in her favor. However, said
circumstance, if true, does not detract from the fact that the
duty to properly accomplish the SALN belongs to the public
official and the corrective action that the concerned authority
is expected to undertake is limited only to typographical or
mathematical rectifications.
The ministerial duty of the head of office to issue compliance
order came about only on April 16, 2006 when the Civil
Service Commission (CSC) issued Memorandum Circular No.
10, s. 2006 amending Rule VIII. As such, the U.P. HRDO
could not have been expected to perform its ministerial duty
of issuing compliance orders to Sereno when such rule was
not yet in existence at that time.
Moreover, the corrective action to be allowed should only refer
to typographical or mathematical rectifications and
explanation of disclosed entries. It does not pertain to hidden,
undisclosed or undeclared acquired assets which the official
concerned intentionally concealed by one way or another like,
for instance, the use of dummies. There is actually no hard
and fast rule. (Navarro v. Office of the Ombudsman)
(e) That her inclusion in the matrix of candidates with
complete requirements and in the shortlist nominated by
the JBC confirms or ratifies her compliance with the
SALN requirement.
The invalidity of Sereno's appointment springs from her lack
of qualifications. Her inclusion in the shortlist of candidates for
the position of Chief Justice does not negate, nor supply her
with the requisite proof of integrity. She should have been
disqualified at the outset. The JBC En Banc cannot be
deemed to have considered her eligible because it does not
appear that her failure to submit her SALNs was squarely
addressed by the body. Her inclusion in the shortlist of
nominees and subsequent appointment to the position do not
estop the Republic or this Court from looking into her
qualifications. Verily, no estoppel arises where the
representation or conduct of the party sought to be estopped
is due to ignorance founded upon an innocent mistake. Again,
without prejudice to the outcome of the pending administrative
matter, it appears that Sereno's inclusion was made under the
erroneous belief that she complied with all the legal
requirements concomitant to the position.
Sereno failed to qualify for nomination pursuant to the
JBC rules
Sereno failed to submit the required number of SALNs in
violation of the rules set by the JBC itself during the process
of nomination. The announcement for the opening of the
application of the position of Chief Justice in 2012 was
preceded by a JBC En Banc meeting where the members
thereof agreed that applicants who were previously in the
government service must submit all previous SALNs, with a
warning that those with incomplete or out-of-date
documentary requirements will not be interviewed or
considered for nomination.
The minutes of the JBC deliberation held on July 20, 2012
show that the JBC deliberated on the candidates who
submitted incomplete SALNs and then determined who
among them are to be considered as having "substantially
complied." In the end, it appears that the JBC En Banc
decided to require only the submission of the past ten (10)
SALNs, or from 2001-2011, for applicants to the Chief Justice
position
Records clearly show that the only remaining applicant-
incumbent Justice who was not determined by the JBC En
Banc to have substantially complied was Sereno, who
submitted only 3 SALNs (2009, 2010 and 2011) for her 20-
year service in UP.. Instead, Sereno offered, by way of her
July 23, 2012 letter, justifications why she should no longer be
required to file the SALNs.
Sereno's failure to submit to the JBC her SALNs for
several years means that her integrity was not
established at the time of her application
Sereno curiously failed to mention that she did not file several
SALNs during the course of her employment in U.P. Such
failure to disclose a material fact and the concealment thereof
from the JBC
betrays any claim of integrity especially from a Member of the
Supreme Court. Sereno not only failed to substantially comply
with the submission of the SALNs but there was no
compliance at all. The contents of respondent's Letter dated
July 23, 2012 itself betray an exercise of dishonesty and
disposition to deceive in an attempt to secure for herself the
appointment as Chief Justice. Sereno's failure to submit her
SALNs to the JBC means that she was not able to prove her
integrity at the time of her application as Chief Justice. For
these reasons, the JBC should no longer have considered
respondent for interview.
Sereno's disposition to commit deliberate acts and
omissions demonstrating dishonesty and lack of
forthrightness is discordant with any claim of integrity

In addition to the suspicious and highly questionable
circumstances surrounding the execution of her SALNs,
Sereno also made untruthful statements and dishonest acts
which negate her claim that she is a person of proven integrity.
— for example: (a) she had no permit from U.P. to engage in
private practice while in government service but she did
engage in private practice; (b) committed tax fraud when she
failed to truthfully declare her income in her income tax returns
for the years 2007-2009 and in her value-added tax (VAT)
returns for the years 2005-2009.
Sereno's propensity to commit dishonesty and lack of
candidness are manifested through her subsequent acts
committed during her incumbency as Chief Justice: (a) she
caused the procurement of a brand-new Toyota Land Cruiser
worth at least Php5M; (b) Caused the hiring of Ms. Helen
Macasaet without the requisite public bidding and who
received excessive compensation amounting to more than
Php 11M; (c) Misused at least Php3M of government funds for
hotel accommodation at Shangri-La Boracay as the venue of
the 3rd ASEAN Chief Justices meeting.
While the foregoing acts as revealed during the Congressional
hearings on the impeachment are not proper subjects of the
instant quo warranto petition, these acts are nevertheless
reflective and confirmatory of Sereno's lack of integrity at the
time of her nomination and appointment as Chief Justice and
her inability to possess such continuing requirement of
integrity. Indeed, Rule 130, Section 34 of the Rules on
Evidence provide:
SEC. 34. Similar acts as evidence. -- Evidence that one did or
did not do a certain thing at one time is not admissible to prove
that he did or did not do the same or a similar thing at another
time; but it may be received to prove a specific inent or
knowledge, identity, plan, system, scheme, habit, custom or
usage, and the like.
Sereno’s ineligibility for lack of proven integrity cannot
be cured by her nomination and subsequent appointment
as Chief Justice
Such failure to file and to submit the SALNs to the JBC, is a
clear violation not only of the JBC rules, but also of the law
and the Constitution. For lack of proven integrity, Sereno
ought to have been disqualified by the JBC and ought to have
been excluded from the list of nominees transmitted to the
President. As the qualification of proven integrity goes into the
barest standards set forth under the Constitution to qualify as
a Member of the Court, the subsequent nomination and
appointment to the position will not qualify an otherwise
excluded candidate. In other words, the inclusion of
respondent in the shortlist of nominees submitted to the
President cannot override the minimum Constitutional
qualifications.
Well-settled is the rule that qualifications for public office must
be possessed at the time of appointment and assumption of
office and also during the officer's entire tenure as a
continuing requirement. When the law requires certain
qualifications to be possessed or that certain disqualifications
be not possessed by persons desiring to serve as public
officials, those qualifications must be met before one even
becomes a candidate.
The voidance of the JBC nomination as a necessary
consequence of the Court's finding that Sereno is ineligible, in
the first place, to be a candidate for the position of Chief
Justice and to be nominated for said position follows as a
matter of course. The Court has ample jurisdiction to do so
without the necessity of impleading the JBC as the Court can
take judicial notice of the explanations from the JBC members
and the OEO, as regards the circumstances relative to the
selection and nomination of respondent submitted to this
Court. Relatedly, the Court, in a quo warranto proceeding,
maintains the power to issue such further judgment
determining the respective rights in and to the public office,
position or franchise of all the parties to the action as justice
requires.
Neither will the President's act of appointment cause to qualify
respondent. Although the JBC is an office constitutionally
created, the participation of the President in the selection and
nomination process is evident from the composition of the
JBC itself. The regular members of the JBC are appointees of
the President. In effect, the action of the JBC, particularly that
of the Secretary of Justice as ex-officio member, is reflective
of the action of the President. Such as when the JBC
mistakenly or wrongfully accepted and nominated respondent,
the President, through his alter egos in the JBC, commits the
same mistake and the President's subsequent act of
appointing Sereno cannot have any curative effect.
