G.R. No.

80508 January 30, 1990 EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA SEVILLA, QUERUBIN BILLONES, ESTELITA BILLONES, GORGONIA MACARAEG, LAUREANA JOAQUIN, CRESTITA LICUP, SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE, ERLINDA RESTORAN, VERIDIAN FLORA, ROSELA CONDE, SOSIMA COSTO, JOSEFINA ALDIANO, ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA ESTARES, BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL, ERIBERTO MATEO, FRANCISCO HORTILLANO, ANATALIA PESIMO, LOSENDO GARBO, VIRGINIA LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA. RECHILDA SABALZA, EDITHA MAAMO, ELENIETA BANOSA, ALEXANDER LABADO, ANDREW GO, WYNEFREDO REYES, ROSARIO SESPENE, ROSA MARTIN and JAIME BONGAT,petitioners, vs. MAJ. GEN. RENATO DE VILLA, BRIG. GEN. ALEXANDER AGUIRRE, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS GARCIA, respondents. GUTIERREZ, JR., J.: This is a petition for prohibition with preliminary injunction to prohibit the military and police officers represented by public respondents from conducting "Areal Target Zonings" or "Saturation Drives" in Metro Manila. The forty one (41) petitioners state that they are all of legal age, bona fide residents of Metro Manila and taxpayers and leaders in their respective communities. They maintain that they have a common or general interest in the preservation of the rule of law, protection of their human rights and the reign of peace and order in their communities. They claim to represent "the citizens of Metro Manila who have similar interests and are so numerous that it is impracticable to bring them all before this Court." The public respondents, represented by the Solicitor General, oppose the petition contending inter alia that petitioners lack standing to file the instant petition for they are not the proper parties to institute the action. According to the petitioners, the following "saturation drives" were conducted in Metro Manila: 1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena Streets, Tondo, Manila. 2. June l9, 1987 at about l0:00 PM in Mata Street, Panday Pira Extension and San Sebastian Street, Tondo, Manila. 3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila. 4. August 11 to l3, 1987 between 11:00 PM and 2:00 AM in six blocks along Aroma Beach up to Happy Land, Magsaysay Village, Tondo, Manila. 5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and Pacheco Street, Tondo, Manila. 6. August 28, 1987 at l0:30 PM, in Block 34, Dagat-dagatan Navotas, Metro Manila. 7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village, Tondo, Manila. 8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon City. 9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila. 10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International Airport, Pasay City. 11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta. Mesa, Manila. 12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro Manila. According to the petitioners, the "areal target zonings" or saturation drives" are in critical areas pinpointed by the military and police as places where the subversives are hiding. The arrests range from seven (7) persons during the July 20 saturation drive in Bangkusay, Tondo to one thousand five hundred (1,500) allegedly apprehended on November 3 during the drive at Lower Maricaban, Pasay City. The petitioners claim that the saturation drives follow a common pattern of human rights abuses. In all these drives, it is alleged that the following were committed:

1. Having no specific target house in mind, in the dead of the night or early morning hours, police and military units without any search warrant or warrant of arrest cordon an area of more than one residence and sometimes whole barangay or areas of barangay in Metro Manila. Most of them are in civilian clothes and without nameplates or identification cards. 2. These raiders rudely rouse residents from their sleep by banging on the walls and windows of their homes, shouting, kicking their doors open (destroying some in the process), and then ordering the residents within to come out of their respective residences. 3. The residents at the point of high-powered guns are herded like cows, the men are ordered to strip down to their briefs and examined for tattoo marks and other imagined marks. 4. While the examination of the bodies of the men are being conducted by the raiders, some of the members of the raiding team force their way into each and every house within the cordoned off area and then proceed to conduct search of the said houses without civilian witnesses from the neighborhood. 5. In many instances, many residents have complained that the raiders ransack their homes, tossing about the residents' belongings without total regard for their value. In several instances, walls are destroyed, ceilings are damaged in the raiders' illegal effort to 'fish' for incriminating evidence. 6. Some victims of these illegal operations have complained with increasing frequency that their money and valuables have disappeared after the said operations. 7. All men and some women who respond to these illegal and unwelcome intrusions are arrested on the spot and hauled off to waiting vehicles that take them to detention centers where they are interrogated and 'verified.' These arrests are all conducted without any warrants of arrest duly issued by a judge, nor under the conditions that will authorize warrantless arrest. Some hooded men are used to fingerpoint suspected subversives. 8. In some instances, arrested persons are released after the expiration of the period wherein they can be legally detained without any charge at all. In other instances, some arrested persons are released without charge after a few days of arbitrary detention. 9. The raiders almost always brandish their weapons and point them at the residents during these illegal operations. 10. Many have also reported incidents of on-the-spotbeatings, maulings and maltreatment. 11. Those who are detained for further 'verification' by the raiders are subjected to mental and physical torture to extract confessions and tactical information. (Rollo, pp. 2-4) The public respondents stress two points in their Comment which was also adopted as their Memorandum after the petition was given due course. First, the respondents have legal authority to conduct saturation drives. And second, they allege that the accusations of the petitioners about a deliberate disregard for human rights are total lies. Insofar as the legal basis for saturation drives is concerned, the respondents cite Article VII, Section 17 of the Constitution which provides: The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied ) They also cite Section 18 of the same Article which provides: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. ...

There can be no question that under ordinary circumstances, the police action of the nature described by the petitioners would be illegal and blantantly violative of the express guarantees of the Bill of Rights. If the military and the police must conduct concerted campaigns to flush out and catch criminal elements, such drives must be consistent with the constitutional and statutory rights of all the people affected by such actions. There is, of course, nothing in the Constitution which denies the authority of the Chief Executive, invoked by the Solicitor General, to order police actions to stop unabated criminality, rising lawlessness, and alarming communist activities. The Constitution grants to Government the power to seek and cripple subversive movements which would bring down constituted authority and substitute a regime where individual liberties are suppressed as a matter of policy in the name of security of the State. However, all police actions are governed by the limitations of the Bill of Rights. The Government cannot adopt the same reprehensible methods of authoritarian systems both of the right and of the left, the enlargement of whose spheres of influence it is trying hard to suppress. Our democratic institutions may still be fragile but they are not in the least bit strengthened through violations of the constitutional protections which are their distinguishing features. In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court stated: One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign lord and all the forces of the Crown. That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably, continues to dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy this right after the ordeal of the past despotism. We must cherish and protect it all the more now because it is like a prodigal son returning. That right is guaranteed in the following provisions of Article IV of the 1973 Constitution: SEC. 3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. xxx xxx xxx Only last year, the Court again issued this reminder in 20th Century Fox Film Corporation v. Court of Appeals (164 SCRA 655; 660- 661 [1988]): This constitutional right protects a citizen against wanton and unreasonable invasion of his privacy and liberty as to his person, papers and effects. We have explained in the case of People vs. Burgos(144 SCRA 1) citing Villanueva v. Querubin (48 SCRA 345) why the right is so important: It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house,

however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Cf. Schmerber v. California, 384 US 757 [1966], Brennan J. and Boyd v. United States, 11 6 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966]), could fitly characterize constitutional right as the embodiment of a spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards. (ibid, p. 74.) The decision of the United States Supreme Court in Rochin v. California, (342 US 165; 96 L. Ed. 183 [1952]) emphasizes clearly that police actions should not be characterized by methods that offend a sense of justice. The court ruled: Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation. It is significant that it is not the police action perse which is impermissible and which should be prohibited. Rather, it is the procedure used or in the words of the court, methods which "offend even hardened sensibilities." InBreithaupt v. Abram (352 US 432, 1 L. Ed. 2nd 448 [1957]), the same court validated the use of evidence, in this case blood samples involuntarily taken from the petitioner, where there was nothing brutal or offensive in the taking. The Court stated: Basically the distinction rests on the fact that there is nothing 'brutal' or 'offensive' in the taking of a sample of blood when done, as in this case, under the protective eye of a physician. To be sure, the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional light; and certainly the rest was administered here would not be considered offensive by even the most delicate. Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of 'decency and fairness that has been woven by common experience into the fabric of acceptable conduct.... The individual's right to immunity from such invasion of his body was considered as "far outweighed by the value of its deterrent effect" on the evil sought to be avoided by the police action. It is clear, therefore, that the nature of the affirmative relief hinges closely on the determination of the exact facts surrounding a particular case. The violations of human rights alleged by the petitioners are serious. If an orderly procedure ascertains their truth, not only a writ of prohibition but criminal prosecutions would immediately issue as a matter of course. A persistent pattern of wholesale and gross abuse of civil liberties, as alleged in the petition, has no place in civilized society. On the other hand, according to the respondents, the statements made by the petitioners are a complete lie. The Solicitor General argues: This a complete lie. Just the contrary, they had been conducted with due regard to human rights. Not only that, they were intelligently and carefully planned months ahead of

the actual operation. They were executed in coordination with barangay officials who pleaded with their constituents to submit themselves voluntarily for character and personal verification. Local and foreign correspondents, who had joined these operations, witnessed and recorded the events that transpired relative thereto. (After Operation Reports: November 5, 1987, Annex 12; November 20, 1987, Annex 13; November 24, 1987, Annex 14). That is why in all the drives so far conducted, the alleged victims who numbered thousands had not themselves complained. In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo, President Aquino branded all accusations of deliberate disregard for human rights as 'total lies'. Here are excerpts from her strongest speech yet in support of the military: All accusations of a deliberate disregard for human rights have been shownup to be total lies. ...To our soldiers, let me say go out and fight, fight with every assurance that I will stand by you through thick and thin to share the blame, defend your actions, mourn the losses and enjoy with you the final victory that I am certain will be ours. You and I will see this through together. I've sworn to defend and uphold the Constitution. We have wasted enough time answering their barkings for it is still a long way to lasting peace. . . . The dangers and hardships to our men in the field are great enough as it is without having them distracted by tills worthless carping at their backs. Our counter-insurgency policy remains the same: economic development to pull out the roots-and military operations to slash the growth of the insurgency. The answer to terror is force now. Only feats of arms can buy us the time needed to make our economic and social initiatives bear fruit. . . Now that the extreme Right has been defeated, I expect greater vigor in the prosecution of the war against the communist insurgency, even as we continue to watch our backs against attacks from the Right. (Philippine Star, January 27, 1988, p. 1, Annex 15; emphasis supplied) Viewed in the light of President Aquino's observation on the matter, it can be said that petitioners misrepresent as human rights violations the military and police's zealous vigilance over the people's right to live in peace and safety. (Rollo, pp. 36-38) Herein lies the problem of the Court. We can only guess the truth. Everything before us consists of allegations. According to the petitioners, more than 3,407 persons were arrested in the saturation drives covered by the petition. No estimates are given for the drives in Block 34, Dagat-dagatan, Navotas; Apelo Cruz Compound, Pasig; and Sun Valley Drive near the Manila International Airport area. Not one of the several thousand persons treated in the illegal and inhuman manner described by the petitioners appears as a petitioner or has come before a trial court to present the kind of evidence admissible in courts of justice. Moreover, there must have been tens of thousands of nearby residents who were inconvenienced in addition to the several thousand allegedly arrested. None of those arrested has apparently been charged and none of those affected has apparently complained. A particularly intriguing aspect of the Solicitor General's comments is the statement that local and foreign co-respondents actually joined the saturation drives and witnessed and recorded the events. In other words, the activities sought to be completely proscribed were in full view of media. The sight of hooded men allegedly being used to fingerpoint suspected subversives would have been good television copy. If true, this was probably effected away from the ubiquitous eye of the TV cameras or, as the Solicitor General contends, the allegation is a "complete lie."

The latest attempt to stage a coup d'etat where several thousand members of the Armed Forces of the Philippines sought to overthrow the present Government introduces another aspect of the problem and illustrates quite clearly why those directly affected by human rights violations should be the ones to institute court actions and why evidence of what actually transpired should first be developed before petitions are filed with this Court. Where there is large scale mutiny or actual rebellion, the police or military may go in force to the combat areas, enter affected residences or buildings, round up suspected rebels and otherwise quell the mutiny or rebellion without having to secure search warrants and without violating the Bill of Rights. This is exactly what happened in the White Plains Subdivision and the commercial center of Makati during the first week of December, 1989. The areal target zonings in this petition were intended to flush out subversives and criminal elements particularly because of the blatant assassinations of public officers and police officials by elements supposedly coddled by the communities where the "drives" were conducted. It is clear from the pleadings of both petitioners and respondents, however, that there was no rebellion or criminal activity similar to that of the attempted coup d' etats. There appears to have been no impediment to securing search warrants or warrants of arrest before any houses were searched or individuals roused from sleep were arrested. There is no strong showing that the objectives sought to be attained by the "areal zoning" could not be achieved even as the rights of squatter and low income families are fully protected. Where a violation of human rights specifically guaranteed by the Constitution is involved, it is the duty of the court to stop the transgression and state where even the awesome power of the state may not encroach upon the rights of the individual. It is the duty of the court to take remedial action even in cases such as the present petition where the petitioners do not complain that they were victims of the police actions, where no names of any of the thousands of alleged victims are given, and where the prayer is a general one to stop all police "saturation drives," as long as the Court is convinced that the event actually happened. The Court believes it highly probable that some violations were actually committed. This is so inspite of the alleged pleas of barangay officials for the thousands of residents "to submit themselves voluntarily for character and personal verification." We cannot imagine police actions of the magnitude described in the petitions and admitted by the respondents, being undertaken without some undisciplined soldiers and policemen committing certain abuses. However, the remedy is not to stop all police actions, including the essential and legitimate ones. We see nothing wrong in police making their presence visibly felt in troubled areas. Police cannot respond to riots or violent demonstrations if they do not move in sufficient numbers. A show of force is sometimes necessary as long as the rights of people are protected and not violated. A blanket prohibition such as that sought by the petitioners would limit all police actions to one on one confrontations where search warrants and warrants of arrests against specific individuals are easily procured. Anarchy may reign if the military and the police decide to sit down in their offices because all concerted drives where a show of force is present are totally prohibited. The remedy is not an original action for prohibition brought through a taxpayers' suit. Where not one victim complains and not one violator is properly charged, the problem is not initially for the Supreme Court. It is basically one for the executive departments and for trial courts. Well meaning citizens with only second hand knowledge of the events cannot keep on indiscriminately tossing problems of the executive, the military, and the police to the Supreme Court as if we are the repository of all remedies for all evils. The rules of constitutional litigation have been evolved for an orderly procedure in the vindication of rights. They should be followed. If our policy makers sustain the contention of the military and the police that occasional saturation drives are essential to maintain the stability of government and to insure peace and order, clear policy guidelines on the behavior of soldiers and policemen must not only be evolved, they should also be enforced. A method of pinpointing human rights abuses and identifying violators is necessary. The problem is appropriate for the Commission on Human Rights. A high level conference should bring together the heads of the Department of Justice, Department of National Defense and the operating heads of affected agencies and institutions to devise procedures for the prevention of abuses.

Under the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom we can order prosecuted. In the absence of clear facts ascertained through an orderly procedure, no permanent relief can be given at this time. Further investigation of the petitioners' charges and a hard look by administration officials at the policy implications of the prayed for blanket prohibition are also warranted. In the meantime and in the face of a prima facie showing that some abuses were probably committed and could be committed during future police actions, we have to temporarily restrain the alleged banging on walls, the kicking in of doors, the herding of half-naked men to assembly areas for examination of tattoo marks, the violation of residences even if these are humble shanties of squatters, and the other alleged acts which are shocking to the conscience. WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of Manila, Malabon, and Pasay City where the petitioners may present evidence supporting their allegations and where specific erring parties may be pinpointed and prosecuted. Copies of this decision are likewise forwarded to the Commission on Human Rights, the Secretary of Justice, the Secretary of National Defense, and the Commanding General PC-INP for the drawing up and enforcement of clear guidelines to govern police actions intended to abate riots and civil disturbances, flush out criminal elements, and subdue terrorist activities. In the meantime, the acts violative of human rights alleged by the petitioners as committed during the police actions are ENJOINED until such time as permanent rules to govern such actions are promulgated. SO ORDERED.

