DE LOS SANTOS V.

MALLARI (1950)
This is an original action of quo warranto questioning the legality of the
appointment of respondent Gil R. Mallare to the office of city engineer for
the City of Baguio which the petitioner occupied and claims to be still
occupying. The real issue however is the legality of the petitioner's removal
from the same office which would be the effect of Mallare's appointment if
the same be allowed to stand. It is the petitioner's contention that under
the Constitution he can not be removed against his will and without cause.
The complaint against the other respondents has to do merely with their
recognition of Mallare as the lawful holder of the disputed office and is
entirely dependent upon the result of the basic action against the lastmentioned respondent (Mallare).
Stripped of details unessential to the solution of the case, the facts are that
Eduardo de los Santos, the petitioner, was appointed City Engineer of
Baguio on July 16, 1946, by the President, appointment which was
confirmed by the Commission on Appointments on August 6, and on the
23rd of that month, he qualified for and began to exercise the duties and
functions of the position. On June 1, 1950, Gil R. Mallare was extended an
ad interim appointment by the President to the same position, after which,
on June 3, the Undersecretary of the Department of Public Works and
Communications directed Santos to report to the Bureau of Public Works for
another assignment. Santos refused to vacate the office, and when the City
Mayor and the other officials named as Mallare's co-defendants ignored him
and paid Mallare the salary corresponding to the position, he commenced
these proceedings.
The petitioner rests his case on Article XII of the Constitution, section 4 of
which reads: "No officer or employee in the Civil Service shall be removed
or suspended except for cause as provided by law."
It is admitted in respondents' answer that the City Engineer of Baguio
"belongs to the unclassified service." And this Court, in an exhaustive
opinion by Mr. Justice Montemayor in the case of Lacson vs. Romero, 47 Off.
Gaz., 1778, involving the office of provincial fiscal, ruled that officers or
employees in the unclassified as well as those in the classified service are
protected by the above-cited provision of the organic law. But there is this
difference between the Lacson case and the case at bar: Section 2545 of
the Revised Administrative Code, which falls under Chapter 61 entitled
"City of Baguio," authorizes the Governor General (now the President) to
remove at pleasure any of the officers enumerated therein, one of whom is
the city engineer. The first question that presents itself is, is this provision
still in force?
Section 2 of1Article XVI of the Constitution declares that "All laws of the
Philippine Islands shall continue in force until the inauguration of the
Commonwealth of the Philippines; thereafter, such laws shall remain
operative, unless inconsistent with this Constitution, until amended,
altered, modified, or repealed by the Congress of the Philippines, . . . ."
It seems plain beyond doubt that the provision of section 2545 of the
Revised Administrative Code, he (Governor-General now President) may
remove at pleasure any of the said appointive officers," is incompatible with
the constitutional inhibition that "No officer or employee in the Civil Service
shall be removed or suspended except for cause as provided by law." The