While the Court surrenders discretionary appointing power to
the President, the exercise of such discretion is subject to the
non-negotiable requirements that the appointee is qualified
and all other legal requirements are satisfied, in the absence
of which, the appointment is susceptible to attack. Even as
respondent took her "oath of office," she remains disqualified.
An oath of office is a qualifying requirement for a public office
and a prerequisite to the full investiture of the office.
Sereno is a de facto officer removable through quo
warranto
The effect of a finding that a person appointed to an office is
ineligible therefor is that his presumably valid appointment will
give him color of title that confers on him the status of a de
facto officer. A de facto judge differs, on the one hand, from a
mere usurper who undertakes to act officially without any color
of right, and on the others hand, from a judge de jure who is
in all respects legally appointed and qualified and whose term
of office has not expired. (Tayko v. Capistrano)
For lack of a Constitutional qualification, Sereno is ineligible
to hold the position of Chief Justice and is merely holding a
colorable right or title thereto. As such, Sereno has never
attained the status of an impeachable official and her removal
from the office, other than by impeachment, is justified. The
remedy, therefore, of a quo warranto at the instance of the
State is proper to oust Sereno from the appointive position of
Chief Justice.
Upon a finding that Sereno is in fact ineligible to hold the
position of Chief Justice and is therefore unlawfully holding
and exercising such public office, the consequent judgment
under Section 9, Rule 66 of the Rules of Court is the ouster
and exclusion of Sereno from holding and exercising the rights,
functions and duties of the Office of the Chief Justice.
Guidelines for the Bench, the Bar and the JBC
The willful non-filing of a SALN is an indication of dishonesty,
lack of probity and lack of integrity. Moreso if the non-filing is
repeated in complete disregard of the mandatory
requirements of the Constitution and the law.
Consistent with the SALN laws, however, SALNs filed need
not be retained after more than ten years by the receiving
office or custodian or repository unless these are the subject
of investigation pursuant to the law. Thus, to be in keeping
with the spirit of the law requiring public officers to file SALNs
- to manifest transparency and accountability in public office if
public officers cannot produce their SALNs from their personal
files, they must obtain a certification from the office where they
filed and/or the custodian or repository thereof to attest to the
fact of filing. In the event that said offices certify that the SALN
was indeed filed but could not be located, said offices must
certify the valid and legal reason of their non-availability, such
as by reason of destruction by natural calamity due to fire or
earthquake, or by reason of the allowed destruction after ten
years under Section 8 of R.A. No. 6713.
Blatant disregard and open defiance to the Sub Judice
Rule
The sub Judice rule restricts comments and disclosures
pertaining to the judicial proceedings in order to avoid
prejudging the issue, influencing the court, or obstructing the
administration of justice. The rationale for this rule is for the
courts, in the decision of issues of fact and law, to be immune
from every extraneous influence; for the case to be decided
upon evidence produced in court; and for the determination of
such facts be uninfluenced by bias, prejudice or symphathies.
In fine, what is sought to be protected is the primary duty of
the courts to administer justice in the resolution of cases
before them. Thus, it is generally inappropriate to discuss the
merits of and make comment's on cases sub Judice and such
acts may even result to contempt of court.
In Philippine jurisdiction, the sub judice rule finds legal basis
on the Court's power of contempt, particularly Section 3(d) of
Rule 71 (Indirect Contempt) of the Rules of Court: “Any
improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice”
The oft-cited defense of persons charged with indirect
contempt for violating the sub Judice rule is their right to free
speech. However, when actions, posing to be innocent
exercise of such right, "impede, interfere with and embarrass
the administration of justice" or "make a serious and imminent
threat thereto", this Court will not hesitate to call out and
punish the same. In Sheppard v. Maxwell, the US Supreme
Court reminds that although the freedom of expression should
be given great latitutde, it must not be so broad as to divert
the trial away from its objective which is to adjudicate both
criminal and civil matters in an objective, calm, and solemn
courtroom setting.
The sub Judice rule finds a more austere application to
members of the Bar and of the Bench as ·the strict observance
thereof is mandated by the Code of Professional
Responsibility (Canon 13.02) and the Code of Judicial
Conduct.
Lawyer speech is subject to greater regulation for two
significant reasons: one, because of the lawyer's relationship
to the judicial process; and two, the significant dangers that a
lawyer's speech poses to the trial process. 329 As such,
actions in violation of the sub Judice rule may be dealt with
not only through contempt proceedings but also through
administrative actions.
Sereno and her spokepersons chose to litigate her case, apart
from her Ad Cautelam submissions to the Court, before
several media-covered engagements. Through her actuations,
she appears to have forgotten that this is a court action for
quo warranto, and as such, the concomitant rule on sub
Judice unnegotiably applies. Worst still, Sereno who is a
lawyer and who asserts right to the Chief Justice position and
therefore must foremost be aware of the rule, continues to
conjure public clamor against the Court and its Members with
regard to this pending case in Court.
The public actuation of Sereno showing disdain and contempt
towards some Members of the Court whom she dubbed as
"Biased 5" later increased and modified to "Biased 6" can no
longer be tolerated. She may be held liable for disbarment for
violating the Canons of Professional Responsibility for
violating the sub Judice rule by repeatedly discussing the
merits of the quo warranto petition in different fora and for
casting aspersions and ill motives to the Members of the Court
even before a decision is made, designed to affect the results
of the Court's collegial vote and influence public opinion.
De Castro v. Judicial and Bar Council (2010)
Summary Cases:
Subject:
Locus Standi, Taxpayer’s Suit, Citizen’s Suit, Justiciable
Issue, Midnight Appointment Ban, Statutory Construction,
Judicial and Bar Council, “Acting” Chief Justice under the
Judiciary Act of 1948, Chief Justice, Mandamus, Ministerial
Act, Discretionary Act
Facts:
This case involves several petitions filed either for the
prohibition of or mandamus for the Judicial and Bar Council
(JBC) to submit to the President its list of nominees for the
position of Chief Justice. The case also raised the issue on
whether the appointment of the next Chief Justice by the
incumbent President GMA is a midnight appointment
prohibited by the Constitution.
The controversy arose from the forthcoming compulsory
retirement of Chief Justice Puno on May 17, 2010 or seven
days after the presidential election. On 22 December 2009,
Congressman Matias Defensor, an ex-officio member of the
JBC, addressed a letter to the JBC and requested that the
process for nominations to the office of the Chief Justice be
commenced immediately. Consequently, the JBC passed a
resolution unanimously agreeing to start the process of filling
up the position of Chief Justice. The process has already
begun, however, the JBC is not yet decided on when to submit
to the President its list of nominees due to controversy in this
case being unresolved.
The parties frequently cited the case of In Re Appointments of
Valenzuela and Vallarta (Valenzuela) as a precedent, which
held that the prohibition of the President to make “midnight
appointments” under Section 15, Article VII applies to
appointments in the judiciary.
Held:
Locus Standi
1. Locus standi is defined as “a right of appearance in a court
of justice on a given question.”
2. It has been held that the interest of a person assailing the
constitutionality of a statute must be direct and personal. He
must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent
danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some
definite way.
3. It must appear that the person complaining has been or is
about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or the act
complained of.
4. Legal standing is a peculiar concept in constitutional law
because in some cases, suits are not brought by parties who
have been personally injured by the operation of law or any
other government act but by concerned citizens, taxpayers or
voters who actually sue in the public interest.