G.R. No. L-54558 May 22, 1987 EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ, CARLOS LAZARO, REYNALDO MACLANG, MAGDALENA DE LOS SANTOS-MACLANG, TEODORICO N. DIESMOS, RENE J. MARCIANO, DANILO R. DE OCAMPO, VICTORIANO C. AMADO and MAC ACERON, petitioners, vs. MILITARY COMMISSION NO. 34, THE TRIAL COUNSEL OF MILITARY COMMISSION NO. 34, and THE MINISTER OF NATIONAL DEFENSE, respondents. No. L-69882 May 22, 1987 EDUARDO OLAGUER, OTHONIEL JIMENEZ, REYNALDO MACLANG and ESTER MISA-JIMENEZ, petitioners, vs. THE CHIEF OF STAFF, AFP, MILITARY COMMISSION NO. 34, JUDGE ADVOCATE GENERAL, AFP, MINISTER OF NATIONAL DEFENSE and THE DIRECTOR OF PRISONS, respondents. Sabino Padilla, Jr. and Jose B. Puerto for petitioner Othoniel Jimenez. Fulgencio Factoran for petitioners Maclang and Magdalena de los Santos-Maclang Rene Saguisag for petitioner Mac Aceron. Joaquin Misa for petitioner Ester Misa-Jimenez. Jejomar Binay for petitioners Reynaldo Maclang and Magdalena de los Santos-Maclang. Jaime Villanueua for petitioner Danilo R. de Ocampo. Joker P. Arroyo, Lorenzo M. Tanada and Rene Sarmiento for petitioners Eduardo Olaguer and Othoniel Jimenez. Wigberto Tanada for petitioners Olaguer and Maclang GANCAYCO, J.: Filed with this Court are two Petitions wherein the fundamental question is whether or not a military tribunal has the jurisdiction to try civilians while the civil courts are open and functioning. The two Petitions have been consolidated inasmuch as the issues raised therein are interrelated. On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V. Jimenez, Ester Misa-Jimenez, Carlos Lazaro, Reynaldo Maclang, Magdalena De Los Santos Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R. De Ocampo and Victoriano C. Amado were arrested by the military authorities. They were all initially detained at Camp Crame in Quezon City. They were subsequently transferred to the detention center at Camp Bagong Diwa in Bicutan except for petitioner Olaguer who remained in detention at Camp Crame. Petitioner Mac Aceron voluntarily surrendered to the authorities sometime in June, 1980 and was, thereafter, also incarcerated at Camp Bagong Diwa. All of the petitioners are civilians. On May 30, 1980, the petitioners were charged for subversion 1 upon the recommendation of the respondent Judge Advocate General and the approval of the respondent Minister of National Defense. 2 The case was designated as Criminal Case No. MC-34-1. On June 13. 1980, the respondent Chief of Staff of the Armed Forces of the Philippines 3 created the respondent Military Commission No 34 to try tile criminal case filed against the petitioners. 4 On July 30, 1980, an amended charge sheet was filed for seven (7) offenses, namely: (1) unlawful possession of explosives and incendiary devices; (2) conspiracy to assassinate President, and Mrs. Marcos; (3) conspiracy to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roo and Onofre Corpus; (5) arson of nine buildings; (6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and Generals Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit rebellion, and inciting to rebellion. 5 Sometime thereafter, trial ensued. In the course of the proceedings, particularly on August 19, 1980, the petitioners went to this Court and filed the instant Petition for prohibition and habeas corpus." 6 They sought to enjoin the respondent Military Commission No. 34 from proceeding with the trial of their case. They likewise sought their release from detention by way of a writ of habeas corpus. The thrust of their arguments is that military commissions have no jurisdiction to try civilians for offenses alleged to

have been committed during the period of martial law. They also maintain that the proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of law. On September 23, 1980, the respondents filed their Answer to the Petition. 7 On November 20, 1980, the petitioners submmitted their reply to the Answer. 8 In a Motion filed with this Court on July 25, 1981, petitioner Olaguer requested that the Petition be considered withdrawn as far as he is concerned. 9 In the Resolution of this Court dated July 30, 1981, the said prayer was granted." 10 On August 31, 1984, the respondents filed a Rejoinder to the Reply submitted by the petitioners. 11 On December 4, 1984, pending the resolution of the Petition, the respondent Military Commission No. 34 passed sentence convicting the petitioners and imposed upon them the penalty of death by electrocution. Thus, on February 14, 1985, petitioners Olaguer, Maclang and Othoniel and Ester Jimenez went to this Court and filed the other instant Petition, this time for habeas corpus, certiorari, prohibition and mandamus. They also sought the issuance of a writ of preliminary injunction. 12 The respondents named in the Petition are the Chief of Staff of the Armed Forces of the Philippines, Military Commission No. 34, the Judge Advocate General, the Minister of National Defense and the Director of the Bureau of Prisons. In sum, the second Petition seeks to enjoin the said respondents from taking any further action on the case against the petitioners, and from implementing the judgment of conviction rendered by the respondent Military Commission No. 34 for the reason that the same is null and void. The petitioners also seek the return of all property taken from them by the respondents concerned. Their other arguments in the earlier Petition are stressed anew. On August 9, 1985, the respondents filed their Answer to the Petition. 13 On September 12, 1985, this Court issued a temporary restraining order enjoining the respondents from executing the Decision of the respondent Military Commission No. 34 14 On February 18, 1986, the petitioners submitted an extensive Brief. 15 Thereafter, and in due time, the cases were submitted for decision. In resolving these two Petitions, We have taken into account several supervening events which have occurred hitherto, to wit (1) On January 17, 1981, President Ferdinand E. Marcos issued Proclamation No. 2045 officially lifting martial law in the Philippines. The same Proclamation revoked General Order No. 8 (creating military tribunals) and directed that "the military tribunals created pursuant thereto are hereby dissolved upon final determination of case's pending therein which may not be transferred to the civil courts without irreparable prejudice to the state in view of the rules on double jeopardy, or other circumstances which render prosecution of the cases difficult, if not impossible."; and (2) Petitioner Ester Misa-Jimenez was granted provisional liberty in January, 1981. On the other hand, petitioners Eduardo Olaguer and Othoniel Jimenez obtained provisional liberty on January 23, 1986. 16 The rest of the petitioners have been released sometime before or after President Corazon C. Aquino assumed office in February, 1986. The sole issue in habeas corpus proceedings is detention. 17 When the release of the persons in whose behalf the application for a writ of habeas corpus was filed is effected, the Petition for the issuance of the writ becomes moot and academic. 18 Inasmuch as the herein petitioners have been released from their confinement in military detention centers, the instant Petitions for the issuance of a writ of habeas corpus should be dismissed for having become moot and academic. We come now to the other matters raised in the two Petitions. The main issue raised by the petitioners is whether or not military commissions or tribunals have the jurisdiction to try civilians for offenses allegedly committed during martial law when civil courts are open and functioning. The petitioners maintain that military commissions or tribunals do not have such jurisdiction and that the proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional right to due process of law. The respondents, however, contend otherwise. The issue on the jurisdiction of military commissions or tribunals to try civilians for offenses allegedly committed before, and more particularly during a period of martial law, as well as the

other issues raised by the petitioners, have been ruled upon by a divided Supreme Court in Aquino, Jr. v. Military Commission No. 2. 19 The pertinent portions of the main opinion of the Court are as follows We hold that the respondent Military Commission No. 2 has been lawfully constituted and validly vested with jurisdiction to hear the cases against civilians, including the petitioner. l. The Court has previously declared that the proclamation of Martial Law ... on September 21, 1972, ... is valid and constitutional and that its continuance is justified by the danger posed to the public safety. 20 2. To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily possesses broad authority compatible with the imperative requirements of the emergency. On the basis of this, he has authorized in General Order No. 8 . . . the Chief of Staff, Armed Forces of the Philippines, to create military tribunals to try and decide cases "of military personnel and such other cases as may be referred to them." In General Order No. 12 ... , the military tribunals were vested with jurisdiction "exclusive of the civil courts," among others, over crimes against public order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other crimes which, in the face of the emergency, are directly related to the quelling of the rebellion and preservation of the safety and security of the Republic. ... These measures he had the authority to promulgate, since this Court recognized that the incumbent President (President Marcos), under paragraphs 1 and 2 of Section 3 of Article XVII of the new (1973) Constitution, had the authority to "promulgate proclamations, orders and decrees during the period of martial law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people and to the institution of reforms to prevent the resurgence of the rebellion or insurrection or secession or the threat thereof ... " 21 3. Petitioner nevertheless insists that he being a civilian, his trial by military commission deprives him of his right to due process, since in his view the due process guaranteed by the Constitution to persons accused of "ordinary" crimes means judicial process. This argument ignores the reality of the rebellion and the existence of martial law. It is, of course, essential that in a martial law situation, the martial law administrator must have ample and sufficient means to quell the rebellion and restore civil order. Prompt and effective trial and punishment of offenders have been considered as necessary in a state of martial law, as a mere power of detention may be wholly inadequate for the exigency. 22 " ... martial law ... creates an exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offenses against the law of war, as well as those of a civil character, triable, ... by military tribunals. 23"Public danger warrants the substitution of executive process for judicial process." 24 . ... "The immunity of civilians from military jurisdiction must, however, give way in areas governed by martial law. When it is absolutely imperative for public safety, legal processes can be superseded and military tribunals authorized to exercise the jurisdiction normally vested in courts. 25 . ..." xxx xxx xxx 5. ... The guarantee of due process is not a guarantee of any particular form of tribunal in criminal cases. A military tribunal of competent jurisdiction, accusation in due form, notice and opportunity to defend and trial before an impartial tribunal, adequately meet the due process requirement. Due process of law does not necessarily mean a judicial proceeding in the regular courts. 26 ... This ruling has been affirmed, although not unanimously, in at least six other cases, to wit: Gumaua v.Espino, 27Buscayno v. Enrile, 28 Sison v. Enrile, 29 Luneta v. Special Military

Commission No. 1, 30 Ocampo v. Military Commission No. 25, 31 and Buscayno v. Military Commission Nos. 1, 2, 6 and 25. 32 These rulings notwithstanding, the petitioners anchor their argument on their prayer that the ruling in Aquino, Jr. be appraised anew and abandoned or modified accordingly. After a thorough deliberation on the matter, We find cogent basis for re-examining the same. Some recent pronouncements of this Court could be considered as attempts to either abandon or modify the ruling in Aquino, Jr. In De Guzman v. Hon. Leopando, et al., 33 an officer of the Armed Forces of the Philippines and several other persons were charged with Serious Illegal Detention before the Court of First Instance of Maguindanao sometime in October, 1982. The military officer sought to effect the transfer of the case against him to the General Court Martial for trial pursuant to the provisions of Presidential Decree No. 1850. The trial court disallowed such transfer for the reason that the said Decree is unconstitutional inasmuch as it violates the due process and equal protection clauses of the Constitution, as well as the constitutional provisions on social justice, the speedy disposition of cases, the republican form of government, the integrity and independence of the judiciary, and the supremacy of civilian authority over the military, When the matter was elevated to this Court by way of a Petition for certiorari, prohibition and mandamus, the Court decided that a ruling on the constitutional issues raised was not necessary. With the view that practical and procedural difficulties will result from the transfer sought, this Court resolved to dismiss the Petition for lack of merit. In Animas v. The Minister of National Defense, 34 a military officer and several civilians were charged with murder alleged to have been committed sometime in November, 1971. All of the said accused were recommended for prosecution before a military tribunal. in the course of the proceedings, the said accused went to this Court on a Petition for certiorari and challenged the jurisdiction of the military tribunal over their case. The petitioners contended that General Order No. 59 upon which the jurisdiction of the military tribunal is anchored refers only to the crime of illegal possession of firearms and explosives in relation to other crimes committed with a political complexion. They stressed that the alleged murder was devoid of any political complexion. This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transfer of the criminal proceedings to the civil courts after noting that with martial law having been lifted in the country in 1981, all cases pending before the military tribunals should, as a general rule, be transferred to the civil courts. The Court was also of the view that the crime alleged to have been committed did not have any political complexion. We quote the pertinent portions of the Decision of the Court, to wit Inspite or because of the ambiguous nature of ... civilian takeover of jurisdiction was concerned and notwithstanding the shilly-shallying and vacillation characteristic of its implementation, this Court relied on the enunciated policy of normalization in upholding the primacy of civil courts. This policy meant that as many cases as possible involving civilians being tried by military tribunals as could be transferred to civil courts should be turned over immediately. In case of doubt, the presumption was in favor of civil courts always trying civilian accused. xxx xxx xxx The crime for which the petitioners were charged was committed ... long before the proclamation of martial law. ... Now that it is already late 1986, and martial law is a thing of the past, hopefully never more to return, there is no more reason why a murder committed in 1971 should still be retained, at this time, by a military tribunal. We agree with the dissenting views of then Justice, now Chief Justice Claudio Teehankee 35 and Madame Justice Cecilia Munoz Palma 36 in Aquino, Jr. in so far as they hold that military commissions or tribunals have no jurisdiction to try civilians for alleged offenses when the civil courts are open and functioning. Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his life or his liberty), the accused shall be entitled to, among others, a trial. 37 The trial

contemplated by the due process clause of the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military process. Military commissions or tribunals, by whatever name they are called, are not courts within the Philippine judicial system. As explained by Justice Teehankee in his separate dissenting opinion... Civilians like (the) petitioner placed on trial for civil offenses under general law are entitled to trial by judicial process, not by executive or military process. Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law. Judicial power exists only in the courts, which have "exclusive power to hear and determine those matters which affect the life or liberty or property of a citizen. 38 Since we are not enemy-occupied territory nor are we under a military government and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning. 39 ... And in Toth v. Quarles, 40 the U.S. Supreme Court furtherstressed that the assertion of military authority over civilians cannot rest on the President's power as Commander-in-Chief or on any theory of martial law. xxx xxx xxx The U.S. Supreme Court aptly pointed out ... , in ruling that discharged army veterans (estimated to number more than 22.5 million) could not be rendered "helpless before some latter-day revival of old military charges" and subjected to military trials for offenses committed while they were in the military service prior to their discharge, that "the presiding officer at a court martial is not a judge whose objectivity and independence are protected by tenure and undiminished salary and nurtured by the judicial tradition, but is a military law officer. Substantially different rules of evidence and procedure apply in military trials. Apart from these differences, the suggestion of the possibility of influence on the actions of the court martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger." The late Justice Black ... added that (A) Court-Martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the over-all mechanism by which military discipline is preserved," and that exservicemen should be given "the benefits of a civilian court trial when they are actually civilians ... Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. Moreover, military tribunals pertain to the Executive Department of the Government and are simply instrumentalities of the executive power, provided by the legislature for the President as Commander-in-Chief to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives. 41 Following the principle of separation of powers underlying the existing constitutional organization of the Government of the Philippines, the power and the duty of interpreting the laws as when an individual should be considered to have violated the law) is primarily a function of the judiciary. 42 It is not, and it cannot be the function of the Executive Department, through the military authorities. And as long as the civil courts in the land remain open and are regularly functioning, as they do so today and as they did during the period of martial law in the country, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by the civil courts. 43 To have it otherwise would be a violation of the constitutional right to due process of the civilian concerned. In addition to this pronouncement, We take note of the observation made by the Solicitor General to the effect that the death penalty imposed upon the petitioners by the respondent Military

Commission No. 34 appears to have been rendered too hastily to the prejudice to the petitioners, and in complete disregard of their constitutional right to adduce evidence on their behalf. We quote the pertinent portions of the Manifestation submitted by the Solicitor General, to wit Prior to the session of December 4, 1984, when the respondent Commission rendered its sentence, petitioners have requested the prosecution to provide them with copies of the complete record of trial, including the evidences presented against them, but the prosecution dillydallied and failed to provide them with the document requested. According to petitioners, they needed the documents to adequately prepare for their defense. But a few days before December 4, 1984 the prosecution suddenly furnished them with certain transcripts of the proceedings which were not complete. Petitioner Othoniel Jimenez was scheduled to start with the presentation of his evidence on said date and he requested that his first witness be served with subpoena. The other petitioners, as agreed upon, were to present their evidence after the first one, Othoniel Jimenez, has finished presenting his evidence. But on that fateful day, December 4, 1984, the witness requested to be served with subpoena was not around, because as shown by the records, he was not even served with the requested subpoena. But in spite of that, respondent Military Commission proceeded to ask each one of the petitioners if they are ready to present their evidence. Despite their explanation that Othoniel Jimenez cannot proceed because the prosecution, which performs the duties and functions of clerk of court, failed to subpoena his witness, and that the other petitioners were not ready because it was not yet their turn to do so, the Commission abruptly decided that petitioners are deemed to have waived the presentation of evidence in their behalf, and considered the case submitted for resolution. After a recess of only twenty-five (25) minutes, the session was resumed and the Commission rendered its sentence finding petitioners guilty of all the charges against them and imposing upon them the penalty of death by electrocution. 44 Thus, even assuming arguendo that the respondent Military Commission No. 34 does have the jurisdiction to try the petitioners, the Commission should be deemed ousted of its jurisdiction when, as observed by the Solicitor General, the said tribunal acted in disregard of the constitutional rights of the accused. Indeed, it is well-settled that once a deprivation of a constitutional right is shown to exist, the tribunal that rendered the judgment in question is deemed ousted of jurisdiction. 45 Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially lifting martial law in the Philippines and abolishing all military tribunals created pursuant to the national emergency effectively divests the respondent Military Commission No. 34 (and all military tribunals for that matter) of its supposed authority to try civilians, including the herein petitioners. The main opinion in Aquino, Jr. is premised on the theory that military tribunals have the jurisdiction to try civilians as long as the period of national emergency (brought about by public disorder and similar causes) lasts. Undoubtedly, Proclamation No. 2045 is an acknowledgment on the part of the Executive Department of the Government that the national emergency no longer exists. Thereafter, following the theory relied upon in the main opinion, all military tribunals should henceforth be considered functus officio in their relationship with civilians. By virtue of the proclamation itself, all cases against civilians pending therein should eventually be transferred to the civil courts for proper disposition. The principle of double jeopardy would not be an obstacle to such transfer because an indispensable element of double jeopardy is that the first tribunal which tried the case must be of competent jurisdiction. 46 As discussed earlier, the military tribunals are devoid of the required jurisdiction. We take this opportunity to reiterate that as long as the civil courts in the land are open and functioning, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them. Whether or not martial law has been proclaimed throughout the country or