two provisions are mutually repugnant and absolutely irreconcilable. One in

express terms permits what the other in similar terms prohibits.
The Constitution leaves it to the Congress to provide for the cause of
removal, and it is suggested that the President's pleasure is itself a cause.
The phrase "for cause" in connection with the removals of public officers
has acquired a well-defined concept. "It means for reasons which the law
and sound public policy recognized as sufficient warrant for removal, that
is, legal cause, and not merely causes which the appointing power in the
exercise of discretion may deem sufficient. It is implied that officers may
not be removed at the mere will of those vested with the power of removal,
or without any cause. Moreover, the cause must relate to and affect the
administration of the office, and must be restricted to something of a
substantial nature directly affecting the rights and interests of the
public."(43 Am. Jur., 47, 48.)
Reconsideration of the decision in Lacson vs. Romero as far as officers in
the unclassified service are concerned is urged. It is contended that only
officers and employees in the classified service should be brought within
the purview of Article XII of the Constitution.
Section 1 of this article ordains: "A Civil Service embracing all branches and
subdivisions of the Government shall be provided by law. Appointments in
the Civil Service, except as those which are policy-determining, primarily
confidential or highly technical in nature, shall be made only according to
merit and fitness, to be determined as far as practicable by competitive
examination." The first clause is a definition of the scope of Civil Service,
the men and women which section 4 protects. It seems obvious from that
definition that the entire Civil Service is contemplated, except positions
"which are policy-determining, primarily confidential or highly technical in
nature." This theory is confirmed by the enactment of Commonwealth Act
No. 177 on November 30, 1936 to implement Article XII of the Constitution.
Commonwealth Act No. 177 explains Civil Service almost in the identical
words of that article of the organic law. As a contemporaneous
construction, this Act affords an index to the meaning of Civil Service as
conceived by the framers of the Constitution. "The principle of
contemporaneous construction may be applied to the construction given by
the legislature to the constitutional provisions dealing with legislative
powers and procedure. Though not conclusive, such interpretation is
generally conceded as being entitled to great weight." (U.S. vs. Sprague,
282 U.S., 716; 75 L. ed. 640; 51 S. Ct., 220; 71 A.L.R., 1381; Den ex dem.
Murray vs. Hoboken Land and Improv. Co., 18 How. [U.S.], 272; 15 L. ed.,
372; Clark vs. Boyce, 20 Ariz., 544; 185 P., 136, citing R.C.L.; 11 Am. Jur.
699.) The principle of express mention and implied exclusion may be made
use of also to drive home this point.
We are led to the same conclusion by the existing provisions at the time of
the adoption of the Constitution. Civil Service as embracing both classes of
officers and employees possessed definite legal and statutory meaning
when the Constitution was approved. Section 670 of the Revised
Administrative Code already provided that "Persons in the Philippine civil
service pertain either to the classified service," and went on to say that
"The classified service embraces all not expressly declared to be in the
unclassified service." Then section 671 described persons in the
unclassified service as "officers, other than the provincial treasurers and
assistant directors of bureaus or offices, appointed by the President of the
Philippines, with the consent of the Commission on Appointments of the

National Assembly, and all other officers of the government whose

appointments are by law vested in the President of the Philippines alone."
The rules of the construction inform us that the words use in the
constitution are to be given the sense they have in common use.
(Okanogan Indians vs. United States, 279, U.S., 665; 64 A.L.R., 1434; 73
Law ed., 894.) It has been said that we must look to the history of the
times, examine the state of things existing when the Constitution was
framed and adopted, (Rhode Islands vs. Massachusetts, 12 Pet., 657; 9 Law
ed., 1233), and interpret it in the light of the law then in operation. (Mattox
vs. United States, 156, U.S., 237; 39 Law ed., 409.)
Attention is drawn to supposed inconveniences of tying the hands of the
appointing power in changing and shifting officers in the unclassified
service. "If it is argued all important officers and employees of the
government falling within the unclassified service as enumerated in section
671 of the Revised Administrative Code as amended by Commonwealth Act
No. 177, may not be removed by the President except for cause as provided
by law, . . . the President would be seriously crippled in the discharge of the
grave duty and responsibility laid upon him by the Constitution to take care
that the laws faithfully executed."
Questions of expediency are, of course, beyond the province of the court to
take into account in the interpretation of laws or of the Constitution where
the language is otherwise clear. But the argument is, we think, unsound
even if the case be approached from this angle. It contains its own
refutation. The Constitution and the law implementing it afford adequate
safeguards against such consequences as have been painted.
The argument proceeds, contrary to its context, on the assumption that
removes of civil service officers and employees are absolutely prohibited,
which is not the case. The Constitution authorizes removals and only
requires that they be for cause. And the occasions for removal would be
greatly diminished if the injunction of section 1 of Article XII of the
Constitution that appointments in the civil service shall be made only
according to merit and fitness, to be determined as far as practicable by
competitive examination would be adhered of meticulously in the first
place.
By far greater mischiefs would be fomented by an unbridled authority to
remove. Such license would thwart the very aims of the Constitution which
are expounded by Dean Aruego, himself a member of the Constitutional
Convention, in the following remarks copied with approval in Lacson vs.
Romero, supra:

2 of the "merit system" in government service has secured

The adoption
efficiency and social justice. It eliminates the political factor in the selection
of civil employees which is the first essential to an efficient personnel
system. It insures equality of opportunity to all deserving applicants
desirous of a career in the public service. It advocates a new concept of the
public office as a career open to all and not the exclusive patrimony of any
party or faction to be doled out as a reward for party service.
The "merit system" was adopted only after the nations of the world took
cognizance of its merits. Political patronage in the government service was
sanctioned in 1879 by the Constitutional right of President of the United
States to act alone in the matter of removals. From the time of Andrew