Taxpayer’s Suit vs. Citizen’s Suit
5. In Beauchamp v. Silk, it was held that “in a taxpayer’s suit,
the plaintiff is affected by the expenditure of public funds,
while in a citizen’s suit, the plaintiff is but a mere instrument of
the public concern.”
6. Terr v. Jordan held that “the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied.”
Transcendental Importance
7. The Court retains the broad discretion to waive the
requirement of legal standing in favor of any petitioner when
the matter involved has transcendental importance, or
otherwise requires a liberalization of the requirement.
Justiciable Issue
8. Although the position is not yet vacant, the fact that the JBC
began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the
list of nominees to the incumbent outgoing President or to the
next President, makes the situation ripe for judicial
determination.
9. There is no need to wait for the occurrence of the vacancy
in order for the principal issue to be ripe for judicial
determination by the Court. It is enough that one alleges
conduct arguably affected with a constitutional interest, but
seemingly proscribed by the Constitution.
10. A reasonable certainty of the occurrence of the perceived
threat to a constitutional interest is sufficient to afford a basis
for bringing a challenge, provided the Court has sufficient
facts before it to enable to intelligently adjudicate the issues.
Midnight Appointment Ban
11. The prohibition against presidential appointments under
Section 15, Article VII does not extend to
appointments in the Judiciary.
12. Article VII is devoted to the Executive Department.
Specifically, the presidential power of appointment is dealt
with in Sections 14, 15 and 16 of the Article. On the other hand,
Article VIII is dedicated to the Judicial Department. Section
4(1) and Section 9 specifically provide for the appointment of
the Supreme Court Justices.
13. Had the framers intended to extend the prohibition
contained in Section 15, Article VII to the appointment of
Members of the Supreme Court, they could have explicitly
done so. They could not have ignored the meticulous ordering
of the provisions.
Statutory Construction
14. The usage in Section 4(1), Article VIII of the word “shall”
constitutes an imperative duty on the President to make an
appointment of a Member of the Supreme Court within 90
days from the occurrence of the vacancy.
15. It is the intent of the Constitutional Commission to have
Section 4(1), Article VIII stand independently of any other
provision, least of all one found in Article VII. The two
provisions had no irreconcilable conflict, regardless of Section
15, Article VII being couched in the negative.
16. The enactment should be construed with reference to its
intended scope and purpose, and the court
should seek to carry out this purpose rather than to defeat it.
Rationale for the Prohibition
17. One of the reasons underlying the adoption of Section 15,
Article VII was to eliminate midnight appointments, or
appointments made for partisan considerations, from being
made by an outgoing Chief Executive.
18. In contrast, the appointments to the Judiciary made after
the establishment of the JBC would not be suffering from such
defects because of the JBC’s prior processing of candidates.
Judicial and Bar Council
19. The creation of the JBC was precisely intended to
depoliticize the Judiciary by doing away with the intervention
of the Commission on Appointments.
20. The intervention of the JBC eliminates the danger that
appointments to the Judiciary can be made for the purpose of
buying votes in a coming presidential election, or of satisfying
partisan considerations because any recommended
candidate first had to undergo the vetting of the JBC and pass
muster there.
21. It is mandatory for the JBC to submit to the President the
list of nominees to fill a vacancy in the Supreme Court in order
to enable the President to appoint one of them within the 90-
day period from the occurrence of the vacancy.
22. The JBC has no discretion to submit the list of nominees
to fill a vacancy in the Supreme Court to the President after
the vacancy occurs, because that shortens the 90-day period
allowed by the Constitution for the President to make the
appointment.
Valenzuela Ruling Reversed
23. Valenzuela arbitrarily ignored the express intent of the
Constitutional Commission to have Section 4(1), Article VIII
stand independently of any other provision, least of all one
found in Article VII.
24. Valenzuela was weak, because it relied on interpretation
to determine the intent of the framers rather than on the
deliberations of the Constitutional Commission.
25. To hold like the Court did in Valenzuela that Section 15
extends to appointments to the Judiciary further undermines
the intent of the Constitution of ensuring the independence of
the Judicial Department from the Executive and Legislative
Departments.
Appointment to the Supreme Court
26. The Supreme Court is composed of a Chief Justice and
14 Associate Justices, who all shall be appointed by the
President from a list of at least three nominees prepared by
the JBC for every vacancy, which appointments require no
confirmation by the Commission on Appointments.
27. With reference to the Chief Justice, he or she is appointed
by the President as Chief Justice, and the appointment is
never in an acting capacity.
28. The framers intended the position of Chief Justice to be
permanent, not one to be occupied in an acting or temporary
capacity.
“Acting” Chief Justice under the Judiciary Act of 1948
29. Section 12 of the Judiciary Act of 1948 only responds to a
rare situation in which the new Chief Justice is not yet
appointed, or in which the incumbent Chief Justice is unable
to perform the duties and powers of the office.
30. It is to be noted, however, that the Judiciary Act was
enacted because the Chief Justice appointed under the 1935
Constitution was subject to the confirmation of the
Commission on Appointments, and the confirmation process
might take longer than expected.
Chief Justice
31. The Chief Justice, as the head of the entire Judiciary,
performs functions absolutely significant to the life of the
nation.The lack of any appointed occupant of the office of
Chief Justice harms the independence of the Judiciary.
32. The appointment of the next Chief Justice by the
incumbent President is preferable to having the Associate
Justice who is first in precedence take over.
Mandamus
33. Mandamus shall issue when any tribunal, corporation,
board, officer or person unlawfully neglects the performance
of an act that the law specifically enjoins as a duty resulting
from an office, trust, or station.
34. Mandamus is not available to direct the exercise of a
judgment or discretion in a particular way.
35. For mandamus to lie, the following must be complied with:
(a) the plaintiff has a clear legal right to the act demanded; (b)
it must be the duty of the defendant to perform the act,
because it is mandated by law; (c) the defendant unlawfully
neglects the performance of the duty enjoined by law; (d) the
act to be performed is ministerial, not discretionary; and (e)
there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law.
Ministerial Act vs. Discretionary Act
36. A purely ministerial act or duty is one which an officer or
tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of a legal authority,
without regard to or the exercise of his own judgment upon the
propriety or impropriety of the act done. The duty is ministerial
only when the discharge of the same requires neither the
exercise of official discretion or judgment.
37. A discretionary act or duty is one in which the law imposes
a duty upon a public officer and gives the right to decide how
or when the duty shall be performed.
38. The duty of the JBC to submit a list of nominees before
the start of the President’s mandatory 90-day period to
appoint is ministerial, but its selections of the candidates
whose names will be in the list to be submitted to the President
lies within the discretion of the JBC.
Datu Michael Abas Kida vs. Senate of the Philippines
(2012)
Summary Cases:
Subject: Synchronization mandate for national and local
elections includes ARMM elections; Autonomous regions like
the ARMM are classified as local governments; Elections held
in autonomous regions are considered as local elections; R.A.
No. 10153 does not amend R.A. No. 9054; Supermajority vote
requirement makes RA No. 9054 an irrepealable law which is
constitutionally prohibited; Not every amendment to the
ARMM Organic Act requires ratification by means of a
plebiscite (The plebiscite requirement in RA No. 9054 is overly
broad and therefore unconstitutional); Congress has no
authority to extend the three-year term limit by inserting a
holdover provision in RA No. 9054; COMELEC has no
authority to hold special elections; President’s power to
appoint OICs under RA 10153 covers both appointive and
elective positions in the ARMM; Power to appoint OICs is not
incompatible with the President’s power of supervision over
local governments and autonomous regions; RA No. 10153 is
an interim measure; Executive is not bound by the principle of
judicial courtesy
Facts:
On October 18, 2011, the Supreme Court issued a Decision
where it upheld the constitutionality of
Republic Act No. 10153.