over a part thereof is of no moment. The imprimatur for this observation is found in Section 18, Article VII of the 1987 Constitution, to wit A state of martial law, does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. (Emphasis supplied.) This provision in the fundamental law is just one of the many steps taken by the Filipino people towards the restoration of the vital role of the judiciary in a free country-that of the guardian of the Constitution and the dispenser of justice without fear or favor. No longer should military tribunals or commissions exercise jurisdiction over civilians for offenses allegedly committed by them when the civil courts are open and functioning. No longer may the exclusive judicial power of the civil courts, beginning with the Supreme Court down to the lower courts 47 be appropriate by any military body or tribunal, or even diluted under the guise of a state of martial law, national security and other similar labels. At this juncture, We find it appropriate to quote a few paragraphs from the ponencia of Mr. Justice Gutierrez inAnimas v. The Minister of National Defense , 48 viz The jurisdiction given to military tribunals over common crimes and civilian(s) accused at a time when all civil courts were fully operational and freely functioning constitutes one of the saddest chapters in the history of the Philippine judiciary. The downgrading of judicial prestige caused by the glorification of military tribunals, the instability and insecurity felt by many members of the judiciary due to various causes both real and imagined, and the many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and determined efforts to cure. The immediate return to civil courts of all cases which properly belong to them is only a beginning. And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee had this to say I only wish to add that the great significance of our judgment in this case is that we reestablish and reinstate the fundamental principle based on civilian supremacy over the military as urged in vain in my dissent in the case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al. that "Civilians placed on trial for offenses under general law are entitled to trial by judicial process, not by executive or military process. Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law. Military commissions, or tribunals, are not courts and do not form part of the judicial system. Since we are not enemy-occupied territory nor are we under a military government and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning. xxx xxx xxx The terrible consequences of subjecting civilians to trial by military process is best exemplified in the sham military trial of the martyred former Senator Benigno S. Aquino, Jr., whereby he was deprived (1) by the summary ex parte investigation by the Chief prosecution staff of the JAGO of his right to be informed of the charges against him and of his right to counsel as expressly recognized by Section 20 of the Bill of Rights of the 1973 Constitution; (2) of his vested statutory right to a preliminary investigation of the subversion charges against him before the proper court of first instance as required under Section 5 of the Anti-Subversion Act, R.A. 1700 and of the other charges

against him before the proper civilian officials and to confront and crossexamine the witnesses against him under R.A. 5180; (3) of the right to be tried by judicial process, by the regular independent courts of justice, with all the specific constitutional, statutory and procedural safeguards embodied in the judicial process and presided over not by military officers; and (4) of the right to appeal to the regular appellate courts and to judicial review by this Court in the event of conviction and imposition of a sentence of death or life imprisonment which the charges carry and wherein a qualified majority of ten (10) votes for affirmance of the death penalty is required. In fine, he was denied due process of law as guaranteed under the Bill of Rights which further ordains that "No person shall be held to answer for a criminal offense without due process of law."Worse, his trial by a military tribunal created by the then President and composed of the said President's own military subordinates without tenure and of non-lawyers (except the law member) and of whose decision the President is the final reviewing authority as Commander-in-Chief of the Armed Forces deprived him of a basic constitutional right to be heard by a fair and impartial tribunal, considering that the said President had publicly declared the evidence against petitioner "not only strong (but) overwhelming" and thereby prejudged and predetermined his guilt, and none of his military subordinates could be expected to go against their Commander-in-Chief's declaration. Hopefully, an these aberrations now belong to the dead and nightmarish past, when time-tested doctrines, to borrow a phrase from the then Chief Justice, "shrivelled in the effulgence of the overpowering rays of martial rule. 49 As stated earlier, We have been asked to re-examine a previous ruling of the Court with a view towards abandoning or modifying the same. We do so now but not without careful reflection and deliberation on Our part. Certainly, the rule of stare decisis is entitled to respect because stability in jurisprudence is desirable. Nonetheless, reverence for precedent, simply as precedent, cannot prevail when constitutionalism and the public interest demand otherwise. Thus, a doctrine which should be abandoned or modified should be abandoned or modified accordingly. After all, more important than anything else is that this Court should be right. 50 Accordingly, it is Our considered opinion, and We so hold, that a military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned. 51 For the same reasons, Our pronouncement in Aquino, Jr. v. Military Commission No. 2 52 and all decided cases affirming the same, in so far as they are inconsistent with this pronouncement, should be deemed abandoned. WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are DISMISSED for having become moot and academic. The Petitions for certiorari and prohibition are hereby GRANTED. The creation of the respondent Military Commission No. 34 to try civilians like the petitioners is hereby declared unconstitutional and all its proceedings are deemed null and void. The temporary restraining order issued against the respondents enjoining them from executing the Decision of the respondent Military Commission No. 34 is hereby made permanent and the said respondents are permanently prohibited from further pursuing Criminal Case No. MC-34-1 against the petitioners. The sentence rendered by the respondent Military Commission No. 34 imposing the death penalty on the petitioners is hereby vacated for being null and void, and all the items or properties taken from the petitioners in relation to the said criminal case should be returned to them immediately. No pronouncement as to costs. SO ORDERED.

G.R. No. 78239 February 9, 1989 SALVACION A. vs. FULGENCIO S. FACTORAN, JR., respondent.

MONSANTO, petitioner,

FERNAN, C.J.: The principal question raised in this petition for review is whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment. In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day ofprision correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally indemnify the government in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately. Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a motion for reconsideration but while said motion was pending, she was extended on December 17, 1984 by then President Marcos absolute pardon which she accepted on December 21, 1984. By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant city treasurer since the same was still vacant. Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the government as well as the costs of the litigation, be satisfied. 1 Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the full pardon bestowed on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay for the entire period of her suspension; and that she should not be required to pay the proportionate share of the amount of P4,892.50. 2 The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held: We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records, petitioner was convicted of the crime for which she was accused. In line with the government's crusade to restore absolute honesty in public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, inPeople v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute pardon, of a former public officer is the only ground for reinstatement to his former position and entitlement to payment of his salaries, benefits and emoluments due to him during the period of his suspensionpendente lite. In fact, in such a situation, the former public official must secure a reappointment before he can reassume his former position. ... Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence." (Sec. 36, par. 2). IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an automatic reinstatement on the basis of the

absolute pardon granted her but must secure an appointment to her former position and that, notwithstanding said absolute pardon, she is liable for the civil liability concomitant to her previous conviction. 3 Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf We gave due course on October 13, 1987. Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment remained "suspended." More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President has declared her not guilty of the crime charged and has accordingly dismissed the same. 4 It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of public documents and sentenced to imprisonment of four years, two months and one day of prision correccional as minimum, to ten years and one day of prision mayor as maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage, enforceable during the term of the principal penalty. 5 Temporary absolute disqualification bars the convict from public office or employment, such disqualification to last during the term of the sentence. 6 Even if the offender be pardoned, as to the principal penalty, the accessory penalties remain unless the same have been expressly remitted by the pardon. 7 The penalty of prision correccional carries, as one of its accessory penalties, suspension from public office. 8 The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its legal consequences. This is not totally unexpected considering that the authorities on the subject have not been wholly consistent particularly in describing the effects of pardon. The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath. But Philippine jurisprudence on the subject has been largely influenced by American case law. Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance." 8-a At the time the antecedents of the present case took place, the pardoning power was governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads: The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. 9 The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality. Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation to the decisive question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed by the Revised Penal Code. In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts on the various consequences of pardon: "... we adopt the broad view expressed in Cristobal v.

Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction. ... (W)e are of the opinion that the better view in the light of the constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely the party ... concerned from the accessory and resultant disabilities of criminal conviction. The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the unmistakable application of the doctrinal case of Ex Parte Garland, 13 whose sweeping generalizations to this day continue to hold sway in our jurisprudence despite the fact that much of its relevance has been downplayed by later American decisions. Consider the following broad statements: A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. 14 Such generalities have not been universally accepted, recognized or approved. 15 The modern trend of authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness. 16 The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt. 17 But it relieves him from nothing more. "To say, however, that the offender is a "new man", and "as innocent as if he had never committed the offense;" is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction." 18 A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. "Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required." 20 This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of the crime for which she was convicted. In the case of State v. Hazzard, 21 we find this strong observation: "To assume that all or even a major number of pardons are issued because of innocence of the recipients is not only to indict our judicial system, but requires us to assume that which we all know to be untrue. The very act of forgiveness implies the commission of wrong, and that wrong has been established by the most complete method known to modern civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a conviction, but they cannot erase the stain of bad character, which has been definitely fixed. 22

In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such "moral changes" as to equate a pardoned convict in character and conduct with one who has constantly maintained the mark of a good, law-abiding citizen. Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into account in their subsequent dealings with the actor." 23 Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. 24 This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege. Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction 25 although such pardon undoubtedly restores his eligibility for appointment to that office. 26 The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction. For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment. Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation. 27 WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs. SO ORDERED. Narvasa, Paras, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Melencio-Herrera, J., concurs in the result. Separate Opinions PADILLA, J.: I concur in the result but on grounds different from those relied upon by the majority opinion. Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3) other accused, she was charged before the Sandiganbayan with the complex crime of Estafa through falsification of public documents. After trial, the accused were convicted and sentenced to

imprisonment of four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision correccional, as maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly and severally indemnify the government in the sum of P 4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately. Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then filed a motion for reconsideration but while said motion was pending, President Ferdinand E. Marcos extended to her on 17 December 1984 an absolute pardon which she accepted on 21 December 1984. By reason of said absolute pardon, petitioner in representations before the City Treasurer of Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed to reassume her former office, as of 1 August 1982 (the date of her preventive suspension), that she be paid her back salaries for the entire period of her suspension, and that she be not required to pay her proportionate share of the amount of P 4,892.50. Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement as well as her other claims, because of which denial, this petition for review on certiorari was filed before the Court seeking the setting aside and reversal of the decision of the respondent Assistant Executive Secretary, on the main contention that, as a public officer who has been granted an absolute pardon by the President, she is entitled to reinstatement to her former position without need of a new appointment, and to the other reliefs prayed for. There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same time, Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on the pardoned's right to hold office, suffrage and on his civil liability. It states: ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Emphasis supplied) Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon extended by the President to the petitioner did not per se entitle her to again hold public office (including therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil liability for the criminal conviction, subject matter of the pardon. An examination of the presidential pardon in question shows that, while petitioner was granted "an absolute and unconditional pardon and restored to full civil and political rights", yet, nothing therein expressly provides that the right to hold public office was thereby restored to the petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a pardon unless the right is expressly restored by the pardon, it is my considered opinion that, to the extent that the pardon granted to the petitioner did not expressly restore the right to hold public office as an effect of such pardon, that right must be kept away from the petitioner. It is a recognized principle in public law hopefully to be honored more in its compliance rather than in its breach that a "public office is a public trust." The restoration of the right to hold public office to one who has lost such right by reason of conviction in a criminal case, but subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be stated in express, explicit, positive and specific language. To require this would not be asking too much. I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that an absolute pardon, without qualification, restores full civil rights which have been construed, in turn, to include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323). If such be the message of said cases, then I submit that a modification is in order, so that an absolute pardon to work a restoration of the right to hold public office must expressly so state, in order to give substance and meaning to the sound provisions of Article 36 of the Revised Penal Code, particularly in the light of our times and experience. ACCORDINGLY, I vote to DENY the petition.

G.R. No. 103567 December 4, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO SALLE, JR. Y GERCILLA @ "KA NONOY," RICKY MENGOTE Y CUNTADO @ "KA RICKY/KA LIZA/KA JUN," and TEN JOHN DOES, accused. FRANCISCO SALLE, JR., Y GERCILLA and RICKY MENGOTE Y CUNTADO, accusedappellants. RESOLUTION DAVIDE, JR., J.: For resolution is the enforceability of the conditional pardon granted to accused-appellant Ricky Mengote during the pendency in this Court of his appeal from his conviction by the trial court. In the decision 1 dated 18 November 1991 of Branch 88 of the Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-90-11835, the accused-appellants were found guilty beyond reasonable doubt as co-principals of the compound crime of murder and destructive arson and were each sentenced to suffer the penalty of reclusion perpetua and to pay, jointly and severally, an indemnity in the sum of P50,000.00 to the heirs of the victim. 2 The appellants seasonably filed their Notice of Appeal. On 24 March 1993, this Court accepted the appeal. On 6 January 1994, however, appellant Francisco Salle, Jr. filed an Urgent Motion to Withdraw Appeal. The Court then required his counsel, Atty. Ida May La'o of the Free Legal Assistance Group (FLAG) to verify the voluntariness of the aforesaid motion. In her Manifestation with Motion to Withdraw Appeal, Atty. La'o informed this Court that her verification disclosed that Salle signed the motion without the assistance of counsel on his misimpression that the motion was merely a bureaucratic requirement necessary for his early release from the New Bilibid Prison (NBP) following the grant of a conditional pardon by the President on 9 December 1993. He was discharged from the NBP on 28 December 1993. She further informed the Court that appellant Ricky Mengote was, on the same dates, granted a conditional pardon and released from confinement, and that he immediately left for his province without consulting her. She then prays that this Court grant Salle's motion to withdraw his appeal and consider it withdrawn upon his acceptance of the conditional pardon. Until now, Mengote has not filed a motion to withdraw his appeal. In the resolution of 23 March 1994, this Court granted Salle's motion to withdraw his appeal and considered this case closed and terminated insofar as he is concerned. On 3 June 1993, Assistant Director Jesus P. Villanueva of the Bureau of Corrections submitted certified photocopies of the conditional pardon granted separately to Salle 3 and Mengote 4 and of their certificates of release. 5 The said copies of the conditional pardon state, among other things, that it is upon acceptance of the pardon that the appellants will be released from confinement. But there is nothing to show when the appellants accepted the pardon. In its Comment of 17 August 1994, the Office of the Solicitor General asserted that with their acceptance of the conditional pardon, the appellants impliedly admitted their guilt and accepted their sentence, and hence, the appeal should be dismissed. 6 After taking into consideration Section 19, Article VII of the Constitution which provides that the President may, except in cases of impeachment or as otherwise provided in the Constitution, grant pardon after conviction by final judgment, this Court resolved to require. 1. The Office of the Solicitor General and the counsel for the accusedappellants to submit, within thirty (30) days from notice hereof, their respective memoranda on the issue of the enforceability of the conditional pardon; and 2. The Presidential Committee for the Grant of Bail, Release or Pardon to inform the Court, within ten (10) days from notice hereof, why it recommended to the President the grant of the conditional pardon despite the pendency of the appeal. 7 In a Comment submitted on behalf of the Presidential Committee for the Grant of Bail, Release, or Pardon, Assistant Chief State Prosecutor Nilo C. Mariano avers that the Secretariat assisting the Committee has a standing agreement with the FLAG and other human rights organizations that it

will recommend to the Presidential Committee for conditional pardon by the President of convicted persons who may have been convicted of crimes against national security and public order or of common crimes which appear to have been committed in pursuit of their political objectives; and that where the said convicted persons have pending appeals before the appellate court, the lawyers of the said organizations, particularly the FLAG, will take care of filing the appropriate motions for the withdrawal of their appeal considering that presidential pardon may be extended only to those serving sentence after final conviction. Notwithstanding that agreement, before it recommends to the Committee the grant of conditional pardon, the Secretariat also checks with the Bureau of Corrections the carpeta or records of recommendees whether they have pending appeals so that those concerned may be properly advised to withdraw the same. Mariano further contends that per information given to the Secretariat by Assistant Director Villanueva, Mengote's carpeta or prison record does not show that he has a pending appeal with the Court of Appeals or the Supreme Court. For that reason, the Secretariat was not able to advise those concerned to take appropriate steps for the withdrawal of the appeal before it recommended to the Committee the grant of conditional pardon in favor of Mengote. Mariano then assures the Court that there was no intention on the part of the Secretariat and the Committee to violate Section 19, Article VII of the Constitution, and that what happened was a clear misappreciation of facts due to the incomplete records of Mengote. In its Memorandum filed for the Appellee on 15 December 1994, the Office of the Solicitor General maintains that the conditional pardon granted to appellant Mengote is unenforceable because the judgment of conviction is not yet final in view of the pendency in this Court of his appeal. On the other hand, the FLAG, through Atty. La'o, submits that the conditional pardon extended to Mengote is valid and enforceable. Citing Monsanto vs. Factoran, Jr., 8 it argues that although Mengote did not file a motion to withdraw the appeal, he was deemed to have abandoned the appeal by his acceptance of the conditional pardon which resulted in the finality of his conviction. The pivotal issue thus raised is the enforceability of a pardon granted to an accused during the pendency of his appeal from a judgment of conviction by the trial court. This calls for a review of the Philippine laws on presidential pardons. We shall start with the Jones Law. 9 Section 21 thereof provided in part as follows: Sec. 21. That the supreme executive power shall be vested in an executive officer, whose official title shall be "The Governor-General of the Philippine Islands.". . . He is hereby vested with the exclusive power to grant pardons and reprieves and remit fines and forfeitures. . . . Then came the 1935 Constitution. Paragraph 6, Section 10, Article VII thereof provided as follows: (6) The President shall have the power to grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction, for all offenses, except in cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper to impose. He shall have the power to grant amnesty with the concurrence of the Congress. This provision differed from that of the Jones Law in some respects. Thus, in People vs. Vera, 10 this Court held: Under the Jones Law, as at common law, pardon could be granted any time after the commission of the offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil. 293). The Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of the case were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning power can only be exercised "after conviction". The requirement of after conviction operated as one of the limitations on the pardoning power of the President. Thus: It should be observed that there are two limitations upon the exercise of this constitutional prerogative by the Chief Executive, namely: (a) that the power be