Jackson the principle of the "To the victor belongs the spoils' dominated the
Federal Government. The system undermined moral values and destroyed
administrative efficiency.
Since the establishment of the American Regime in the Philippines we have
enjoyed the benefits of the "merit system." The Schurmann Commission
advocated in its reports that "the greatest care should be taken in the
selection of the officials for administration. They should be men of the
highest character and fitness, and partisan politics should be entirely
separated from the government." The fifth act passed by the Philippine
Commission created a Board of Civil Service. It instituted a system here
that was far more radical and thorough than that in the United States. The
Governor-General after William Taft adopted the policy of appointing
Filipinos in the government regardless of their party affiliation. As the result
of these the personnel of the Civil Service had gradually come to be one of
which the people of the United States could feel justly proud.
Necessity for Constitutional provision. The inclusion in the constitution of
provisions regarding the "merit system" is a necessity of modern times. As
its establishment secures good government the citizens have a right to
accept its guarantee as a permanent institution.
Separation, suspension, demotions and transfers. The "merit system" will
be ineffective if no safeguards are placed around the separation and
removal of public employees. The Committee's report requires that
removals shall be made only for "causes and in the manner provided by
law. This means that there should be bona fide reasons and action maybe
taken only after the employee shall have been given a fair hearing. This
affords the public employees reasonable security of tenure. (II Aruego's
Framing of the Constitution, 886, 887, 890.)
As has been seen, three specified classes of positions policy-determining,
primarily confidential and highly technical are excluded from the merit
system and dismissal at pleasure of officers and employees appointed
therein is allowed by the Constitution. These positions involved the highest
degree of confidence, or are closely bound out with and dependent on
other positions to which they are subordinate, or are temporary in nature. It
may truly be said that the good of the service itself demands that
appointments coming under this category determinable at the will of the
officer that makes them.
The office of city engineer is neither primarily confidential, policydetermining, nor highly technical.
Every appointment implies confidence, but much more than ordinary
confidence is reposed in the occupant of a position that is primarily
confidential. The latter phrase denotes not only confidence in the aptitude
of the appointee for the duties of the office but primarily close intimacy
which insures freedom of intercourse without embarrassment or freedom
from misgivings of betrayals of personal trust or confidential matters of
state. Nor is the position of city engineer policy-determining. A city
engineer does not formulate a method of action for the government or any
its subdivisions. His job is to execute policy, not to make it. With specific
reference to the City Engineer of Baguio, his powers and duties are
carefully laid down for him be section 2557 of the Revised Administrative
Code and are essentially ministerial in character. Finally, the position of city
engineer is technical but not highly so. A city engineer is not required nor is

he supposed to possess a technical skill or training in the supreme or

superior degree, which is the sense in which "highly technical" is, we
believe, employed in the Constitution. There are hundreds of technical men
in the classified civil service whose technical competence is not lower than
that of a city engineer. As a matter of fact, the duties of a city engineer are
eminently administrative in character and could very well be discharged by
non-technical men possessing executive ability.
Section 10 of Article VIII of the Constitution requires that "All cases
involving the constitutionality of a treaty or law shall be heard and decided
by the Supreme Court in banc," and warns that "no treaty or law may be
declared unconstitutional without the concurrence of two-thirds of all the
members of the Court." The question arises as to whether this judgment
operates as invalidation of section 2545 of the Revised Administrative Code
or a part of it so as to need at least eight votes to make effective. The
answer should be in negative.
We are not declaring any part of section 2545 of the Revised Administrative
Code unconstitutional. What we declare is that the particular provision
thereof which gave the Chief Executive power to remove officers at
pleasure has been repealed by the Constitution and ceased to be operative
from the time that instrument went into effect. Unconstitutionally, as we
understand it, denotes life and vigor, and unconstitutional legislation
presupposes posteriority in point of time to the Constitution. It is a statute
that "attempts to validate and legalize a course of conduct the effect of
which the Constitution specifically forbids (State ex-rel. Mack vs.
Guckenberger, 139 Ohio St., 273; 39 NE. [2d], 840.) A law that has been
repealed is as good as if it had never been enacted, and can not, in the
nature of things, contravene or pretend to contravene constitutional
inhibition. So, unlike legislation that is passed in defiance of the
Constitution, assertive and menacing, the questioned part of section 2545
of the Revised Administrative Code does not need a positive declaration of
nullity by the court to put it out of the way. To all intents and purposes, it is
non-existent, outlawed and eliminated from the statute book by the
Constitution itself by express mandate before this petitioner was appointed.
Incidentally, the last discussion answers and disposes of the proposition
that in accepting appointment under section 2545 of the Revised
Administrative Code, the petitioner must be deemed to have accepted the
conditions and limitations attached to the appointment. If the clause of
section 2545 which authorized the President to remove officers of the City
of Baguio at pleasure had been abrogated when petitioner's appointment
was issued, the appointee can not presumed to have abided by this
condition.