Pursuant to the constitutional mandate of synchronization, RA
10153 postponed the regional elections in the Autonomous
Region in Muslim Mindanao (ARMM) (which were scheduled
to be held on the second Monday of August 2011) to the
second Monday of May 2013 and recognized the President’s
power to appoint officers-in-charge (OICs) to temporarily
assume these positions upon the expiration of the terms of the
elected officials.
Hence, the present motions for reconsideration filed by
petitioners. The motions raise the following questions:
(a) Does the Constitution mandate the synchronization of
ARMM regional elections with national and local elections?
(b) Does RA No. 10153 amend RA No. 9054? If so, does RA
No. 10153 have to comply with the supermajority vote and
plebiscite requirements?
(c) Is the holdover provision in RA No. 9054 constitutional?
(d) Does the COMELEC have the power to call for special
elections in ARMM?
(e) Does granting the President the power to appoint OICs
violate the elective and representative nature of ARMM
regional legislative and executive offices?
(f) Does the appointment power granted to the President
exceed the President’s supervisory powers over autonomous
Held:
Synchronization mandate for national and local elections
includes ARMM elections
1. While the Constitution does not expressly instruct Congress
to synchronize the national and local elections, the intention
can be inferred from the provisions of the Transitory
Provisions (Article XVIII) of the Constitution, particularly Sec
1, 2 and 5. The court came to the same conclusion in Osmena ̃
v. Commission on Elections, where the court unequivocally
stated that “the Constitution has mandated synchronized
national and local elections.
2. That the ARMM elections were not expressly mentioned in
the Transitory Provisions of the Constitution on
synchronization cannot be interpreted to mean that the ARMM
elections are not covered by the constitutional mandate of
synchronization. We have to consider that the ARMM, as we
now know it, had not yet been officially organized at the time
the Constitution was enacted and ratified by the people.
Keeping in mind that a constitution is not intended to provide
merely for the exigencies of a few years but is to endure
through generations for as long as it remains unaltered by the
people as ultimate sovereign, a constitution should be
construed in the light of what actually is a continuing
instrument to govern not only the present but also the
unfolding events of the indefinite future. Although the
principles embodied in a constitution remain fixed and
unchanged from the time of its adoption, a constitution must
be construed as a dynamic process intended to stand for a
great length of time, to be progressive and not static.
Autonomous regions like the ARMM are classified as
local governments
3. Article X of the Constitution, entitled “Local Government,”
clearly shows the intention of the Constitution to classify
autonomous regions, such as the ARMM, as local
governments. Section 1 of Article X provides:
Section 1. The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.
4. The inclusion of autonomous regions in the enumeration of
political subdivisions of the State under the heading “Local
Government” indicates quite clearly the constitutional intent to
consider autonomous regions as one of the forms of local
governments.
5. That the Constitution mentions only the “national
government” and the “local governments,” and does not make
a distinction between the “local government” and the “regional
government,” is particularly revealing, betraying as it does the
intention of the framers of the Constitution to consider the
autonomous regions not as separate forms of government,
but as political units which, while having more powers and
attributes than other local government units, still remain under
the category of local governments.
Elections held in autonomous regions are considered as
local elections
6. The petitioners argue that the ARMM elections are not
covered by the synchronization mandate since they are
regional elections and not local elections.
7. Since autonomous regions are classified as local
governments, it follows that elections held in autonomous
regions are also considered as local elections.
8. In construing provisions of the Constitution, the first rule is
verba legis, “that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except
where technical terms are employed.” Applying this principle
to determine the scope of “local elections,” we refer to the
meaning of the word “local,” as understood in its ordinary
sense. As defined in Webster’s Third New International
Dictionary Unabridged, “local” refers to something “that
primarily serves the needs of a particular limited district, often
a community or minor political subdivision.” Obviously, the
ARMM elections, which are held within the confines of the
autonomous region of Muslim Mindanao, fall within this
definition.
9. To be sure, the fact that the ARMM possesses more powers
than other provinces, cities, or municipalities is not enough
reason to treat the ARMM regional elections differently from
the other local elections. Ubi lex non distinguit nec nos
distinguire debemus. When the law does not distinguish, we
must not distinguish.
R.A. No. 10153 does not amend R.A. No. 9054
10. Petitioners insist that the provisions of RA No. 10153, in
postponing the ARMM elections, amend RA No. 9054.
11. A thorough reading of RA No. 9054 reveals that it fixes the
schedule for only the first ARMM elections; it does not provide
the date for the succeeding regular ARMM elections. In fixing
the date of the ARMM elections subsequent to the first
election, RA No. 9333 and RA No. 10153 merely filled the gap
left in RA No. 9054, and do not change or revise any provision
in RA No. 9054.
12. The clear intention of Congress is to treat the laws which
fix the date of the subsequent ARMM elections as separate
and distinct from the Organic Acts. Congress only acted
consistently with this intent when it passed RA No. 10153
without requiring compliance with the amendment
prerequisites embodied in Section 1 and Section 3, Article
XVII of RA No. 9054.
Supermajority vote requirement makes RA No. 9054 an
irrepealable law which is constitutionally prohibited
13. Since RA No. 10153 does not amend, but merely fills in
the gap in RA No. 9054, there is no need for RA No. 10153 to
comply with the amendment requirements set forth in Article
XVII of RA No. 9054.
14. Even so, the supermajority vote requirement set forth in
Section 1, Article XVII of RA No. 9054 ( i.e., 2/3 vote from the
House of Representatives and the Senate, voting separately)
is unconstitutional for violating the principle that Congress
cannot pass irrepealable laws.
15. The power of the legislature to make laws includes the
power to amend and repeal these laws. Where the legislature,
by its own act, attempts to limit its power to amend or repeal
laws, the Court has the duty to strike down such act for
interfering with the plenary powers of Congress.
16. Every legislative body may modify or abolish the acts
passed by itself or its predecessors. This power of repeal may
be exercised at the same session at which the original act was
passed; and even while a bill is in its progress and before it
becomes a law. This legislature cannot bind a future
legislature to a particular mode of repeal. It cannot declare in
advance the intent of subsequent legislatures or the effect of
subsequent legislation upon existing statutes. (see Duarte v.
Dade)
17. Under our Constitution, each House of Congress has the
power to approve bills by a mere majority vote, provided there
is quorum. In requiring all laws which amend RA No. 9054 to
comply with a higher voting requirement (2/3 vote) than what
the Constitution provides, Congress, which enacted RA No.
9054, clearly violated the very principle established in Duarte.
To reiterate, the act of one legislature is not binding upon, and
cannot tie the hands of, future legislatures. .
18. One Congress cannot limit or reduce the plenary
legislative power of succeeding Congresses by requiring a
higher vote threshold than what the Constitution requires to
enact, amend or repeal laws. No law can be passed fixing
such a higher vote threshold because Congress has no power,
by ordinary legislation, to amend the Constitution.
Not every amendment to the ARMM Organic Act requires
ratification by means of a plebiscite (The plebiscite
requirement in RA No. 9054 is overly broad and therefore
unconstitutional)
19. Petitioners' contention that the plebiscite requirement
applies to all amendments of RA No. 9054 is also struck down
for being an unreasonable enlargement of the plebiscite
requirement set forth in the Constitution.