exercised after conviction; and (b) that such power does not extend to cases of impeachment. 11 The 1973 Constitution went further by providing that pardon could be granted only after final conviction. Section 14 of Article IX thereof reads as follows: The Prime Minister may, except in cases of impeachment, grant reprieves, commutations, and pardons, remit fines and forfeitures, after final conviction, and, with the concurrence of the National Assembly, grant amnesty. (emphasis supplied) The 1981 amendments to the 1973 Constitution, however, removed the limitation of final conviction, thereby bringing us back to the aforementioned provision of the Jones Law. Section 11, Article VII of the 1973 Constitution, as thus amended, reads: The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant amnesty. But the said limitation was restored by the present Constitution. Section 19, Article VII thereof reads as follows: Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. (emphasis supplied) Where the pardoning power is subject to the limitation of conviction, it may be exercised at any time after conviction even if the judgment is on appeal. It is, of course, entirely different where the requirement is " final conviction, " as was mandated in the original provision of Section 14, Article IX of the 1973 Constitution, or "conviction by final judgment," as presently prescribed in Section 19, Article VII of the 1987 Constitution. In such a case, no pardon may be extended before a judgment of conviction becomes final. A judgment of conviction becomes final (a) when no appeal is seasonably perfected, (b) when the accused commences to serve the sentence, (c) when the right to appeal is expressly waived in writing, except where the death penalty was imposed by the trial court, and (d) when the accused applies for probation, thereby waiving his right to appeal. 12 Where the judgment of conviction is still pending appeal and has not yet therefore attained finality, as in the instant case, executive clemency may not yet be granted to the appellant. We are not, however, unmindful of the ruling of this Court in People vs. Crisola 13 that the grant of executive clemency during the pendency of the appeal serves to put an end to the appeal. Thus: The commutation of the penalty is impressed with legal significance. That is an exercise of executive clemency embraced in the pardoning power. According to the Constitution: "The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant amnesty." Once granted, it is binding and effective. It serves to put an end to this appeal. It must, nevertheless, be noted that the constitutional provision quoted is that of the 1973 Constitution, as amended, which authorized the exercise of the pardoning power at anytime, either before or after conviction. Also, in Monsanto vs. Factoran, 14 this Court stated that the acceptance of a pardon amounts to an abandonment of an appeal, rendering the conviction final; thus: The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is

deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality. This statement should not be taken as a guiding rule for it is nothing but an orbiter dictum. Moreover, the pardon involved therein was extended on 17 December 1984 or under the regime of Section 11, Article VII of the 1973 Constitution, as amended, which allowed the grant of pardon either before or after conviction. The reason the Constitutional Commission adopted the "conviction by final judgment" requirement, reviving in effect the original provision of the 1973 Constitution on the pardoning power, was, as expounded by Commissioner Napoleon Rama, to prevent the President from exercising executive power in derogation of the judicial power. 15 Indeed, an appeal brings the entire case within the exclusive jurisdiction of the appellate court. A becoming regard for the doctrine of separation of powers demands that such exclusive authority of the appellate court be fully respected and kept unimpaired. For truly, had not the present Constitution adopted the "conviction by final judgment" limitation, the President could, at any time, and even without the knowledge of the court, extend executive clemency to any one whom he, in good faith or otherwise, believes to merit presidential mercy. It cannot be denied that under the Jones Law and the 1981 amendments to the 1973 Constitution on the pardoning power which did not require conviction, the President had unimpeded power to grant pardon even before the criminal case could be heard. And under the 1935 Constitution which required "conviction" only, the power could be exercised at any time after conviction and regardless of the pendency of the appeal. In either case, there could be the risk not only of a failure of justice but also of a frustration of the system of administration of justice in view of the derogation of the jurisdiction of the trial or appellate court. Where the President is not so prevented by the Constitution, not even Congress can impose any restriction to prevent a presidential folly. 16 Hence, nothing but a change in the constitutional provision consisting in the imposition of "conviction by final judgment" requirement can change the rule. The new Constitution did it. Hence, before an appellant may be validly granted pardon, he must first ask for the withdrawal of his appeal,i.e., the appealed conviction must first be brought to finality. Accordingly, while this Court, in its resolution of 21 March 1991 in People vs. Pedro Sepada, 17 dismissed the appeal for having become moot and academic in view of the parole granted to the appellant, it explicitly declared the necessity of a final judgment before parole or pardon could be extended. Thus: CONSIDERING THE FOREGOING, the COURT RESOLVED to DISMISS the appeal for having become moot and academic. To avoid any possible conflict with the judicial determination of pending appeals, the Court further DIRECTED the Board of Pardons and Parole to adopt a system which enables it to ascertain whether a sentence has become final and executory and has, in fact, been executed before acting on any application for parole or pardon. The Court Administrator shall coordinate with the Department of Justice on how this may be best achieved. (Emphasis supplied). Recently, in its resolution of 31 January 1995 in People vs. Hinlo, 18 this Court categorically declared to be "in clear violation of the law" the "practice of processing applications for pardon or parole despite pending appeals." This Court resolved therein as follows: IN VIEW OF THE FOREGOING, in order to put a stop to the practice of processing applications for pardon and parole despite pending appeals which is in clear violation of the law, the Court Resolved to: (1) REQUIRE Atty. Conrado H. Edig, counsel de parte of accused Bernardo Hinlo, Catalino Capin, Martin Hinlo and Cecerio Ongco, who were given

pardon, to secure and file the withdrawal of the appeals of said accused within ten days from receipt of this Resolution; (2) CALL the attention of the Presidential Committee to observe the proper procedure as required by law before granting bail, pardon or parole in cases before it; and (3) REMIND the Board of Pardons and Parole about the Court's directive in the People v. Sepada case. (Emphasis supplied). The above pronouncements of this Court in Sepada and in Hinlo may still be unheeded, either through deliberate disregard thereof or by reason of an erroneous application of the obiter dictum in Monsanto or of the ruling in Crisola. Hence, the need for decisive action on the matter. We now declare that the "conviction by final judgment" limitation under Section 19, Article VII of the present Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from his conviction by the trial court. Any application therefor, if one is made, should not be acted upon or the process toward its grant should not be begun unless the appeal is withdrawn. Accordingly, the agencies or instrumentalities of the Government concerned must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal. Such proof may be in the form of a certification issued by the trial court or the appellate court, as the case may be. The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon, commutation of sentence, or parole before the withdrawal of an appeal shall render those responsible therefor administratively liable. Accordingly, those in custody of the accused must not solely rely on the pardon as a basis for the release of the accused from confinement. And now on the instant case. Considering that appellant Ricky Mengote has not filed a motion to withdraw his appeal up to this date the conditional pardon extended to him should not have been enforced. Nonetheless, since he stands on the same footing as the accused-appellants in the Hinlo case, he may be freed from the full force, impact, and effect of the rule herein pronounced subject to the condition set forth below. This rule shall fully bind pardons extended after 31 January 1995 during the pendency of the grantee's appeal. WHEREFORE, counsel for accused-appellant Ricky Mengote y Cuntado is hereby given thirty (30) days from notice hereof within which to secure from the latter the withdrawal of his appeal and to submit it to this Court. The conditional pardon granted the said appellant shall be deemed to take effect only upon the grant of such withdrawal. In case of non-compliance with this Resolution, the Director of the Bureau of Corrections must exert every possible effort to take back into his custody the said appellant, for which purpose he may seek the assistance of the Philippine National Police or the National Bureau of Investigation. Let copies of this Resolution be furnished the Office of the President, the Department of Justice, the Board of Pardons and Parole, and the Presidential Committee for the Grant of Bail, Release, or Pardon. SO ORDERED.

G.R. No. 75025 September 14, 1993 VICENTE GARCIA, petitioner, vs. THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE MINISTER, LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents. Eulogio B. Alzaga for petitioner. The Solicitor General for respondents. BELLOSILLO, J.: Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of respondent Commission on Audit (COA) denying his claim for payment of back wages, after he was reinstated to the service pursuant to an executive clemency. He prays for the extraordinary remedy of mandamus against public respondents to enforce his claim. Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily dismissed from the service on the ground of dishonesty in accordance with the decision of the then Ministry of Public Works, Transportation and Communications in Adm. Case No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the decision. Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against petitioner with the then Court of First Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the offense charged. Consequently, petitioner sought reinstatement to his former position in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the Philippines for executive clemency. On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation and Communications and the Civil Service Commission, Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800, granted executive clemency to petitioner. Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1 April 1975, the date of his dismissal from the service. This was denied by the COA in its 5th Indorsement dated 12 October 1982 on the ground that the executive clemency granted to him did not provide for the payment of back salaries and that he has not been reinstated in the service. It appears that petitioner was recalled to the service on 12 March 1984 but the records do not show whether petitioner's reinstatement was to the same position of Supervising Lineman. 1 Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the date of his dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied in its 3rd Indorsement dated 23 July 1985, respondent COA denied the claim stating that the executive clemency was silent on the payment of back wages and that he had not rendered service during the period of his claim. Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal and constitutional constraint," 2 holding that this Court is the proper forum to take cognizance of the appeal on certiorari from the decision of the COA, citing Art. XII(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution). Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of back wages after having been reinstated pursuant to the grant of executive clemency. In his comment to the petition, the Solicitor General recommends that the petition be given due course and the petitioner be awarded back wages to be determined in the light of existing laws and jurisprudence. The Solicitor General submits that the award is implicit in the grant of executive clemency, the ultimate objective of which is to accord full justice to petitioner.

On the other hand, the COA asks this Court to deny the petition for the following reasons: (a) petitioner's acquittal in the criminal case did not necessarily free him from administrative liability; (b) petitioners unexplained failure to appeal the decision in the administrative case was tantamount to a waiver or renunciation of his right to back wages; (c) the executive clemency was granted to petitioner for the purpose of reinstatement only since it was silent on the matter of back wages; (d) the award of back wages is allowed only if the respondent is exonerated from the administrative charge that his suspension or dismissal is declared illegal or unjustified by the court; and, (e) petitioner did not render any service during the period before his reinstatement, hence, he is not entitled to back wages based on the "no service, no pay" rule. The petition is meritorious. Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with money. 3 Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency under the following circumstances: Except in cases of impeachment or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.4 From among the different acts of executive clemency spelled out above, the clemency granted to petitioner in the instant case partakes of the nature of an executive pardon. A reading of Resolution No. 1800 partly quoted hereunder is enlightening: In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications interposed no objection to the petition, while the Minister of Transportation and Communications, in his 4th Indorsement dated November 17, 1980, favorably recommended the grant of executive clemency to petitioner for the reason that "while it is a rule that an administrative case is separate and distinct from a criminal case and an acquittal in the latter case dos not ipso facto result in the exoneration in the former case, yet an exception could arise if the basis for the acquittal was the innocence of the accused as in the case of petitioner Garcia. Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil service Commission recommends the grant of executive clemency to petitioner in view of the findings of the court that instead of coming forward to the defense of the accused who actually was authorized to uproot or recover the poles in question and of commending the latter for his high sense of responsibility in preventing losses to the government, said high officials had even the temerity to disown and deny the authority they gave to the accused resulting in his separation from the service and having him all alone in defending himself against the accusation of the very government he tried to protect. After a careful study, this Office is inclined to grant executive clemency to petitioner in the light of this decision of the court acquitting him of the crime of qualified theft which was based on the same acts obtaining in Administrative Case No. 975 against him, coupled with the favorable recommendation of the Minister of Transportation and Communications and the Civil Service Commission. In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency. 5

Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted. InMonsanto v. Factoran, 6 we have firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. 7 When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later acquitted by the trial court of the charge of qualified theft based on the very same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the offense imputed to him. Aside from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant. Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission. The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating petitioner from the administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency. Petitioner's automatic reinstatement to the government service entitles him to back wages. 8 This is meant to afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those with have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them. 9There is no doubt that petitioner's case falls within the situations aforementioned to entitle him to back wages. Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment of the former for the latter." 10In pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry of Transportation and Communications. The clemency nullified the dismissal of petitioner and relieved him from administrative liability. The separation of the petitioner from the service being null and void, he is thus entitled to back wages. After having been declared innocent of the crime of qualified theft, which also served as basis for the administrative charge, petitioner should not be considered to have left his office for all legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the office held, including back wages. 11

Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an illegally dismissed government employee who has been ordered reinstated. 12 The cases heretofore decided by this Court show that petitioners therein were employees of local governments who were removed from office by their local officials. The reasons given for their removal were abolition of office or position, reduction of work force, or lack of funds on the part of the local governments concerned, which reasons were found by this Court to be either devoid of factual basis or not sufficiently proven, otherwise, their dismissal would have been valid and justified. In contrast, the case before us is different, involving as it does circumstances that impel us to deviate from the general rule previously laid down on the recovery of back wages for five (15) years. Petitioner's reinstatement in the instant case which was ordered pursuant to a grant of executive clemency was effected not because of lack of sufficient proof of his commission of the offense but that, more importantly, he did not commit the offense charged. Verily, law, equity and justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and, above all, injustice caused to him and his family by his unfounded dismissal. This Court cannot help surmising the painful stigma that must have caused petitioner, the incursion on his dignity and reputation, for having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief. Consequently, this Court finds it fair and just to award petitioner full back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated. The payment shall be without deduction or qualification. WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered ordering public respondents, the Chairman of the Commission on Audit, the Minister (now Secretary) of Land Transportation and Communications, the Regional Director of Telecom Regional Office No. IV, or whoever may be sitting in office in their stead, to pay the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale. SO ORDERED.

G.R. No. 99031 October 15, 1991 RODOLFO D. vs. EXECUTIVE SECRETARY OSCAR ORBOS and III, respondents. Mauricio Law Office for petitioner. Ongkiko, Bucoy, Dizon & Associates for private respondent.

LLAMAS, petitioner, MARIANO UN OCAMPO

PARAS, J.:p The case before Us calls for a determination of whether or not the President of the Philippines has the power to grant executive clemency in administrative cases. In connection therewith, two important questions are also put in issue, namely, whether or not the grant of executive clemency and the reason therefore, are political questions beyond judicial review, and whether or not the questioned act was characterized by grave abuse of discretion amounting to lack of jurisdiction. Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the Province of Tarlac and, on March 1, 1991 he assumed, by virtue of a decision of the Office of the President, the governorship (p. 1, Petition). Private respondent Mariano Un Ocampo III is the incumbent Governor of the Province of Tarlac and was suspended from office for a period of 90 days. Public respondent Oscar Orbos was the Executive Secretary at the time of the filing of this petition and is being impleaded herein in that official capacity for having issued, by authority of the President, the assailed Resolution granting executive clemency to respondent governor. Sometime in 1989, petiotioner, together with Tarlac Board Members Marcelino Aganon, Jr. and Arnaldo P. Dizon, filed on June 13, 1989 a verified complaint dated June 7, 1989 against respondent governor before the then Department of Local Government (DLG, for short), charging him with alleged violation of Section 203(2) (f) 203(2) (p), and 208(w), of Batas Pambansa (B.P.) Blg. 337, otherwise known as the Local Government Code, and other appropriate laws, among them, the Anti-Graft and Corrupt Practices ACt. Prior to that, petitoner filed with the Office of the Omdusman a verified complainant dated November 10, 1988 against respondent governor for the latter's alleged viloation of Section 3-G of Republic Act. (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. The complaint before the DLG, docketed as Administrative Case 10459, was subsequently tried, where both petitioner and respondent govemor presented their respective evidence. Petitioner maintains that sometime in August, 1988, respondent governor, in his official capacity as Provincial Governor Tarlac, entered into and executed a Loan Agreement with Lingkod Tarlac Foundation, Inc., a non-stock and non-profit organization headed by the governor himself as chairman and controlled by his brother-in-law as executive director, trustee, and secretary; that the said Loan Agreement was never authorized and approved by the Provincial Board, in direct contravention of the provisions of the Local Government Code; that the said Agreement is wholly one-sided in favor of the Foundation and grossly inimical to the interest of the Provincial Government (because it did not provide for interest or for any type security and it did not provide for suretyship and comptrollership or audit to control the safe disbursement of said loan); that a total amount of P20,000,000.00 was disbursed to the aforesaid Foundation; that the transactions constitute a fraudulent scheme to defraud the Provincial Government; and that the said Agreement is wholly unconstitutional, illegal, a immoral. (Annex "A", Petition) On the other hand, it is the contention of respondent governor that "the funds were intended to generate livelihood project among the residents of Tarlac and the use of the Lingkod Tarlac Foundation, Inc. was authorized by law and considered the best alternative as a matter of judgment." (pp. 12-13, Appeal Memorandom); that he resigned from the said Foundation in order to forestall any suspicion that he would influence it; that it is not true that the Loan Agreement did not provide for continuing audit by the Provincial Government because the Memorandum of Agreement provides otherwise; and that the Agreement is not manifestly and grossly disadvantageous to the Provincial Government and respondent governor did not and would not profit thereby because it provided sufficient safeguards for repayment. (Annex "A", Petition)

After trial, the Secretary of the then Department of Local Government rendered a decision dated September 21, 1990, dispositive portion of which reads: WHEREFORE, Governor Mariano Un Ocampo III is, as he hereby found guilty of having violated Section 3(g) of Republic Act No.3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which act amounts to serious neglect of duty and/or abuse of authority, for which tilp penalty of suspension from office for a period of ninety (90) days, effective upon the finality of this Decision, is hereby imposed upon him. (p. 3, Petition) Parenthetically, be it noted that the Resolution imposed not a preventive suspension but a penalty of suspension. Respondent govemor moved for a reconsideration of the abovequoted decision but the same was denied on October 19, 1990. Aggrieved, he appealed the DLG decision dated September 21, 1990 and the order of denial dated October 19, 1990 to the Office of the President (O.P. Case No. 4480). On February 26, 1991, herein public respondent Executive Secretary issued a Resolution dismissing respondent governor's appeal and affirming the September 21, 1990 DLG decision. Subsequently, and pursuant to Sec. 66, Chapter 4 of B.P. Blg. 337, to the effect that the decision of the Office of the President in administrative suspension of local officials shall be immediately executory without prejudice to appeal to appropriate courts, petitioner, on March 1, 1991, took his oath of office as acting governor. Under the administrative suspension order, petitioner had up to May 31, 1991 as acting governor. On the same date (March 1, 1991), respondent govemor moved for a reconsideration of the Executive Secretary's Resolution, to which petitioner filed an opposition. From the allegations of the petitioner in his petition, respondent govemor accepted his suspension and turned over his office to petitioner. To the surprise of petitioner, however, respondent govemor on March 19, 1991, issued an "administrative order" dated March 8, 1991, in which the latter signified his intention to "(continue, as I am bound to exercise my fimctions as govemor and shall hold office at my residence," in the belief that "the pendency of my Motion for Reconsideration precludes the coming into finality as executory the DLG decision." (Annex "E", Petition; p. 10, Comment). And, as categorically stated in the petition, the reassumption ceremony by respondent governor was held on May 21, 1991 (p. 8, Petition). Without ruling on respondent governor's Motion for Reconsideration, public respondent issued a Resolution dated May 15, 1991, in O.P. Case No. 4480, which reads: This refers to the petition of Gov. Mariano Un Ocampo III of Tarlac for executive clemency, interposed in connection with the decision of the Secretary of then Department of Local Governmen (DLG) dated 21 September 1990, as affirmed in a Resolution of this Office dated 26 February 1991, suspending petitioner from office for period of ninety (90) days upon the finality of said decision. As will be recalled, the DLG Secretary imposed the penalty of suspension upon his finding that petitioner was guilty of serious neglect of duty and/or abuse of authority for entering into a loan contract with the Lingkod Tarlac Foundation, Inc. (LTFI) grossly/manifestly disadvantageous to Tarlac Province. In his letter-petition of 10 May 1991, thereby pleading for a thirty (30)-day reduction of his suspension, petitioner invited attention to the DLG Secretary's decision clearing him of having personally benefitted from the questioned transaction. In the same letter, petitioner manifests serving more than sixty (60) days of the ninety-day suspension. Previously, petitioner submitted documents and letters from his constituents tending to show the relative success of his livelihood loan program pursue under the aegis of the LTFI and/or the Foundation's credible loan repayment record. To cite some: 1. Certification of the Chairman,Tarlac Integrated Livelihood Cooperative, Inc., attesting to the full payment of its loan (P15.05 M) plus interest with LTFI;

2. Certification of the Manager, Rural Bank of Geron (Tarlac), Inc., attesting to the gradual liquidation of the loan granted to family-borrowers out of funds provided by LTFI; 3. Letter of Jover's Phil., expressing gratitude for the loan assistance extended for its export activities by LTFI; 4. Letter of the Tarlac Provincial Agricultural Officer i forming that the proceeds of the loan from LTFI have bee utilized in hybrid com production; and 5. Letter of the President of the Federation of Tobacco Leaf Producers of Tarlac, Inc., informing of the payment of 76 of the amount (P203,966.00) loaned to the Federation for tobacco production. Petitioner's act, vis-a-vis the loan to LTFI, may have been promp by an over eagerness to accelerate the delivery of livelihood services to his provincemates. As the truism goes, however, the end does not always justify the means. Be that as it may, but without belaboring the propriety of the loan agreement aforementioned, some measure of leniency may be accorded petitioner as the purpose of his suspen sion may have made its mark. WHEREFORE, Governor Mariano Un Ocampo III is hereby granted executive clemency in the sense that his ninety-day suspension is hereby reduced to the period already served. SO ORDERED. (Annex "F", Petition; pp. 25-26, Rollo) By virtue of the aforequoted Resolution, respondent governor reassumed the governorship of the province, allegedly withou any notification made to the petitioner. Petitioner posits that the issuance by public respondent of the May 15, 1991 Resolution was "whimsical, capricious and despotic, and constituted grave abuse of discretion amounting lack of jurisdiction," (p. 6, petition) basically on the ground th executive clemency could be granted by the President only in criminal cases as there is nothing in the statute books or even in the Constitution which allows the grant thereof in administrative cases. Petitioner also contends that since respondent governor refused to recognize his suspension (having reassumed the governorship in gross defiance of the suspension order), executive clemency cannot apply to him; that his rights to due process were violated because the grant of executive clemency was so sudden that he was not even notified thereof; and that despite a finding by public respondent of impropriety in the loan transaction entered into by respondent governor, the former failed to justify the reduction of the penalty of suspension on the latter. Petitioner further alleges that the exftutive clemency granted by public respondent was "the product of a hocus-pocus strategy" (p. 1, Manifestation with Motion, etc.) because there was allegedly no real petition for the grant of executive clemency filed by respondent govemor. Batas Pambansa Blg. 337 provides: Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, ... (2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense s warrants, or when the continuance in office of the respondent coul influence the witnesses or pose a threat to the safety and integrity the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension. (3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation the proceedings against him until its termination. (Emphasis supplied) It is admitted by petitioner that since March 1, 1991, he has assumed the governorship. A portion of the petition is hereon der quoted as follows:

7. [On February 28, 1991], and in accordance with the provisions of the Local Government Code (Sec. 66, Chapter 4, Batas Pambansa Blg. 337), to the effect that the decision of the Office of the President in an administrative suspension of local officials shall be immediately executory without prejudice to appeal to appropriate courts, Petitioner Llamas took his oath of office as acting govemor. Under the administrative suspension order, Llamas had up to May 31 [sic 29] 1991 as acting governor; 8. A copy of this oath of office is attached and made a part hereof as Annex B; 9. Significantly, this oath of office was sworn to by Petitioner Llamas before Secretary Santos of the newly created Department Interior and Local Government, as shown by the lower portion Annex B, and by a picture of the oathtaking itself, attached and mad a part hereof as Annex B-1; 10. Subsequently, Petitioner Llamas and Respondent Ocampo met, where Ocampo was shown Llamas' oath of office. During meeting, held in the presence of all department heads at the provi cial capitol and in the presence of various local government offici and representatives of the media, Ocampo agreed to turn over reigns of the provincial government to Petitioner; 11. In fact, Ocampo had asked the department heads and all other officials of the provincial government of Tarlac to extend their cooperation to Llamas, during the ninety days that the latter would assume the governorship; 12. And, as if this was not enough, Ocampo even made announcements in the media that he was allowing Petitioner Llamas to perform his functions as acting governor at the Office of the Govern at the Capitol where he (Ocampo) used to hold office (true enough Ocampo has subsequently allowed Llamas to hold office at the of the Governor, with Ocampo even escorting the acting therein last March 4, 1991); l 3. An account of Ocampo's acceptance of his suspension and of his having turned over his office to Petitioner Llamas was published, front page, in the March 5, 1991 issue of the Manila Bulletin. A copy of this news account is attached and made a part hereof as Annex C); 14. Furthermore, various other officials, President Aquino Rep. Jose Cojuangco included, have extended recognition to Petitions Llamas' assumption of the governorship. Llamas met with President Aquino and Rep. Cojuangco and, during this meeting, the two highest officials of the land have asked Llamas to discharge his duties acting governor; 15. Secretary Santos, for that matter, has issued a designation to Tarlac Senior Board Member Aganon, dated March 18, 1991, a pointing bim as acting vice governor of the province, "in view of the suspension of Gov. Mariano Un Ocampo III, and the assumption Vice Governor Rodolfo Llamas as acting governor." A copy of this designation is attached and made a part hereof as Annex D; xxx xxx xxx 30. ... [T]he reassumption ceremony by [Governor] Ocampo was held [in the] morning of May 21, 1991 ... (pp- 2-4 & 7, Petition; pp. 3-5 & 8, Rollo) It is prayed in the instant petition dated May 21, 1991 that: b. In the meantime that this action is pending, and irnmediately upon the filing hereof, a temporary restraining order be issued stopping the Respondents from enforcing, in any manner, the aforesaid contested resolution, and Respondent Ocampo, firom continuing with his reassumption of the governorship. IN THE ALTERNATIVE, that a cease and desist order be issued against Respondent Ocampo stopping him from continuing with hiii reassumption of the governorship.

Let us first deal with the issue on jurisdiction. Respondent govemor avers that since under the Constitution fiffl discretionary authority is granted to the President on the exercise of executive clemency, the same constitutes a political question which is beyond judicial review. Such a rule does not hold true in the case at bar. While it is true that courts cannot inquire into the manner in which the President's discretionary powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue involved concerns the validity of such discretionary powers or whether said powers are within the limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And such review does not constitute a modification or correction of the act of the President, nor does it constitute interference with the functions of the President. In this connection, the case of Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051, is very enlightening, and We quote: Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Consfitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers. As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but, within these limits, they do permit the departments, separately or together, to recognize that a certain set of facts exists or that a given status exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts. (Willoughby on the Constitution of the United States, Vol. 3, p. 1326). xxx xxx xxx What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the goverrunent, with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, 51 L.R.A. 561; In Re Gunn, 50 Fan. 155; 32 Pac. 470, 948, 19 L. RA. 519; Green vs. Mills, 69 Fed. 852, 16, C. CA 516, 30 L.R.A- 90; Fletcher vs. Tuttle, 151 111, 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political question, but because they are matters which the people have by the Constitute delegated to the Legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject him to the restraining and controlling power of the people, acting through the courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary the department which is charged with the special duty of determinining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to "the end that the government may

be one of laws and not men" words which Webster said were the greatest contained in any written constitutional document. Besides, under the 1987 Constitution, the Supreme Court has been conferred an "expanded jurisdiction" to review the decisions of the other branches and agencies of the government to determine whether or not they have acted within the bounds of the Constitution (See Art. VIII, Sec. 1, Constitution). "Yet, in the exercise thereof, the Court is to merely check whether or not the govermental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view" (Co vs. Electoral Tribunal of the House of Representatives & Ong, G.R. Nos. 92191-92 and Balanquit vs. Electoral Tribunal of the House of Representatives & Ong, G.R Nos. 92202-03, July 30, 1991). In the case at bar, the nature of the question for determination is not purely political. Here, we are called upon to decide whether under the Constitution the President may grant executive clemency in administrative cases. We must not overlook the fact that the exercise by the President of her power of executive clemency is subject to constitutional l'um'tations. We will merely check whether the particular measure in question has been in accordance with law. In so doing, We will not concern ourselves with the reasons or motives which actuate the President as such is clearly beyond our power of judicial review. Petitioner's main argument is that the President may grant executive clemency only in criminal cases, based on Article VII, Section 19 of the Constitution which reads: Sec. 19. Except in cases of impeachment, or as otherwise pro vided in this Constitution, the President may grant reprieves, commu tations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress. (Emphasis supplied) According to the petitioner, the qualifying phrase "after conviction by final judgment" applies solely to criminal cases, and no other law allows the grant of executive clemency or pardon to anyone who has been "convicted in an administrative case," allegedly because the word "conviction" refers only to criminal cases (par. 22-b, c, d, Petition). Petitioner, however, describes in his very own words, respondent governor as one who has been "convicted in an administrative case" (par. 22-a, petition). Thus, petitioner concedes that the word "conviction" may be used either in a criminal case or in an administrative case. In Layno, Sr. vs. Sandiganbayan, 136 SCRA 536, We ruled: For misfeasance or malfeasance ... any [elective official] could ... be proceeded against administratively or ... criminally. In either case, his culpability must be established ... It is also important to note that respondent govemor's Motion for Reconsideration filed on March 1, 1991 was withdrawn in his petition for the grant of executive clemency, which fact rendered the Resolution dated February 26, 1991 affirming the DLG Decision (which found respondent governor guilty of neglect of duty and/or abuse of authority and which suspended him for ninety (90) days) final. Moreover, applying the doctrine "Ubi lex non distinguit, nec nos distinguire debemos," We cannot sustain petitioner's view. In other words, if the law does not distinguish, so We must no distinguish. The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following petitioner's proposed interpretation, cases of impeachment are automatically excluded inasmuch as the same do not necessarily involve criminal offenses. In the same vein, We do not clearly see any valid and convincing reason why the President cannot grant executive clemency in administrative cases. It is Our considered view that if the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses.

A number of laws impliedly or expressly recognize or support the exercise of the executive clemency in administrative cases. Under Sec. 43 of P.D. 807, "In meritorious cases, ..., the President may commute or remove administrative penalties or disabilities issued upon officers and employees, in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service." During the deliberations of the Constitutional Commission, a subject of deliberations was the proposed amendment to Art. VII, Sec. 19 which reads as follows: "However, the power to grant executive clemency for violation of corrupt practices laws may be limited by legislation."The Constitutional Commission, however, voted to remove the amendment, since it was in derogation of the powers of the President. As Mr. Natividad stated: I am also against this provision which will again chip more powers from the President. In case of other criminals convicted in our society we extend probation to them while in this case, they have already been convicted and we offer mercy. The only way we can offer mercy to them is through this executive clemency extended to them by the President. If we still close this avenue to them, they would be prejudiced even worse than the murderers and the more vicious killers in our society .... The proposal was primarily intended to prevent the President from protecting his cronies. Manifestly, however, the Commission preferred to trust in the discretion of Presidents and refrained from putting additional limitations on his clemency powers. (II RECORD of the Constitutional Commission, 392, 418-419, 524-525) It is evident from the intent of the Constitutional Commission, therefore, that the President's executive clemency powers may not be limited in terms of coverage, except as already provided in the Constitution, that is, "no pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations shall be granted by the President without the favorable recommendation of the COMELEC" (Article IX, C, Section 5, Constitution). If those already adjudged guilty criminally in court may be pardoned, those adjudged guilty administratively should likewise be extended the same benefit. In criminal cases, the quantum of evidence required to convict an individual is proof beyond reasonable doubt, but the Constitution grants to the President the power to pardon the act done by the proved criminal and in the process exempts him from punishment therefor. On the other hand, in administrative cases, the quantum of evidence required is mere substantial evidence to support a decision, not to mention that as to the admissibility of evidence, administrative bodies are not bound by the technical and rigid rules of admissibility prescribed in criminal cases. It will therefore be unjust and unfair for those found guilty administratively of some charge if the same effects of pardon or executive clemency cannot be extended to them, even in the sense of modifying a decision to subserve the interest of the public. (p. 34, Comment of public respondent) Of equal importance are the following provisions of Executive Order No. 292, otherwise known as the Administrative Code of 1987, Section I, Book III of which provides: SECTION 1. Power of Control. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. SECTION 38. Definition of Administrative Relationships. Unless otherwise expressly stated in the Code or in other laws defining the special relationships of particular agencies, administrative relationships shall be categorized and defined as follows: (1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies the word "control" shall encompass supervision and control as defined in this paragraph. ... (emphasis supplied)

The disciplinary authority to investigate, suspend, and remove provincial or city officials devolves at the first instance on the Department of Interior and Local Government (Secs. 61 and 65, B.P. Blg. 337) and ultimately on the President (Sec. 66). Implicit in this authority, however, is the "supervision and control" power of the President to reduce, if circumstances so warrant, the imposable penalty or to modify the suspension or removal order, even "in the sense" of granting executive clemency. "Control," within the meaning of the Constitution, is the power to substitute one's own judgment for that of a subordinate. Under the doctrine of Qualified Political Agency, the different executive departments are mere adjuncts of the President. Their acts are presumptively the acts of the President until countermanded or reprobated by her (Vinena v. Secretary, 67 Phil. 451; Free Telephone Workers Union vs. Minister of Labor and Employment, 108 SCRA 767 [1981]). Replying upon this view, it is urged by the Solicitor General that in the present case, the President, in the exercise of her power of supervision and control over all executive departments, may substitute her decision for that of her subordinate, most especially where the basis therefor would be to serve the greater public interest. It is clearly within the power of the President not only to grant "executive clemency" but also to reverse or modify a ruling issued by a subordinate against an erring public official, where a reconsideration of the facts alleged would support the same. It is in this sense that the alleged executive clemency was granted, after adducing reasons that subserve the public interest. "the relative success of . . . livelihood loan program." (pp. 39-40, Comment of public respondent) We wish to stress however that when we say the President can grant executive clemency in administrative cases, We refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative branches of the government. Noteworthy is the fact that on March 1, 1991, respondent governor filed a motion for reconsideration and the same may be regarded as implicitly resolved, not only because of its withdrawal but also because of the executive clemency which in effect reduced the penalty, conformably with the power of "control." On petitioner's argument that private respondent's motion for reconsideration has abated the running of the reglementary period for finality of judgment in O.P. Case No. 4480 (that is, there being no final judgment to speak of, the pardon granted was premature and of no effect, We reiterate the doctrine that upon acceptance of a presidential pardon, the grantee is deemed to have waived any appeal which he may have filed. Thus, it was held that: The commutation of the penalty is impressed with legal significance. That is an exercise of executive clemency embraced in the pardoning power. According to the Constitution: "The President may except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant amnesty. "Once granted, it is binding and effective. It serves to put an end to this appeal." (Mansanto v. Factoran, Jr., G.R. No. 78239, 170 SCRA 190. 196). (See also Peo v. Crisola, 129 SCRA 13) Consequently, respondent governor's acceptance of the presidential pardon "serves to put an end" to the motion for reconsideration and renders the subject decision final, that of the period already served. Finally, petitioner's argument that his constitutional rights to due process were violated is uruneritorious. Pardon has been defined as "the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended and not communicated officially to the court. ..." (Bernas, The Constitution of the Philippines, Vol. II, First Ed. 1988, pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]). Thus, assuming that petitioner was not notified of the subject pardon, it is only because said notice is unnecessary. Besides, petitioner's claim that respondent governor has not begun serve sentence is belied by his very own factual allegations in his petition, more particularly that he served as Acting Governor of Tarlac effective from the date he took his Oath of Office on February 28, 1991 up to the time respondent govemor reassumed the governorship of Tarlac on May 21, 1991 (par. 30 petition). It is, therefore, error to say that private respondent did not serve any portion of the 90-day suspension meted upon him.