20. Section 18, Article X of the Constitution provides that “the
creation of the autonomous region shall be effective when
approved by majority of the votes cast by the constituent units
in a plebiscite called for the purpose.”
21. We interpreted this to mean that only amendments to, or
revisions of, the Organic Act constitutionally-essential to the
creation of autonomous regions – i.e., those aspects
specifically mentioned in the Constitution which Congress
must provide for in the Organic Act – require ratification
through a plebiscite. We stand by this interpretation.
22. For if we were to go by the petitioners’ interpretation of
Section 18, Article X of the Constitution that all amendments
to the Organic Act have to undergo the plebiscite requirement
before becoming effective, this would lead to impractical and
illogical results – hampering the ARMM’s progress by
impeding Congress from enacting laws that timely address
problems as they arise in the region, as well as weighing down
the ARMM government with the costs that unavoidably follow
the holding of a plebiscite.
23. It is posited that that Sec 3 of RA No. 10153, in giving the
President the power to appoint OICs to take the place of the
elective officials of the ARMM, creates a fundamental change
in the basic structure of the government, and thus requires
compliance with the plebiscite requirement embodied in RA
No. 9054. The court disagrees. The said provision clearly
preserves the basic structure of the ARMM regional
government when it recognizes the offices of the ARMM
regional government and directs the OICs who shall
temporarily assume these offices to “perform the functions
pertaining to the said offices.”
Congress has no authority to extend the three-year term
limit by inserting a holdover provision in RA No. 9054
24. Petitioners are one in defending the constitutionality of
Section 7(1), Article VII of RA No. 9054, which allows the
regional officials to remain in their positions in a holdover
capacity. The petitioners essentially argue that the ARMM
regional officials should be allowed to remain in their
respective positions until the May 2013 elections since there
is no specific provision in the Constitution which prohibits
regional elective officials from performing their duties in a
holdover capacity.
25. Section 8, Article X of the Constitution provides:
Section 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than three
consecutive terms.
26. The clear wording of Section 8, Article X of the Constitution
expresses the intent of the framers of the Constitution to
categorically set a limitation on the period within which all
elective local officials can occupy their offices.
27. Elective ARMM officials are also local officials,thus, they
are bound by the three-year term limit prescribed by the
Constitution.
28. It is irrelevant that the Constitution does not expressly
prohibit elective officials from acting in a holdover capacity.
Short of amending the Constitution, Congress has no
authority to extend the three-year term limit by inserting a
holdover provision in RA No. 9054. Thus, the term of three
years for local officials should stay at three (3) years, as fixed
by the Constitution, and cannot be extended by holdover by
Congress.
29. In the past, the court has recognized the validity of
holdover provisions in various laws. One significant difference
is that while these past cases all refer to elective barangay or
sangguniang kabataan officials whose terms of office are not
explicitly provided for in the Constitution, the present case
refers to local elective officials - the ARMM Governor, the
ARMM Vice Governor, and the members of the Regional
Legislative Assembly - whose terms fall within the three-year
term limit set by Section 8, Article X of the Constitution.
30. Even assuming that a holdover is constitutionally
permissible, and there had been statutory basis for it, the rule
of holdover can only apply as an available option where no
express or implied legislative intent to the contrary exists; it
cannot apply where such contrary intent is evident.
31. Congress, in passing RA No. 10153 in the exercise of its
plenary legislative powers, has clearly acted within its
discretion when it deleted the holdover option under RA 9054.
COMELEC has no authority to hold special elections
32. The Constitution has merely empowered the COMELEC
to enforce and administer all laws and regulations relative to
the conduct of an election. Although the legislature, under the
Omnibus Election Code (Batas Pambansa Bilang (BP) 881),
has granted the COMELEC the power to postpone elections
to another date, this power is confined to the specific terms
and circumstances provided for in the law. Specifically, both
Section 5 and Section 6 of BP 881 address instances where
elections have already been scheduled to take place but do
not occur or had to be suspended because of unexpected and
unforeseen circumstances, such as violence, fraud, terrorism,
and other analogous circumstances.
33. In contrast, the ARMM elections were postponed by law,
in furtherance of the constitutional mandate of synchronization
of national and local elections. Obviously, this does not fall
under any of the circumstances contemplated by Section 5 or
Section 6 of BP 881.
34. More importantly, RA No. 10153 has already fixed the date
for the next ARMM elections and the COMELEC has no
authority to set a different election date.
35. Even assuming that the COMELEC has the authority to
hold special elections, and this Court can compel the
COMELEC to do so, there is still the problem of having to
shorten the terms of the newly elected officials in order to
synchronize the ARMM elections with the May 2013 national
and local elections. Obviously, neither the Court nor the
COMELEC has the authority to do this, amounting as it does
to an amendment of Section 8, Article X of the Constitution,
which limits the term of local officials to three years.
President’s power to appoint OICs under RA 10153
covers both appointive and elective positions in the
ARMM
36. It is argued that the President’s power to appoint pertains
only to appointive positions and cannot extend to positions
held by elective officials.
37. The power to appoint has traditionally been recognized as
executive in nature. Section 16, Article VII of the Constitution
describes in broad strokes the extent of this power, thus:
Section 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
38. While in the 1935 Constitution, the various appointments
the President can make are enumerated in a single sentence,
the 1987 Constitution enumerates the various appointments
the President is empowered to make and divides the
enumeration in two sentences. The change in style is
significant; in providing for this change, the framers of the
1987 Constitution clearly sought to make a distinction
between the first group of presidential appointments and the
second group of presidential appointments.
39. The first group of presidential appointments: the heads of
the executive departments, ambassadors, other public
ministers and consuls, or officers of the Armed Forces, and
other officers whose appointments are vested in the President
by the Constitution, pertains to the appointive officials who
have to be confirmed by the Commission on Appointments.
40. The second group of officials the President can appoint
are “all other officers of the Government whose appointments
are not otherwise provided for by law, and those whom he may
be authorized by law to appoint.” The second sentence acts
as the “catch-all provision” for the President’s appointment
power, in recognition of the fact that the power to appoint is
essentially executive in nature. In other words, where there
are offices which have to be filled, but the law does not provide
the process for filling them, the Constitution recognizes the
power of the President to fill the office by appointment.
41. Any limitation on or qualification to the exercise of the
President’s appointment power should be strictly construed
and must be clearly stated in order to be recognized. Given
that the President derives his power to appoint OICs in the
ARMM regional government from law, it falls under the
classification of presidential appointments covered by the
second sentence of Section 16, Article VII of the Constitution.
The President’s appointment power thus rests on clear
constitutional basis.
Power to appoint OICs is not incompatible with the
President’s power of supervision over local governments
and autonomous regions
42. There is no incompatibility between the President’s power
of supervision over local governments and autonomous
regions, and the power granted to the President to appoint
OICs.
43. The power of supervision is defined as “the power of a
superior officer to see to it that lower officers perform their
functions in accordance with law.” This is distinguished from
the power of control or “the power of an officer to alter or
modify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of
the former for the latter.
44. The petitioners’ apprehension regarding the President’s
alleged power of control over the OICs is rooted in their belief
that the President’s appointment power includes the power to
remove these officials at will. However, Section 3 of RA No.
10153 clearly provides that once the President has appointed
the OICs for the offices of the Governor, Vice Governor and
members of the Regional Legislative Assembly, these same
officials will remain in office until they are replaced by the duly
elected officials in the May 2013 elections. Nothing in this
provision even hints that the President has the power to recall
the appointments he already made.