We fail to see any grave abuse of discretion amounting to lack or in excess of jurisdiction committed by public respondent. WHEREFORE, judgment is hereby rendered: (1) DECLARING that the President did not act arbitrarily or with abuse, much less grave abuse of discretion in issuing the May 15, 1991 Resolution granting on the grounds mentioned therein, executive clemency to respondent governor and that, accordingly, the same is not unconstitutional (without prejudice to criminal proceedings which have been filed or may be filed against respondent governor), and (2) DENYING the rest of the prayers in the petition for being unmeritorious, moot and academic. No costs. SO ORDERED.

G.R. No. 107852 October 20, 1993 GREGORIO M. ARUELO, JR., petitioner, vs. THE COURT OF APPEALS, PRESIDING JUDGE, REGIONAL TRIAL COURT OF BULACAN, BRANCH 17, MALOLOS BULACAN, and DANILO F. GATCHALIAN, respondents. Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner. Venustiano S. Roxas & Associates for private respondent. QUIASON, J.: This is a petition for certiorari and prohibition under rule 65 of the Revised Rules of Court, to set aside the Decision of the Court of Appeals dated November 24, 1992 in CA-G.R. SP No, 28621, which ruled that the answer and counter-protest of respondent Danilo F. Gatchalian was filed timely and ordered the Regional Trial Court, Branch 17, Malolos, Bulacan to continue with the proceedings in Civil Case No. 343-M-92, the protest case filed by petitioner Gregorio N. Aruelo, Jr. Aruelo and Gatchalian were rival candidates in the May 11, 1992 elections for the office of the Vice-Mayor of the Municipality of Balagtas, Province of Bulacan. Gatchalian won over Aruelo by a margin of four votes, such that on May 13, 1992, the Municipal Board of Canvassers proclaimed him as the duly elected Vice-Mayor of Balagtas, Bulacan. On May 22, 1992, Aruelo filed with the Commission on Elections (COMELEC) a petition docketed as SPC No. 92-130, seeking to annul Gatchalian's proclamation on the ground of "fraudulent alteration and tampering" of votes in the tally sheets and the election returns. On June 2, 1992, Aruelo filed with the Regional Trial Court, Branch 17, Malolos, Bulacan, a petition docketed as Civil Case No. 343-M-92 protesting the same election. Aruelo, however, informed the trial court of the pendency of the pre-proclamation case before the COMELEC. On June 10, 1992, Gatchalian was served an Amended Summons from the trial court, giving him five days within which to answer the petition. Instead of submitting his answer, Gatchalian filed on June 15, 1992 a Motion to Dismiss claiming that: (a) the petition was filed out of time; (b) there was a pending protest case before the COMELEC; and (c) Aruelo failed to pay the prescribed filing fees and cash deposit on the petition. Meanwhile in SPC Case No. 92-130, the COMELEC on June 6, 1992 denied Aruelo's petition for non-compliance with Section 20 of R.A. No. 7166, which requires the submission of the evidence and documents in support of the petition to annul Gatchalian's proclamation (Rollo, p. 42). The trial court, on the other hand, issued an order dated July 10, 1992, denying Gatchalian's Motion to Dismiss and ordering him to file his answer to the petition within five days from notice, otherwise, "a general denial shall be deemed to have been entered" (Rollo, p. 45). The trial court also directed Aruelo to pay the deficiency in his filing fee, which the latter complied with. Gatchalian filed a Motion for Reconsideration of the order but the trial court denied the same on August 3, 1992. On August 6, 1992, Gatchalian filed before the Court of Appeals, a petition for certiorari docketed as CA-G.R. SP No. 28621, which alleged grave abuse of discretion on the part of the trial court in denying his Motion to Dismiss and his Motion for Reconsideration. Earlier, that is on July 23, 1992, Gatchalian filed before the trial court a Motion for Bill of Particulars, which was opposed by Aruelo. The trial court denied Gatchalian's motion in an order dated August 5, 1992, a copy of which was received by him on August 6, 1992. On August 11, 1992, Gatchalian submitted before the trial court his Answer with Counter-Protest and Counterclaim, alleging inter alia, that Aruelo was the one who committed the election fraud and that were it not for the said fraud, Gatchalian's margin over Aruelo would have been greater. Gatchalian prayed for the dismissal of the petition, the confirmation of his election and the award of damages. On the day the answer was filed, the trial court issued an order admitting it, and without Gatchalian's specific prayer, directed the revision of ballots in the precincts enumerated in Gatchalian's Counter-Protest and Construction. For this purpose, the trial court ordered the delivery of the contested ballot boxes to the Branch Clerk of Court.

On August 14, 1992, Aruelo filed with the trial court a Motion to Reconsider As Well As To Set Aside "Answer with Counter-Protest and Counterclaim" Filed Out of Time by Protestee. The trial court, on September 2, 1992, denied Aruelo's motion and forthwith scheduled the constitution of the revision committee. On September 28, 1992, Aruelo prayed before the Court of Appeals for the issuance of a temporary restraining order or a writ of preliminary injunction to restrain the trial court from implementing the Order of August 11, 1992, regarding the revision of ballots. The Court of Appeals belatedly issued a temporary restraining order on November 9, 1992, after actual revision of the contested ballots ended on October 28, 1992. Meanwhile, Gatchalian filed with the Court of Appeals on September 21, 1992 another petition for certiorari (CA-G.R. SP No. 28977), again alleging grave abuse of discretion on the part of the trial court in issuing the Order dated August 5, 1992, which denied his Motion for Bill of Particulars. The Court of Appeals, in its Resolution dated September 28, 1992, dismissed this petition for lack of merit. On November 24, 1992, the Court of Appeals rendered a decision in CA-G.R. SP No. 28621, denying Gatchalian's petition, but declared, at the same time, that Gatchalian's Answer With Counter-Protest and Counterclaim was timely filed. The appellate court also lifted the temporary restraining order and ordered the trial court to "proceed with dispatch in the proceedings below" (Rollo, p. 212). Hence, this petition. Aruelo claims that in election contests, the COMELEC Rules of Procedure gives the respondent therein only five days from receipt of summons within which to file his answer to the petition (Part VI, Rule 35, Sec. 7) and that this five-day period had lapsed when Gatchalian filed his answer. According to him, the filing of motions to dismiss and motions for bill of particulars is prohibited by Section 1, Rule 13, Part III of the COMELEC Rules of Procedure; hence, the filing of said pleadings did not suspend the running of the five-day period, or give Gatchalian a new five-day period to file his answer. We do not agree. Petitioner filed the election protest (Civil Case No. -343-M-92) with the Regional Trial Court, whose proceedings are governed by the Revised Rules of Court. Section 1, Rule 13, Part III of the COMELEC Rules of Procedure is not applicable to proceedings before the regular courts. As expressly mandated by Section 2, Rule 1, Part I of the COMELEC Rules of Procedure, the filing of motions to dismiss and bill of particulars, shall apply only to proceedings brought before the COMELEC. Section 2, Rule 1, Part I provides: Sec. 2. Applicability These rules, except Part VI, shall apply to all actions and proceedings brought before the Commission. Part VI shall apply to election contests and quo warranto cases cognizable by courts of general or limited jurisdiction. It must be noted that nowhere in Part VI of the COMELEC Rules of Procedure is it provided that motions to dismiss and bill of particulars are not allowed in election protests or quo warranto cases pending before the regular courts. Constitutionally speaking, the COMELEC can not adopt a rule prohibiting the filing of certain pleadings in the regular courts. The power to promulgate rules concerning pleadings, practice and procedure in all courts is vested on the Supreme Court (Constitution, Art VIII, Sec. 5 [5]). Private respondent received a copy of the order of the Regional Trial Court denying his motion for a bill of particulars on August 6, 1992. Under Section 1 (b), Rule 12 of the Revised Rules of Court, a party has at least five days to file his answer after receipt of the order denying his motion for a bill of particulars. Private respondent, therefore, had until August 11, 1992 within which to file his answer. The Answer with Counter-Protest and Counterclaim filed by him on August 11, 1992 was filed timely. The instant case is different from a pre-proclamation controversy which the law expressly mandates to be resolved in a summary proceeding (B.P. Blg. 881, Art. XX, Sec. 246; COMELEC Rules of Procedure, Part V, Rule 27, Sec. 2; Dipatuan v. Commission on Elections, 185 SCRA 86 [1990]). Pre-proclamation controversies should be summarily decided, consistent with the legislators' desire

that the canvass of the votes and the proclamation of the winning candidate be done with dispatch and without unnecessary delay. Questions as those involving the appreciation of the votes and the conduct of the balloting, which require more deliberate and necessarily longer consideration, are left for examination in the corresponding election protest (Abella v. Larrazabal, 180 SCRA 509 [1989]; Alonto v. Commission on Elections, 22 SCRA 878 [1968]). An election protest does not merely concern the personal interests of rival candidates for an office. Over and above the desire of the candidates to win, is the deep public interest to determine the true choice of the people. For this reason, it is a well-established principle that laws governing election protests must be liberally construed to the end that the popular will, expressed in the election of public officers, will not, by purely technical reasons, be defeated (Unda v. Commission on Elections, 190 SCRA 827 [1990]; De Leon v. Guadiz, Jr., 104 SCRA 591 [1981]; Macasundig v. Macalangan, 13 SCRA 577 [1965]; Corocoro v. Bascara, 9 SCRA 519 [1963]). We find no grave abuse of discretion on the part of the Court of Appeals. WHEREFORE, the petition is hereby DISMISSED. SO ORDERED.

G.R. No. 160465 April 28, 2004 ROMEO M. ESTRELLA, petitioners, vs. COMMISSION ON ELECTIONS, HON. COMMISSIONER RALPH C. LANTION and ROLANDO F. SALVADOR,respondents. RESOLUTION CARPIO MORALES, J.: Before this Court is a petition for certiorari under Rule 64 seeking to set aside and nullify the November 5, 2003Status Quo Ante Order1 issued by the Commission on Elections (COMELEC) En Banc in EAC No. A-10-2002, "Romeo F. Estrella v. Rolando F. Salvador." Romeo M. Estrella (petitioner) and Rolando F. Salvador (respondent) were mayoralty candidates in Baliuag, Bulacan during the May 14, 2001 Elections. The Municipal Board of Canvassers proclaimed respondent as winner. Petitioner thereafter filed before the Regional Trial Court (RTC) of Bulacan an election protest, docketed as EPC No. 10-M2001, which was raffled to Branch 10 thereof.2 By Decision of April 10, 2002, the RTC annulled respondents proclamation and declared petitioner as the duly elected mayor of Baliuag.3 Respondent appealed the RTC decision to the COMELEC where it was docketed as EAC No. A10-2002, and raffled to the second Division thereof, while petitioner filed before the RTC a motion for execution of the decision pending appeal.4 The RTC, by Order of April 16, 2002, granted petitioners motion for execution pending appeal and accordingly issued a writ of execution.5 Respondent thus assailed the April 16, 2002 Order of the RTC via petition for certiorari filed on April 24, 2002 before the COMELEC where it was docketed as SPR No. 21-2002, and raffled also to the Second Division thereof.6 Petitioner later moved for the inhibition7 of Commissioner Ralph C. Lantion, a member of the COMELEC Second Division. On May 30, 2002, the COMELEC Second Division issued a Status Quo Ante Order,8 By Order of July 9, 2002, the motion for inhibition of Commissioner Lantion was denied by the COMELEC Second Division. On July 11, 2002, petitioner filed before this Court a petition for certiorari questioning the COMELEC Second Division May 20, 2002 Status Quo Ante Order, which petition was supplemented on July 30, 2002. The petition was docketed by this Court as G.R. No. 154041. As no temporary restraining order was issued by this Court, the May 30, 2002 Status Quo Ante Order of the COMELEC Second Division was implemented on or about July 17, 2003, resulting in the ouster of petitioner from the mayoral post. In the meantime, during the July 23, 2002 hearing of SPR No. 21-2002, COMELEC Commissioner Lantion inhibited himself.9 Commissioner Ressureccion Z. Borra was, by Order of August 25, 2002,10 thus designated in place of Commissioner Lantion. During the pendency of G.R. No. 154041 before this Court, the COMELEC Second Division, by Order of January 16, 2003, nullified in SPR No. 21-2002 the writ of execution11 issued by the RTC. Respondent filed a Motion for Reconsideration of the said Order which motion was duly certified to the COMELEC En Banc. On September 16, 2003, this Court, by Resolution on even date, dismissed G.R. No. 154041 on the grounds that 1) the case had become moot and academic because of the COMELEC Second Divisions resolution on the merits of SPR No. 21-2002, and (2) this Court has no jurisdiction over Division orders or rulings of the COMELEC. On October 15, 2003, the COMELEC Second Division, issued in EAC No. A-10-2002 an Order12 adopting the order of substitution in SPR No. 21-2002 dated August 25, 2002 designating Commissioner Borra as substitute member thereof. On October 20, 2003, the COMELEC Second Division issued in EAC No. A-10-2002 a Resolution13 affirming with modifications the RTC decision and declaring petitioner as the duly elected mayor. On even date, respondent moved to reconsider14 the said October 20, 2003 Order.

Petitioner, in the meantime, filed on October 22, 2003 a motion for immediate execution 15 of the COMELEC Second Division October 20, 2003 Resolution, which was set for hearing on October 28, 2003 but reset to November 4, 2003. On October 29, 2003, respondent filed before the COMELEC Second Division a "very urgent motion to consider the instant case certified to the Commission en banc."16 Respondent later filed on November 3, 2003 a "very urgent manifestation and motion to suspend proceedings."17 Hearing of the incidents in EAC No. A-10-2002 was conducted on November 4, 2003. The following day or on November 5, 2003, the COMELEC Second Division issued an Order18 denying respondents plea for suspension of proceedings and granting petitioners motion for execution pending appeal and accordingly directing the issuance of a writ of execution. On even date, the COMELEC En Banc issued the questioned November 5, 2003Status Quo Ante Order. Five (5) members including Commissioner Lantion participated in this November 5, 2003 Order wherein Commissioner Lantion stated that "his previous voluntary inhibition is only in the SPR cases and not in the EAC" and "as further agreed in the Second Division, [he] will not participate in the Division deliberations but will vote when the case is elevated [to the] en banc." Of the five Commissioners, Commissioner Borra dissented. Hence, the present petition, alleging as follows: I. THE NOV. 5 STATUS QUO ANTE ORDER IS NULL AND VOID FOR WANT OF CONSTITUTIONAL AND STATUTORY AUTHORITY OF THE COMELEC TO ISSUE SUCH AND ORDER. II. THE COMELEC EN BANC PALPABLY ACTED WITHOUT JURISDICTION AND IN FLAGRANT BREACH OF INTER-COLLEGIAL COMITY WHEN IT ISSUED THE NOV. 5 ORDER CONSIDERING THAT EAC NO. A-10-2002 IS STILL UNDER THE PRIMARY AND CONTINUING JURISDICTION OF THE SPECIAL SECOND DIVISION WHICH HAS YET TO FULLY DISPOSE OF ESTRELLAS TIMELY FILED MOTION FOR IMMEDIATE EXECUTION. III. DUE TO HIS PREVIOUS VOLUNTARY INHIBITION IN A RELATED CASE, SPR NO. 21-2002 AND AT THE DIVISION LEVEL IN THE SAME CASE, EAC NO. A-10-2002, COMMISSIONER LANTIONS VOTE IN THE ASSAILED ORDER SHOULD BE DISREGARDED AND CANCELLED. THE EN BANCS NOV. 5 ORDER IS THUS INVALID FOR FURTHER REASON THAT IT IS NOT SUPPORTED BY THE REQUIRED MAJORITY VOTE. IV. THE COMELEC EN BANC ALSO ACTED ARBITRARILY AND IN MANIFEST GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT PREVENTED THE ENFORCEMENT OF THE DIVISIONS ORDER OF EXECUTION THE ISSUANCE OF WHICH IS LEGALLY JUSTIFIED UNDER THE APPLICABLE CASE PRECEDENTS AND WARRANTED UNDER THE SPECIFIC FACTS AND CIRCUMSTANCES OF THE CASE. V. THE COMELEC EN BANC GROSSLY VIOLATED ESTRELLAS RIGHT TO EQUAL PROTECTION OF THE LAWS AND EQUAL OR FAIR TREATMENT WHEN IT IGNORED ITS OWN CASE PRECEDENTS AND PRACTICE. IN STARK CONTRAST TO WHAT IT DID IN THIS CASE, THE EN BANC HAD PREVIOUSLY ALLOWED THE FIRST DIVISION, IN AT LEAST TWO RECENT CASES (EPC NO. 2001-19 AND EAC NO. A-4-20030 TO RESOLVE TIMELY FILED MOTION FOR EXECUTION PENDING RECONSIDERATION AND GAVE SAID DIVISION A FREE HAND AT FULLY DISPOSING OF SAID INCIDENTS. Petitioner argues that Commissioner Lantions vote in the assailed order should be disregarded because of his previous inhibition in a similar case and in the same case in the Division level, thus making said assailed order null and void as it was not concurred by the required majority. Petitioners argument is meritorious. Commissioner Lantions voluntary piecemeal inhibition cannot be countenanced. Nowhere in the COMELEC Rules does it allow a Commissioner to voluntarily inhibit with reservation. To allow him to participate in the En Bancproceedings when he previously inhibited himself in the Division

is, absent any satisfactory justification, not only judicially unethical but legally improper and absurd. Since Commissioner Lantion could not participate and vote in the issuance of the questioned order, thus leaving three (3) members concurring therewith, the necessary votes of four (4) or majority of the members of the COMELEC was not attained. The order thus failed to comply with the number of votes necessary for the pronouncement of a decision or order, as required under Rule 3, Section 5(a) of the COMELEC Rules of Procedure which provides: Section 5. Quorum; Votes Required. (a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling. WHEREFORE, the instant petition is GRANTED. The Status Quo Ante Order dated November 5, 2003 issued by the COMELEC En Banc is hereby NULLIFIED. This Resolution is IMMEDIATELY EXECUTORY. SO ORDERED.

G.R. No. 90780 February 6, 1991 RAYMUNDO ACENA, petitioner, vs. CIVIL SERVICE COMMISSION and JOSEFINA ESTOLAS, respondents. Rodolfo T. Gascon for petitioner. Thelma S. Panganiban-Gaminde, Rogelio C. Limare and Daisy B. Garcia-Tingzon for respondent Civil Service Commission. PARAS, J.:p This is a petition for certiorari to annul resolution No. 89748 * dated October 9, 1989 of the Civil Service Commission which set aside the order ** dated March 23, 1988 of the Merit Systems Protection Board declaring the herein petitioner as the legitimate Administrative Officer of Rizal Technological Colleges. It appears on record that petitioner Raymundo T. Acena was appointed on October 18, 1982 as an Administrative Officer of Rizal Technological Colleges (RTC). He was appointed to the said position by Dr. Lydia Profeta, then the President of Rizal Technological Colleges, a State College located at Boni Avenue, Mandaluyong, Metro Manila. His appointment as Administrative Officer of Rizal Technological Colleges was approved as permanent by the Civil Service Commission (Annex "B"; Rollo, p. 34). Later on December 9, 1985, Dr. Lydia Profeta extended to petitioner Acena a promotional appointment as Associate Professor of Rizal Technological Colleges effective November 1, 1985. Despite his appointment as Associate Professor he was also designated as Acting Administrative Officer in a memorandum dated October 30, 1985, issued by Dr. Lydia Profeta. On March 21, 1986, then Secretary of Education Lourdes Quisumbing, designated Dr. Josefina V. Estolas as RTC Officer-in-Charge in lieu of Dr. Lydia Profeta. On April 4, 1986, the RTC Board of Trustees approved the designation of twenty two (22) employees of the College to various positions including the designation of Ricardo Salvador as Acting Administrative Officer vice petitioner Acena (Rollo, p. 42). Subsequently, on May 23, 1986, the RTC Board of Trustees confirmed said designation in its regular meeting subject to the submission of supporting documents and/or the certification of the selection and promotion board (Rollo, p. 116). In a memorandum No. 30, series of 1986, Dr. Estolas revoked effective April 8, 1986, the designation of petitioner Acena as Acting Administrative Officer. She also requested the latter to effect a smooth turn-over of the said office to Ricardo Salvador. On April 8, 1986, the Civil Service Commission National Capital Region, received two letters dated January 9, 1986 and January 13, 1986. In the letter dated January 9, 1986 addressed to Dr. Profeta, petitioner Acena manifested to the latter his desire to remain as Administrative Officer as his appointment as Associate Professor could be approved only as temporary until such time that he could prepare a thesis and obtain a master's degree In her reply letter dated January 13, 1986, Dr. Profeta withdrew the appointment of petitioner Acena. Also on April 8, 1986, petitioner Acena filed a complaint for injunction with damages against Dr. Estolas and Ricardo Salvador. The case was docketed as Civil Case No. 53327, assigned to Branch CLXVII, Regional Trial Court, Pasig, Metro Manila. In his complaint he assailed the validity of Memorandum No. 30 as violative of his security of tenure. On May 9, 1986, petitioner Acena filed a letter complaint dated April 17, 1986 with the Merit Systems Protection Board (MSPB) against Dr. Estolas for illegal termination (Rollo, p. 28). On May 20, 1986, Adelina B. Sarmiento, Assistant Regional Director, CSC-NCR, approved as temporary the appointment of petitioner Acena as Associate Professor because he lacks the master's degree required for the position pursuant to CSC MC No. 4, series of 1985. Despite the filing of the injunction case and the pendency of the case before the MSPB, petitioner Acena sought on July 7, 1986, the opinion of the CSC Chairman Celerina G. Gotladera who opined in her letter dated March 23, 1987, addressed to the RTC Officer-in-Charge (Dr. Estolas) that petitioner Acena is still the Administrative Officer of RTC because his appointment as Associate

Professor had been withdrawn. Dr. Estolas filed on May 18, 1987 a motion for reconsideration, but then CSC Chairman Gotladera denied it in her letter dated July 8, 1987. On May 15, 1987, the Pasig Court granted petitioner Acena's application for a writ of preliminary injunction enjoining Dr. Estolas from enforcing Memorandum No. 30. The Court of Appeals likewise sustained the issuance of injunction when it dismissed on September 4, 1987 the petition for certiorari filed by Dr. Estolas and Ricardo Salvador. On February 3, 1988, the MSPB issued an order dismissing petitioner Acena's complaint for illegal termination. The dismissal was anchored of the findings that petitioner Acena was validly appointed to the position of Associate Professor and he was merely designated as Administrative Officer which designation could be revoked anytime by the appointing authority. However, on March 23, 1988, acting on petitioner Acena's letter dated February 12, 1988 informing the MSPB of the opinion of CSC Chairman Gotladera, the MSPB reversed itself and set aside its order dated February 3, 1988. On July 16, 1988, Dr. Estolas and Ricardo Salvador filed a petition for review with the Office of the President. The case was entitled "Dr. Josefina Estolas and Ricardo Salvador (Rizal Technological Colleges), petitioners v. the Honorable Civil Service Commission, the Honorable Merit System and Protection Board and Raymundo T. Acena, respondents." In is 1st Indorsement dated July 20, 1988, Vicente Galang, Presidential Staff Director, Office of the President referred the said petition to the Civil Service Commission (Rollo, p. 159). On October 9, 1989, the CSC promulgated Resolution No. 89748, the dispositive portion of which reads: WHEREFORE, foregoing premises considered, the commission resolved to rule, as it hereby rules that the action taken by the then Officer-in-Charge (now President) of the Rizal Technological Colleges (RTC) Dr. Josefina V. Estolas, in revoking the designation of Raymundo T. Acena as Acting Administrative Officer, is in order. Accordingly, the order dated March 23, 1988 of the Merit Systems Protection Board and the letter-opinions of the Commission dated March 23, 1987 and July 8, 1987, are set aside. Petitioner Acena received a copy of the above resolution on October 24, 1989. He filed a petition for review oncertiorari on November 15, 1989. The proper remedy which petitioner should have taken from the resolution of public respondent Civil Service Commission is a petition for certiorari under Rule 65 of the Rules of Court and not a petition for review oncertiorari under Rule 45 of said rules. Although Rule 65 does not provide for a period, the petition for certiorariassailing the resolution of the Civil Service Commission should be filed within thirty (30) days from receipt of the resolution as provided under Section 7, Article IX of the 1987 Constitution. (Pacis v. Secretary of Science and Technology, G.R. No. 89165, August 10, 1989). Error in the title of the petition is a defect in form that may be disregarded as it does not affect the merits of the case. Considering the jurisdictional issue raised in this petition, we consider the same as a special civil action under Rule 65. The jurisdictional issue for resolution is whether or not the public respondent Civil Service Commission acted without or in excess of jurisdiction or with grave abuse of discretion when it set aside the order dated March 23, 1988 of the MSPB. It is a settled rule, that a respondent tribunal, board or officer exercising judicial functions acts without jurisdiction if he does not have the authority conferred by law to hear and decide the case (Banco Espanol Filipino v. Palanca, 37 Phil. 921 [1918]). There is excess of jurisdiction where the respondent has the legal power to decide the case but oversteps his authority (Rocha & Co. vs. Crossfield, 6 Phil. 355 [1906]; Blanco v. Ambler 3 Phil. 358 [1904]). And there is grave abuse of discretion where the respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment amounting to lack of jurisdiction. (Alafriz v. Noble, 72 Phil. 728 [1941]; People v. Vallarta, 77 SCRA 476; F.S. Divinagracia Agno Commercial, Inc. v. Court of Appeals, 104 SCRA 180; Young v. Sulit, 162 SCRA 639; Filinvest Credit Corporation v. IAC, 166 SCRA 155; Carson et al. v. Judge Pantanosa, Jr., G.R. No. 75934, December 15, 1989). In the case at bar, it is an admitted fact by no less than the public respondent Civil Service Commission that private respondent Estolas' petition for review filed on June 16, 1988, with the

Office of the President was filed out of time and with the wrong forum (pp. 7-11, Comment, dated February 20, 1990, Civil Service Commission). Section 8 of Presidential Decree No. 1409 dated June 8, 1978, provides that: Sec. 8. Relationship with the Civil Service Commission. Decision of the Board involving the removal of officers and employees from the service shall be subject to automatic review by the Commission. The Commission shall likewise hear and decide appeals from other decisions of the Board, provided that the decisions of the Commission shall be subject to review only by the Courts. Implementing the above provisions, Section 7 of CSC Resolution No. 81-1329 dated November 23, 1981 likewise provides that: Sec. 7. Cases appealable to the Commission. Decision of the merits Systems Board on contested appointments and other non-disciplinary cases are appealable to the Commission by the party adversely affected within fifteen (15) days from receipt of a copy thereof. (Emphasis supplied). Based on the above provisions of law, the decision of the MSPB is appealable to the Civil Service Commission within fifteen (15) days from receipt of the copy thereof. Perfection of the appeal within the prescribed period is jurisdictional so that the failure to perfect an appeal within the reglementary period has the effect of rendering the judgment final and executory (De Los Santos v. NLRC, G.R. No. 83927, June 28, 1989; Andaya et al. v. NLRC, G.R. Nos. 73726-28, August 2, 1990). Moreover, the right to appeal is a statutory right and the party who seeks to avail himself of the same must comply with the requirements of the law. Failure to do so, the right to appeal is lost (Ozaeta v. Court of Appeals, G.R. No. 83281, December 4, 1989). Ostensibly, public respondent Civil Service Commission has the jurisdiction to review the decision of the MSPB. However, said authority to review can only be exercised if the party adversely affected by the decision of the MSPB has filed an appeal with the Commission within the reglementary period. Here, it is admitted by public respondent Commission and not disputed by private respondent Estolas that the petition for review which can be considered as an appeal from the decision of the MSPB dated March 23, 1988 was filed outside the reglementary period. This being so, the public respondent exceeded its jurisdiction when it entertained the petition that was erroneously filed with the Office of the President. Having exceeded its jurisdiction public respondent committed a reversible error when it set aside the order dated March 23, 1988 of the MSPB which had long become final and executory. Final decision or orders of the MSPB is an adjudication on the merits conclusive on the parties, hence, it can no longer be subject to review (San Luis, et al. v. Court of Appeals, et al., G.R. No. 80160, June 26, 1989). While it is true that under exceptional circumstances, delay in the filing of an appeal may be excused on grounds of substantial justice and equity, the delay must, however, be excusable and the appeal must be impressed with merit. (Legasto v. Court of Appeals, G.R. Nos. 76834-60, April 25, 1989). In the instant case, private respondent Estolas has not even bothered to offer an explanation why she incurred delay and why she filed a petition for review with the Office of the President. Such being the case, the public respondent Civil Service Commission cannot legally invoke and justify the assumption of jurisdiction on grounds of equity and substantial justice. The issue of jurisdiction having been resolved, it appears unnecessary to discuss the other issues raised in the petition. PREMISES CONSIDERED, the petition is hereby GRANTED and resolution No. 89-0748 dated October 9, 1987 of the Civil Service Commission is hereby NULLIFIED and SET ASIDE. SO ORDERED.

G.R. No. 113219 August 14, 1995 ANICETO G. MATEO, MAXIMO SAN DIEGO, QUIRINO MATEO, DANIEL FRANCISCO, and LEONILA KUIZON,petitioners, vs. HONORABLE COURT OF APPEALS, HON. ARTURO A. MARAVE, and EDGAR STA. MARIA, respondents. PUNO, J.: Upon complaint of some Morong Water District (MOWAD) employees, petitioners, all Board Members of MOWAD, conducted an investigation on private respondent Edgar Sta. Maria, then General Manager. 1 On December 13, 1992, private respondent was placed under preventive suspension and Maximo San Diego was designated in his place as Acting General Manager. He was later dismissed on January 7, 1993. On January 18, 1993, private respondent filed a Special Civil Action for Quo Warranto and Mandamus with Preliminary Injunction 2 before the Regional Trial Court of Rizal, Branch 78, challenging his dismissal by petitioners. The petition embodied three (3) causes of action. It reads: xxx xxx xxx FIRST CAUSE OF ACTION xxx xxx xxx II-2 Petitioner is the General Manager of the MOWAD since August 1984 with concomitant security of tenure in office and could not be removed either temporarily or permanently, except for cause and only after compliance with the elementary rules of due process; II-3 However, on December 14, 1992, contrary to the tenets of justice and fairness, as well as for want of procedural due process, the respondents (petitioners) and members of the Board of Directors of the MOWAD have arbitrarily, whimsically, and unilaterally stopped and prohibited the petitioner from exercising his rights and performing his duties as General Manager of the MOWAD and, in his place, have designated the respondent (petitioner) Maximo San Diego as Acting General Manager . . . II-4 On December 15, 1992, while petitioner was out of office on official travel, . . . thru stealth and strategy, the respondents have conspired and helped one another in removing the petitioner from the Office of the General Manager of the MOWAD by forcibly destroying its door and locked it with a replaced door-knob and all attempts on his part to gain access and entry proved futile; . . . SECOND CAUSE OF ACTION xxx xxx xxx III-2 On January 7, 1993, . . . in confabulation with his co-respondents and members of the Board of Directors of the MOWAD, the respondent Aniceto G. Mateo slapped the petitioner with an Order terminating his services as General Manger . . . III-5 Petitioner has a clear right to the Office of General Manager of the MOWAD which is being usurped or unlawfully held by respondent Maximo San Diego in conspiracy with his co-respondents; . . . THIRD CAUSE OF ACTION xxx xxx xxx IV-1-a Petitioner is entitled to the relief mandated, and the whole or part of such relief consists in restraining the commission, or continuance of the acts complained of more particularly the continuous acts of repondents in stopping and prohibiting him from exercising his rights and performing his duties as General Manager of the MOWAD and from stopping and prohibiting him to gain access and entry to office. 3 Petitioners, in turn, moved to dismiss the case on two (2) grounds: (1) the court had no jurisdiction over disciplinary actions of government employees which is vested exclusively in the Civil Service Commission; and (2)quo warranto was not the proper remedy. 4 Respondent Judge Arturo Marave

denied the Motion to Dismiss on April 26, 1993, and the Motion for Reconsideration on June 9, 1993. 5 Petitioners then elevated the matter to this Court through a petition for certiorari under Rule 65 which was referred to respondent Court of Appeals for adjudication. In its Decision, dated November 24, 1993, respondent Court of Appeals dismissed the petition for lack of merit, and in its Resolution, dated January 11, 1994, denied the Motion for Reconsideration. 6 The main issue in this petition for review is whether or not the Regional Trial Court of Rizal has jurisdiction over Sp. Civil Case No. 014-M involving dismissal of an employee of quasi-public corporation. We hold that it has no jurisdiction. There is no question that MOWAD is a quasi-public corporation created pursuant to Presidential Decree (P.D.) No. 198, known as the provincial Water Utilities Act of 1973, as amended. 7 In Davao City Water District v. Civil Service Commissions 8 the Court en banc ruled that employees of government-owned or controlled corporations with original charter fall under the jurisdiction of the Civil Service Commission, viz: xxx xxx xxx As early as Baguio Water District v. Trajano et, al., We already ruled that a water district is a corporation created pursuant to a special law P.D. No. 198, as amended, and as such its officers and employees are covered by the Civil Service Law. In another case (Hagonoy Water District v. NLRC), We ruled once again that local water districts are quasi-public corporations whose employees belong to the Civil Service. (emphasis omitted) Indeed, the established rule is that the hiring and firing of employees of goverment-own and controlled corporations are governed by the provisions of the Civil Service Law and Rules and Regulations. 9 Presidential Decee No. 807, Executive Order No. 292, 10 and Rule II section 1 of Memorandum Circular No. 44 series of 1990 of the Civil Service Commission spell out the initial remedy of private respondent against illegal dismissal. They categorically provide that the party aggrieved by a decision, ruling, order, or action of an agency of the government involving termination of services may appeal to the Commission within fifteen (15) days. Thereafter, private respondent could go on certiorari to this Court under Rule 65 of the Rules of Court if he still feels aggrieved by the ruling of the Civil Service Commission. So We held in Mancita v. Barcinas, 11 viz: xxx xxx xxx [N]o appeal lies from the decision of the Service Commission, * and that parties aggrieved thereby may proceed to this Court alone on certiorari under Rule 65 of the Rules of Court, within thirty (30) days from receipt of a copy thereof, pursuant to section 7, Article IX of the 1987 Constitution. We quote: Sec. 7. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the party within thirty days from receipt of a copy thereof. The Civil Service Commission under the Constitution, is the single arbiter of all contests relating to the Civil service and as such, its judgments are unappealable and subject only to this Court's certiorari judgment. Mancita, however, no longer governs for under the present rule, Revised Circular No. 1-91 as amended by Revised Administrative Circular No. 1-95 which took effect on June 1, 1995, final resolutions of the Civil Service Commission shall be appealable to the Court of Appeals. In any event, whether under the old rule or present rule, Regional Trial Courts have no jurisdiction to entertain cases involving dismissal of officers and employees covered by the Civil Service Law. IN VIEW HEREOF, the petition is GRANTED and the decision of respondent Court of Appeals dated November 24, 1993 and its Resolution dated January 1, 1994 in CA G.R. SP No. 31530 are ANNULLED and SET ASIDE. No costs. SO ORDERED