RA No. 10153 is an interim measure
45. Congress enacted RA No. 10153 primarily to heed the
constitutional mandate to synchronize the ARMM regional
elections with the national and local elections. To do this,
Congress had to postpone the scheduled ARMM elections for
another date, leaving it with the problem of how to provide the
ARMM with governance in the intervening period, between the
expiration of the term of those elected in August 2008 and the
assumption to office – 21 months away – of those who will win
in the synchronized elections on May 13, 2013.
46. In this way, RA No. 10153 is in reality an interim measure,
enacted to respond to the adjustment that synchronization
requires. Given the context, we have to judge RA No. 10153
by the standard of reasonableness in responding to the
challenges brought about by synchronizing the ARMM
elections with the national and local elections. In other words,
“given the plain unconstitutionality of providing for a holdover
and the unavailability of constitutional possibilities for
lengthening or shortening the term of the elected ARMM
officials, is the choice of the President’s power to appoint – for
a fixed and specific period as an interim measure, and as
allowed under Section 16, Article VII of the Constitution – an
unconstitutional or unreasonable choice for Congress to make?
47. The grant to the President of the power to appoint OICs in
place of the elective members of the Regional Legislative
Assembly is neither novel nor innovative. The power granted
to the President, via RA No. 10153, to appoint members of the
Regional Legislative Assembly is comparable to the power
granted by BP 881 (the Omnibus Election Code) to the
President to fill any vacancy for any cause in the Regional
Legislative Assembly (then called the Sangguniang Pampook)
48. While synchronization will temporarily disrupt the election
process in a local community, however, the adoption of this
measure is a matter of necessity in order to comply with a
mandate that the Constitution itself has set out.
Executive is not bound by the principle of judicial
courtesy
49. Several petitioners question the propriety of the
appointment by the President of Mujiv Hataman as acting
Governor and Bainon Karon as acting Vice Governor of the
ARMM. They argue that since our previous decision was
based on a close vote of 8-7, and given the numerous motions
for reconsideration filed by the parties, the President, in
recognition of the principle of judicial courtesy, should have
refrained from implementing our decision until we have ruled
with finality on this case.
50. Firstly, the principle of judicial courtesy is based on the
hierarchy of courts and applies only to lower courts in
instances where, even if there is no writ of preliminary
injunction or TRO issued by a higher court, it would be proper
for a lower court to suspend its proceedings for practical and
ethical considerations. In other words, the principle of “judicial
courtesy” applies where there is a strong probability that the
issues before the higher court would be rendered moot and
moribund as a result of the continuation of the proceedings in
the lower court or court of origin. Consequently, this principle
cannot be applied to the President, who represents a co-equal
branch of government. To suggest otherwise would be to
disregard the principle of separation of powers, on which our
whole system of government is founded upon.
51. Secondly, the fact that our previous decision was based
on a slim vote of 8-7 does not, and cannot, have the effect of
making our ruling any less effective or binding. Regardless of
how close the voting is, so long as there is concurrence of the
majority of the members of the en banc who actually took part
in the deliberations of the case, a decision garnering only 8
votes out of 15 members is still a decision of the Supreme
Court en banc and must be respected as such. The petitioners
are, therefore, not in any position to speculate that, based on
the voting, “the probability exists that their motion for
reconsideration may be granted.”
52. We agree with the petitioner that the lifting of a TRO can
be included as a subject of a motion for reconsideration filed
to assail our decision. It does not follow, however, that the
TRO remains effective until after we have issued a final and
executory decision. Unlike in Tolentino v. Secretary of
Finance cited by petitioners, in the present case, we expressly
lifted the TRO issued on September 13, 2011. There is,
therefore, no legal impediment to prevent the President from
exercising his authority to appoint an acting ARMM Governor
and Vice Governor as specifically provided for in RA No.
10153.
Rufino vs. Endriga
GR No 139554, July 21 2006
EN BANC
CASE MAIN POINT:
Appointing authority may be given to other officials than the
President provided the appointment is in a rank lower than the
appointing official. (ARTICLE 7, SECTION 16: APPOINTING
POWER CAN BE VESTED IN OTHER OFFICIALS)
FACTS:
Two groups of appointed members of the Board of Trustees
of CCP are contesting each other’s appointment. The Endriga
group, sitting as current members, was appointed by then-
President Ramos and is assailing the appointment of the
Rufino group, replacing all 7 members of the Endriga group,
by then-President Estrada.
Endriga group avers that the appointment into the Board of
the Rufino group transgressed PD 15 – creation of Board of
Trustees of CCP. As stated in PD 15, specifically Section 6,
appointment into the Board shall only be made by a majority
vote of the trustees; presidential appointments can only be
made when the Board is entirely vacant to uphold the CCP’s
charter of independence from pressure or politics.
Meanwhile, Rufino group stands by their appointment since
the provision on appointments stated in Section 6, PD 15 is
violative of Section 16, Article 7 of the Constitution. The Board
cannot invoke the charter of autonomy to extend to
appointment of its members.
ISSUE:
Whether or not PD 15, Section 6 allowing appointments made
by trustees of their fellow members is constitutional
HELD:
No, PD 15, Section 6 allowing appointments of members by
the trustees themselves is UNCONSTITUTIONAL.
While it is stated that appointing powers may be delegated by
the President, such power is limited in scope to include only
ranks lower than the appointing authority.
In the case, an appointment of a member made by a fellow
member transgresses Article 7, Section 16 (1) since both
positions are equal in nature. CCP cannot invoke autonomy
prescribed in its charter as an exemption from the limitation of
delegative appointing power because such invocation puts
CCP outside the control of the President.
DARIO vs MISON CESAR Z. DARIO,
petitioner, vs. HON. SALVADOR M. MISON, HON. VICENTE
JAYME and HON. CATALINO MACARAIG, JR., in their
respective capacities as Commissioner of Customs, Secretary
of Finance, and Executive Secretary,respondents. And 6
other petitions August 8, 1989 SARMIENTO, J.
FACTS:
In 1986, Cory Aquino promulgated Proclamation No. 3,
"DECLARING A NATIONAL POLICY TO IMPLEMENT THE
REFORMS MANDATED BY THE PEOPLE...”, the mandate
of the people to Completely reorganize the government. In
January 1987, she promulgated EO 127, "REORGANIZING
THE MINISTRY OF FINANCE". Among other offices,
Executive Order No. 127 provided for the reorganization of the
Bureau of Customs and prescribed a new staffing pattern
therefor. In February 1987, a brand new constitution was
adopted. On January 1988, incumbent Commissioner of
Customs Salvador Mison issued a Memorandum, in the
nature of "Guidelines on the Implementation of
Reorganization Executive Orders," prescribing the procedure
in personnel placement. It also provided that by February
1988, all employees covered by EO 127 and the grace period
extended to the Bureau of Customs by the President on
reorganization shall be: a) informed of their re-appointment, or
b) offered another position in the same department or agency,
or c) informed of their termination.
Mison addressed several notices to various Customs officials
stating that they shall continue to perform their respective
duties and responsibilities in a hold-over capacity, and that
those incumbents whose positions are not carried in the new
reorganization pattern, or who are not re-appointed, shall be
deemed separated from the service. A total of 394 officials
and employees of the Bureau of Customs were given
individual notices of separation. They filed appeals with the
CSC.
On June 1988, the CSC promulgated its ruling ordering the
reinstatement of the 279 employees, the 279 private
respondents in G.R. No. 85310. Commissioner Mison,
represented by the Solicitor General, filed a motion for
reconsideration, which was denied. Commissioner Mison
instituted certiorari proceedings.