G.R. No. L-49677 May 4, 1989 TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES, petitioner, vs. NATIONAL HOUSING CORPORATION and ATTY. VIRGILIO SY, as Officer-in-Charge of the Bureau of Labor Relations, respondents. Bonifacio V. Tupaz for petitioner. The Government Corporate Counsel for respondent NHC. Raul E. Espinosa for intervenor PACIWU. REGALADO, J.: The employees of the public sector comprise the largest bloc of workers in our national work force. Governmental bureaucracy is continually being reorganized to cope with the growing complexity of the problems and needs of political and administrative governance. As the increase in the number of government employees grows space, the need to enhance their welfare correspondingly becomes more imperative. While it may be assumed that the Government is exerting efforts to advance the interests of its employees, it is quite understandable that the employees themselves should actively seek arrangements where by they can participate more meaningfully in management and employment relationships. There is, thus, a proliferation of unions or employees' organizations, each seeking concomitant representational recognition. The antecedent facts which led to the filing of this special civil action for certiorari are clear and undisputed. The juridical status and relevant circumstances of respondent corporation have been established in a case of illegal dismissal filed against it, as previously decided by the Court and hereinafter discussed. However, submitted this time for Our resolution is a controversy on the propriety of and requirements for certification elections in government-owned or controlled corporations like the respondent. Respondent National Housing Corporation (hereinafter referred to as NHC) is a corporation organized in 1959 in accordance with Executive Order No. 399, otherwise known as the Uniform Charter of Government Corporations, dated January 1, 1951. Its shares of stock are and have been one hundred percent (100%) owned by the Government from its incorporation under Act 459, the former corporation law. The government entities that own its shares of stock are the Government Service Insurance System, the Social Security System, the Development Bank of the Philippines, the National Investment and Development Corporation and the People's Homesite and Housing Corporation. 1 Petitioner Trade Unions of the Philippines and Allied Services (TUPAS, for brevity) is a legitimate labor organization with a chapter in NHC. On July 13, 1977, TUPAS filed a petition for the conduct of a certification election with Regional Office No. IV of the Department of Labor in order to determine the exclusive bargaining representative of the workers in NHC. It was claimed that its members comprised the majority of the employees of the corporation. 2 The petition was dismissed by med-arbiter Eusebio M. Jimenez in an order, dated November 7, 1977, holding that NHC "being a government-owned and/or controlled corporation its employees/workers are prohibited to form, join or assist any labor organization for purposes of collective bargaining pursuant to Section 1, Rule II, Book V of the Rules and Regulations Implementing the Labor Code." 3 From this order of dismissal, TUPAS appealed to the Bureau of Labor Relations 4 where, acting thereon in BLR Case No. A-984-77 (RO4-MED-1090-77), Director Carmelo C. Noriel reversed the order of dismissal and ordered the holding of a certification election. 5 This order was, however, set aside by Officer-in-Charge Virgilio S.J. Sy in his resolution of November 21, 1978 6 upon a motion for reconsideration of respondent NHC. In the instant petition for certiorari, TUPAS seeks the reversal of the said resolution and prays that a certification election be held among the rank and file employees of NHC. In retrospect, it will be recalled that in a former case of illegal dismissal involving the same respondent corporation,7 We had ruled that the employees of NHC and of other government owned or controlled corporations were governed by civil service laws, rules and regulations pursuant to the 1973 Constitution which provided that "the civil service embraces every branch, agency,

subdivision and instrumentality of the government, including government-owned or controlled corporations." 8 It was therein stressed that to allow subsidiary corporations to be excluded from the civil service laws would be to permit the circumvention or emasculation of the above-quoted constitutional provision. As perceptively analyzed therein, "(i)t would be possible for a regular ministry of government to create a host of subsidiary corporations under the Corporation Code funded by a willing legislature. A government-owned corporation could create several subsidiary corporations. These subsidiary corporation rations would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the strict accountability required by the Civil Service Decree and the regulations of the Commission on Audit. Their incomes would not be subject to the competitive restraints of the open market nor to the terms and conditions of civil service employment." The rule, however, was modified in the 1987 Constitution, the corresponding provision whereof declares that "(t)he civil service embraces all branches, subdivisions, instrumentalities and agencies of the government, including government-owned or controlled corporations with original charters." 9 Consequently, the civil service now covers only government owned or controlled corporations with original or legislative charters, that is those created by an act of Congress or by special law, and not those incorporated under and pursuant to a general legislation. As We recently held ..., the situations sought to be avoided by the 1973 Constitution and expressed by this Court in the National Housing Corporation case ... appear relegated to relative insignificance by the 1987 Constitutional provision that the Civil Service embraces government-owned controlled corporations with original charters and therefore, by clear implication, the Civil Service does not include government-owned or controlled corporations which are organized as subsidiaries of government-owned or controlled corporations under the general corporation law. 10 While the aforecited cases sought different reliefs, that is, reinstatement consequent to illegal dismissal, the samelis mota determinative of the present special civil action was involved therein. The workers or employees of NHC undoubtedly have the right to form unions or employees' organizations. The right to unionize or to form organizations is now explicitly recognized and granted to employees in both the governmental and the private sectors. The Bill of Rights provides that "(t)he right of the people, including those employed in the public and private sectors, to form unions, associations or societies for purposes not contrary to law shall not be abridged" 11 This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on Social Justice and Human Rights, which mandates that the State "shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law ...." Specifically with respect to government employees, the right to unionize is recognized in Paragraph (5), Section 2, Article IX B 12 which provides that "(t)he right to self-organization shall not be denied to government employees." The rationale of and justification for this innovation which found expression in the aforesaid provision was explained by its proponents as follows: ... The government is in a sense the repository of the national sovereignty and, in that respect, it must be held in reverence if not in awe. It symbolizes the unity of the nation, but it does perform a mundane task as well. It is an employer in every sense of the word except that terms and conditions of work are set forth through a Civil Service Commission. The government is the biggest employer in the Philippines. There is an employer-employee relationship and we all know that the accumulated grievances of several decades are now beginning to explode in our faces among government workers who feel that the rights afforded by the Labor Code, for example, to workers in the private sector have been effectively denied to workers in government in what looks like a grotesque, (sic) a caricature of the equal protection of the laws. For example, ... there were many occasions under the old government

when wages and cost of living allowances were granted to workers in the private sector but denied to workers in the government for some reason or another, and the government did not even state the reasons why. The government employees were being discriminated against. As a general rule, the majority of the world's countries now entertain public service unions. What they really add up to is that the employees of the government form their own association. Generally, they do not bargain for wages because these are fixed in the budget but they do acquire a forum where, among other things, professional and self-development is (sic) promoted and encouraged. They also act as watchdogs of their own bosses so that when graft and corruption is committed, generally, it is the unions who are no longer afraid by virtue of the armor of self-organization that become the public's own allies for detecting graft and corruption and for exposing it.... 13 There is, therefore, no impediment to the holding of a certification election among the workers of NHC for it is clear that they are covered by the Labor Code, the NHC being a government-owned and/or controlled corporation without an original charter. Statutory implementation of the last cited section of the Constitution is found in Article 244 of the Labor Code, as amended by Executive Order No. 111, thus: ... Right of employees in the public service Employees of the government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. The records do not show that supervening factual events have mooted the present action. It is meet, however, to also call attention to the fact that, insofar as certification elections are concerned, subsequent statutory developments have rendered academic even the distinction between the two types of government-owned or controlled corporations and the laws governing employment relations therein, as hereinbefore discussed. For, whether the employees of NHC are covered by the Labor Code or by the civil service laws, a certification election may be conducted. For employees in corporations and entities covered by the Labor Code, the determination of the exclusive bargaining representative is particularly governed by Articles 255 to 259 of said Code. Article 256 provides for the procedure when there is a representation issue in organized establishments, while Article 257 covers unorganized establishments. These Labor Code provisions are fleshed out by Rules V to VII, Book V of the Omnibus Implementing Rules. With respect to other civil servants, that is, employees of all branches, subdivisions, instrumentalities and agencies of the government including government-owned or controlled corporations with original charters and who are, therefore, covered by the civil service laws, the guidelines for the exercise of their right to organize is provided for under Executive Order No. 180. Chapter IV thereof, consisting of Sections 9 to 12, regulates the determination of the "sole and exclusive employees representative"; Under Section 12, "where there are two or more duly registered employees' organizations in the appropriate organization unit, the Bureau of Labor Relations shall, upon petition order the conduct of certification election and shall certify the winner as the exclusive representative of the rank-and-file employees in said organizational unit." Parenthetically, note should be taken of the specific qualification in the Constitution that the State "shall guarantee the rights of all workers to self-organization, collective bargaining, and peaceful concerted activities, including the right to strike in accordance with law" and that they shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law." 14 (Emphasis supplied.) ON THE FOREGOING CONSIDERATIONS, the assailed resolution of the Bureau of Labor Relations, dated November 21, 1978, is ANNULLED and SET ASIDE and the conduct of a certification election among the affected employees of respondent National Housing Corporation in accordance with the rules therefor is hereby GRANTED. SO ORDERED.

G.R. No. 85279 July 28, 1989 SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents. Vicente T. Ocampo & Associates for petitioners. CORTES, J: Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System Employees Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to strike. The antecedents are as follows: On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal. It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241]. The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order into an injunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition with preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the Court of Appeals [Rollo, pp. 12-37]. Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging another strike or from pursuing the notice of strike they filed

with the Department of Labor and Employment on January 25, 1989 and to maintain the status quo [Rollo, pp. 151-152]. The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joined and the case submitted for decision. The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the National Labor Relations Commission, since the case involves a labor dispute. On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking. In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held that since the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over the SSS' complaint for damages, from continuing with their strike. Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike are as follows: 1. Do the employees of the SSS have the right to strike? 2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing with the strike and to order them to return to work? These shall be discussed and resolved seriatim I The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31]. By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to strike. But the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides, after defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters," that "[t]he right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to strike. Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of government employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the right to strike. Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission, explained: MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment providing for self-organization of government employees, it does not mean that because they have the right to organize, they also have the right to strike. That is a different matter. We are only talking about organizing, uniting as a union. With regard to the right to strike, everyone will remember that in the Bill of Rights, there is a provision that the right to

form associations or societies whose purpose is not contrary to law shall not be abridged. Now then, if the purpose of the state is to prohibit the strikes coming from employees exercising government functions, that could be done because the moment that is prohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875, workers, including those from the government-owned and controlled, are allowed to organize but they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that because we approve this resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, that subject is now being discussed in the Committee on Social Justice because we are trying to find a solution to this problem. We know that this problem exist; that the moment we allow anybody in the government to strike, then what will happen if the members of the Armed Forces will go on strike? What will happen to those people trying to protect us? So that is a matter of discussion in the Committee on Social Justice. But, I repeat, the right to form an organization does not carry with it the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569]. It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entrusted with proprietary functions: .Sec. 11. Prohibition Against Strikes in the Government. The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purpose of securing changes or modification in their terms and conditions of employment. Such employees may belong to any labor organization which does not impose the obligation to strike or to join in strike:Provided, however, That this section shall apply only to employees employed in governmental functions and not those employed in proprietary functions of the Government including but not limited to governmental corporations. No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and conditions of employment of all government employees, including employees of government owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or not government employees may strike, for such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter. On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strike by government employees ... enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At present, in the absence of any legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of Memorandum

Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue]. But are employees of the SSS covered by the prohibition against strikes? The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal. The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and government employees with regard to the right to strike: The general rule in the past and up to the present is that 'the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. [At p. 13; Emphasis supplied]. Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit: It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard the right to strike given to unions in private industry as not applying to public employees and civil service employees. It has been stated that the Government, in contrast to the private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests as are present in private labor relations could not exist in the relations between government and those whom they employ. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-179]. E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law. Thus: .SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between

duly recognized employees' organizations and appropriate government authorities. The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit: .SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees. In case any dispute remains unresolved after exhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to the [Public Sector LaborManagement] Council for appropriate action. Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of GovernmentEmployees to Self- Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government- owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof." II The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restrain it. It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor Management Council with jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute. This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate. Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their employeremployee relationship to the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86]. III In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution

of the administrative cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board. The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final. WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated December 13,1988 is DENIED. SO ORDERED.

G.R. No. 104732 June 22, 1993 ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner, vs. HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents. Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners. BELLOSILLO, J.: The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases Conversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and temporary restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries and other operational expenses attached to the office . . . ." 2 Paragraph (d) reads (d) Chairman administrator The President shall appoint a professional manager as administrator of the Subic Authority with a compensation to be determined by the Board subject to the approval of the Secretary of Budget, who shall be the ex oficio chairman of the Board and who shall serve as the chief executive officer of the Subic Authority: Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority (emphasis supplied). Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the Philippines, maintain that theproviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public officer or position during his tenure," 3 because the City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . 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", 4since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the Omnibus Election Code, which says: Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: . . . (g) Appointment of new employees, creation of new position, promotion, or giving salary increases. During the period of forty-five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election. As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need:Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void. (2) Any government official who promotes, or gives any increase of salary or

remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations . . . . for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992 Elections. The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however,That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates the constitutional proscription against appointment or designation of elective officials to other government posts. In full, Sec. 7 of Art. IX-B of the Constitution provides: No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6 ". . . . should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency . . . ." Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where a local elective official will work for his appointment in an executive position in government, and thus neglect his constituents . . . ." 7 In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body politic is of no moment. It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post if so allowed by law or by the primary functions of his office. 8 But, the contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity. In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; 9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation, thus MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with respect to elective officials, because in the case of appointive officials, there may be a law that will allow them to hold other positions. MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there will be certain situations where the law should allow them to hold some other positions. 12 The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials who are governed by the first paragraph. It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where we stated that the prohibition against the holding of any other office or employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the primary functions of the officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any additional compensation therefor. This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word "appointed" and, instead, "ex officio" would have been used. 14 Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio. Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the Chairman" then that should foreclose the issue. It is a legislative choice." 15 The Senator took a view that the constitutional proscription against appointment of elective officials may have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post. Without passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the argument that they are ex officio. The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to uphold the constitutionality of the challenged proviso since it is not put in issue in the present case. In the same vein, the argument that if no elective official may be appointed or designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any case, the Vice-President for example, an elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if specifically authorized by law. Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City. As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. 18 In his treatise, Philippine Political

Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office." Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to Woodbury, J., 20 "the choice of a person to fill an office constitutes the essence of his appointment,"21 and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an executive act involving the exercise of discretion." 22 In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court 23 we held: The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power . . . . Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component of the appointing power. Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment. 24 In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of appointment. While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. Accordingly, while the conferment of the appointing power on the President is a perfectly valid legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative. Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may however resign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit for appointment. The deliberation in the Constitutional Commission is enlightening: MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE. MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his position. MR. DAVIDE. Yes, we should allow that prerogative. MR. FOZ. Resign from his position to accept an executive position. MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave the service, but if he is prohibited from being appointed within the term for which he was elected, we may be depriving the government of the needed expertise of an individual. 25 Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office. Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically forfeit his elective

office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to another government office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is expresslyprovided by law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution, or statutes declare that persons holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void (Ala. State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27 As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were exercised . . . . under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28 Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may have been received by respondent Gordon pursuant to his appointment may be retained by him. The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the questioned proviso as well as the appointment of said respondent made pursuant thereto need no longer be discussed. In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated . . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of this Authority that we are creating; (much) as I, myself, would like to because I know the capacity, integrity, industry and dedication of Mayor Gordon; (much) as we would like to give him this terrific, burdensome and heavy responsibility, we cannot do it because of the constitutional prohibition which is very clear. It says: "No elective official shall be appointed or designated to another position in any capacity." 29 For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean amidst the raging of the waves." 30 One of the characteristics of the Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by legitimate needs but only by passing fancies, temporary passions or occasional infatuations of

the people with ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political expediency, personal ambitions or ill-advised agitation for change." 31 Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice. WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the first year of its operations from the effectivity of this Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," is declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID. However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise legitimate done by him in the exercise of his authority as officer de facto of SBMA are hereby UPHELD. SO ORDERED.