On June 10, 1988, Republic Act No. 6656, "AN ACT TO
PROTECT THE SECURITY OF TENURE OF CIVIL
SERVICE OFFICERS AND EMPLOYEES IN THE
IMPLEMENTATION OF GOVERNMENT
REORGANIZATION," was signed into law containing the
provision:
“Sec. 9. All officers and employees who are found by the Civil
Service Commission to have been separated in violation of
the provisions of this Act, shall be ordered reinstated or
reappointed as the case may be without loss of seniority and
shall be entitled to full pay for the period of separation. Unless
also separated for cause, all officers and employees, including
casuals and temporary employees, who have been separated
pursuant to reorganization shall, if entitled thereto, be paid the
appropriate separation pay and retirement and other
benefitsxxx”
On June 23, 1988, Benedicto Amasa and William Dionisio,
customs examiners appointed by Commissioner Mison
pursuant to the ostensible reorganization subject of this
controversy, petitioned the Court to contest the validity of the
statute. On October 21, 1988, thirty-five more Customs
officials whom the Civil Service Commission had ordered
reinstated by its June 30, 1988 Resolution filed their own
petition to compel the Commissioner of Customs to comply
with the said Resolution.
Cesar Dario was one of the Deputy Commissioners of the
Bureau of Customs until his relief on orders of Commissioner
Mison on January 26, 1988. In essence, he questions the
legality of his dismissal, which he alleges was upon the
authority of Section 59 of Executive Order No. 127 (SEC. 59.
New Structure and Pattern. Upon approval of this Executive
Order, the officers and employees of the Ministry shall, in a
holdover capacity, continue to perform their respective duties
and responsibilities and receive the corresponding salaries
and benefits unless in the meantime they are separated from
government service pursuant to Executive Order No. 17 (1986)
or Article III of the Freedom Constitution. Incumbents whose
positions are not included therein or who are not reappointed
shall be deemed separated from the service. Those separated
from the service shall receive the retirement benefits to which
they may be entitled.
A provision he claims the Commissioner could not have
legally invoked. He avers that he could not have been legally
deemed to be an "incumbent whose position is not included
therein or who is not reappointed” to justify his separation from
the service. He contends that neither the Executive Order
(under the second paragraph of the section) nor the staffing
pattern proposed by the Secretary of Finance abolished the
office of Deputy Commissioner of Customs, but, rather,
increased it to three. Nor can it be said, so he further
maintains, that he had not been "reappointed" (under the
second paragraph of the section) because "reappointment
therein presupposes that the position to which it refers is a
new one in lieu of that which has been abolished or although
an existing one, has absorbed that which has been
abolished." He claims, finally, that under the Provisional
Constitution, the power to dismiss public officials without
cause ended on February 25, 1987, and that thereafter, public
officials enjoyed security of tenure under the provisions of the
1987 Constitution.
Vicente Feria asserts his security of tenure and that he cannot
be said to be covered by Section 59 of Executive Order No.
127, having been appointed on April 22, 1986 - during the
effectivity of the Provisional Constitution. He adds that under
Executive Order No. 39, "ENLARGING THE POWERS AND
FUNCTIONS OF THE COMMISSIONER OF CUSTOMS," the
Commissioner of Customs has the power "to appoint all
Bureau personnel, except those appointed by the President,"
and that his position, which is that of a Presidential appointee,
is beyond the control of Commissioner Mison for purposes of
reorganization.
Provisions of Section 16, Article XVIII (Transitory Provisions)
explicitly authorize the removal of career civil service
employees "not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the
reorganization following the ratification of this Constitution.
For this reason, Mison posits, claims of violation of security of
tenure are allegedly no defense. That contrary to the
employees' argument, Section 59 of Executive Order No. 127
is applicable (in particular, to Dario and Feria), in the sense
that retention in the Bureau, under the Executive Order,
depends on either retention of the position in the new staffing
pattern or reappointment of the incumbent, and since the
dismissed employees had not been reappointed, they had
been considered legally separated. Moreover, Mison proffers
that under Section 59 incumbents are considered on holdover
status, "which means that all those positions were considered
vacant."
The Commissioner's two petitions are direct challenges to
three rulings of the Civil Service Commission: (1) the
Resolution, dated June 30, 1988, reinstating the 265 customs
employees above-stated; (2) the Resolution, dated
September 20, 1988, denying reconsideration; and (3) the
Resolution, dated November 16, 1988, reinstating five
employees.
ISSUE: WON Section 16 of Article XVIII of the 1987
Constitution is a grant of a license upon the Government to
remove career public officials it could have validly done under
an "automatic"-vacancy-authority and to remove them without
rhyme or reason. (NO)
RATIO: The State can still carry out reorganizations provided
that it is done in good faith. Removal of career officials without
cause cannot be done after the passing of the 1987
Constitution.
Section 16 Article XVIII, of the 1987 Constitution:
“Sec. 16. Career civil service employees separated from the
service not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the
reorganization following the ratification of this Constitution
shall be entitled to appropriate separation pay and to
retirement and other benefits accruing to them under the laws
of general application in force at the time of their separation.
In lieu thereof, at the option of the employees, they may be
considered for employment in the Government or in any of its
subdivisions, instrumentalities, or agencies, including
government-owned or controlled corporations and their
subsidiaries. This provision also applies to career officers
whose resignation, tendered in line with the existing policy.”
The above is a mere recognition of the right of the
Government to reorganize its offices, bureaus, and
instrumentalities. Under Section 4, Article XVI, of the 1935
Constitution. Transition periods are characterized by
provisions for "automatic" vacancies. They are dictated by the
need to hasten the passage from the old to the new
Constitution free from the "fetters" of due process and security
of tenure.
Since 1935, transition periods have been characterized by
provisions for "automatic" vacancies. We take the silence of
the 1987 Constitution on this matter as a restraint upon the
Government to dismiss public servants at a moment's notice.
If the present Charter envisioned an "automatic" vacancy, it
should have said so in clearer terms. Plainly the concern of
Section 16 is to ensure compensation for "victims" of
constitutional revamps - whether under the Freedom or
existing Constitution - and only secondarily and impliedly, to
allow reorganization.
In order to be entitled to the benefits granted under Section 16
of Article XVIII of the Constitution of 1987, two requisites, one
negative and the other positive, must concur, to wit: 1. The
separation must not be for cause, and 2. The separation must
be due to any of the three situations mentioned.
By its terms, the authority to remove public officials under the
Provisional Constitution ended on February 25, 1987,
advanced by jurisprudence to February 2, 1987. It can only
mean, then, that whatever reorganization is taking place is
upon the authority of the present Charter, and necessarily,
upon the mantle of its provisions and safeguards. Hence, it
cannot be legitimately stated that we are merely continuing
what the revolutionary Constitution of the Revolutionary
Government had started. We are through with reorganization
under the Freedom Constitution - the first stage. We are on
the second stage - that inferred from the provisions of Section
16 of Article XVIII of the permanent basic document. After
February 2, 1987, incumbent officials and employees have
acquired security of tenure.
The present organic act requires that removals "not for cause"
must be as a result of reorganization. As we observed, the
Constitution does not provide for "automatic" vacancies. It
must also pass the test of good faith. As a general rule, a
reorganization is carried out in "good faith" if it is for the
purpose of economy or to make bureaucracy more efficient.
In that event, no dismissal (in case of a dismissal) or
separation actually occurs because the position itself ceases
to exist. And in that case, security of tenure would not be a
Chinese wall. Be that as it may, if the "abolition," which is
nothing else but a separation or removal, is done for political
reasons or purposely to defeat security of tenure, or otherwise
not in good faith, no valid "abolition" takes place and whatever
"abolition" is done, is void ab initio. There is an invalid
"abolition" as where there is merely a change of nomenclature
of positions, or where claims of economy are belied by the
existence of ample funds.
The Court finds that Commissioner Mison did not act in good
faith since after February 2, 1987 no perceptible restructuring
of the Customs hierarchy - except for the change of personnel
- has occurred, which would have justified (all things being
equal) the contested dismissals. There is also no showing that
legitimate structural changes have been made - or a
reorganization actually undertaken, for that matter - at the
Bureau since Commissioner Mison assumed office, which
would have validly prompted him to hire and fire employees.
With respect to Executive Order No. 127, Commissioner
Mison submits that under Section 59 thereof, "Those
incumbents whose positions are not included therein or who
are not reappointed shall be deemed separated from the
service." He submits that because the 394 removed personnel
have not been "reappointed," they are considered terminated.
To begin with, the Commissioner's appointing power is
subject to the provisions of Executive Order No. 39. Under
Executive Order No. 39, the Commissioner of Customs may
"appoint all Bureau personnels except those appointed by the
President." Thus, with respect to Deputy Commissioners
Cesar Dario and Vicente Feria, Jr., Commissioner Mison
could not have validly terminated them, they being
Presidential appointees.
That Customs employees, under Section 59 of Executive
Order No. 127 had been on a mere holdover status cannot
mean that the positions held by them had become vacant. The
occupancy of a position in a holdover capacity was conceived
to facilitate reorganization and would have lapsed on 25
February 1987 (under the Provisional Constitution), but
advanced to February 2, 1987 when the 1987 Constitution
became effective. After the said date the provisions of the
latter on security of tenure govern.
DISPOSITIVE: Resolutions of the CSC are affirmed. Petitions
of employees are GRANTED. Petitions of Mison are
DISMISSED. Commissioner of Customs is ordered to
REINSTATE employees he removed and those he appointed
as replacements are ordered to VACATE their posts subject
to payment of lawful benefits.
Dario v. Mison
August 9, 1989
G.R. No. 81954
Petitioner: Dario
Respondent: Mison (Comm of Customs); Jayme (Sec of
Finance); Macaraig (Exec Sec)
Ponente: Sarmiento
FACTS:
P. Cory Aquino issued Proclamation No. 3 in 1986. It provided
for priority for the reorganization of the government,
eradication of unjust and oppressive structures, and all
iniquitous vestiges of the previous regime.
3 days later, she issued EO 17, “prescribing the rules and
regulations for the implementation of section 2, article III of the
freedom constitution.” This recognized the unnecessary
anxiety and demoralization among the deserving officials and
employees and prescribed grounds for
separation/replacement of personnel.
EO 127: Reorganizing the Ministry of Finance.
Commissioner Mison issued Memorandum “Guidelines on the
Implementation of Regorganization Orders.”
Mison sent notices to several customs officials, stating that
those incumbents whose positions are not carried in the new
reorganization pattern are deemed separated from service,
and that they have been terminated.
CSC ordered reinstatement.

In 1988, RA 6656 was enacted: “an act to protect the security
of tenure of civil service employees in the implementation of
government reorganization.” It mandated the
reinstatement/reappointment of officers/employees whose
separation violated its provisions.
Terminated employees filed this case.
There is no question that the admin may validly carry out a
government reorganization. The issue of the parties are as to
the nature and extent.
Argument of Mison: Transitory Provision in Article XVIII,
Section 16 explicitly authorizes the removal of career civil
service employees not for cause but as a result of
reorganization pursuant to Proclamation 3. Thus, the
reorganization under EO 127 may continue even after the
ratification of the Constitution, and employees may be
separated from service without cause as a result of the
reorganization.
ISSUE:
WON transitory provision in 1987 Constitution allows the
government to remove career public officials it could have
validly done under an automatic vacancy authority and without
rhyme or reason. (since 1935 transition periods have been
characterized by provisions for automatic vacancies)
HELD: NO.
RATIO:
The 1987 Constitution is silent on the matter. This is restraint
upon the gov’t to dismiss public servants at a moment’s notice.
The other constitutions were express/clear in the matter of
automatic vacancy, unlike the present constitution.
The authority to remove public officials under the provisional
constitution ended on February 25, 1987 (Feb 2, 1987).
Even 1987 Consti deliberations confirm this.
Esguerra and Palma-Fernandez cases: After Feb 2, 1987,
incumbent officials and employees acquired security of tenure,
which is not a deterrent against separation by reorganization
under quondam fundamental law…
Also, state is concerned to ensure that reorganization is no
purge.
Mayor vs Macaraig
G.R. No. 87211
March 5, 1991 (5 consolidated cases assailing RA 6715)
JOVENCIO L. MAYOR petitioner, vs. HON. CATALINO
MACARAIG, HON. GUILLERMO CARAGUE, HON.
RIZALINA CAJUCOM, HON. FRANKLIN DRILON,
respondents. LOURDES A. SALES and RICARDO OLAIREZ,
petitioners-intervenors.
FACTS:
Jovencio Mayor, a member of the Philippine Bar, was
appointed Labor Arbiter in 1986 after he had, according to him,
met the prescribed qualifications and passed a “rigid
screening process.” Fearing that he would be removed from
office on account of the expected reorganization, he filed in
this court the action assailing RA 6715. (This case involves 5
consolidated cases of civil actions that involve 1 common,
fundamental issue: constitutionality of RA 6715.)
RA 6715: declares vacant "all positions of the Commissioners,
Executive Labor Arbiters and Labor Arbiters of the National
Labor Relations Commission," and operates to remove the
incumbents upon the appointment and qualification of their
successors. So basically, the petitioners here were removed
from office pursuant to RA 6715.
ISSUE: W/N the petitioners’ removal under RA 6715 is
unconstitutional YES
HELD:
Security of tenure is a protected right under the Constitution.
The right is secured to all employees in privates as well as in
public employment. "No officer or employee in the civil
service," the Constitution declares, "shall be removed or
suspended except for cause provided by law."
Now, a recognized cause for several or termination of
employment of a Government officer or employee is the
abolition by law of his office as a result of reorganization
carried out by reason of economy or to remove redundancy of
functions, or clear and explicit constitutional mandate for such
termination of employment.
Abolition of an office is obviously not the same as the
declaration that that office is vacant. While it is undoubtedly a
prerogative of the legislature to abolish certain offices, it
cannot be conceded the power to simply pronounce those
offices vacant and thereby effectively remove the occupants
or holders thereof from the civil service. Such an act would
constitute, on its face, an infringement of the constitutional
guarantee of security of tenure, and will have to be struck
down on that account. It cannot be justified by the professed
"need to professionalize the higher levels of officialdom
invested with adjudicatory powers and functions, and to
upgrade their qualifications, ranks, and salaries or
emoluments."
No express or implied abolition of the offices of petitioners,
therefore, their removal is unconstitutional It is immediately
apparent that there is no express abolition in RA 6715 of the
petitioners' positions. So, justification must be sought, if at all,
in an implied abolition thereof; i.e., that resulting from an
irreconcilable inconsistency between the nature, duties and
functions of the petitioners' offices under the old rules and
those corresponding thereof under the new law. An
examination of the relevant provisions of RA 6715, with a view
to discovering the changes thereby effected on the nature,
composition, powers, duties and functions of the Commission
and the Commissioners, the Executive Director, the Deputy
Executive Director, and the labor Arbiters under the prior
legislation, fails to disclose such essential inconsistencies.
There are no irreconcilable inconsistency in the nature, duties
and functions of the petitioners’ officers under the old law and
new law. – no implied abolition of the offices.