3 hold that the petitioner is entitled to remain in office as City

We therefore
Engineer of Baguio with all the emoluments, rights and privileges
appurtenant thereto, until he resigns or is removed for cause, and that
respondent Mallare's appointment is ineffective in so far as it may
adversely affect those emoluments, rights and privileges. Without costs.

CSC V. SALAS (1997)

The present petition for review on certiorari seeks to nullify the decision of
the Court of Appeals, dated September 14, 1995, in CA-G.R. SP No. 38319
which set aside Resolution No. 92-1283 of the Civil Service Commission
(CSC) and ordered the reinstatement of herein private respondent Rafael M.
Salas with full back wages for having been illegally dismissed by the
Philippine Amusement and Gaming Corporation (PAGCOR), but without
prejudice to the filing of administrative charges against him if warranted. 1
The records disclose that on October 7, 1989, respondent Salas was
appointed by the PAGCOR Chairman as Internal Security Staff (ISS) member
and assigned to the casino at the Manila Pavilion Hotel. However, his
employment was terminated by the Board of Directors of PAGCOR on
December 3, 1991, allegedly for loss of confidence, after a covert
investigation conducted by the Intelligence Division of PAGCOR. The
summary of intelligence information claimed that respondent was allegedly
engaged in proxy betting as detailed in the affidavits purportedly executed
by two customers of PAGCOR who claimed that they were used as gunners
on different occasions by respondent. The two polygraph tests taken by the
latter also yielded corroborative and unfavorable results.
On December 23, 1991, respondent Salas submitted a letter of appeal to
the Chairman and the Board of Directors of PAGCOR, requesting
reinvestigation of the case since he was not given an opportunity to be
heard, but the same was denied. On February 17, 1992, he appealed to the
Merit Systems Protection Board (MSPB) which denied the appeal on the
ground that, as a confidential employee, respondent was not dismissed
from the service but his term of office merely expired. On appeal, the CSC
issued Resolution No. 92-1283 which affirmed the decision of the MSPB. 2
Respondent Salas initially went to this Court on a petition for certiorari
assailing the propriety of the questioned CSC resolution. However, in a
resolution dated August 15, 1995, 3 the case was referred to the Court of
Appeals pursuant to Revised Administrative Circular No. 1-95 which took
effect on June 1, 1995.
On September 14, 1995, the Court of Appeals rendered its questioned
decision with the finding that herein respondent Salas is not a confidential
employee, hence he may not be dismissed on the ground of loss of
confidence. In so ruling, the appellate court applied the "proximity rule"
enunciated in the case of Grio, et al. vs. Civil Service Commission, et al. 4
It likewise held that Section 16 of Presidential Decree No. 1869 has been
superseded and repealed by Section 2(1), Article IX-B of the 1987
Constitution.

Hence this appeal, which is premised on and calls for the resolution of the
sole determinative issue of whether or not respondent Salas is a
confidential employee.
Petitioners aver that respondent Salas, as a member of the Internal
Security Staff of PAGCOR, is a confidential employee for several reasons,
viz.:
(1) Presidential Decree No. 1869 which created the Philippine Amusement
and Gaming Corporation expressly provides under Section 16 thereof that

all employees of the casinos and related services shall be classified as

confidential appointees;
(2) In the case of Philippine Amusement and Gaming Corporation vs. Court
of Appeals, et al., 5 the Supreme Court has classified PAGCOR employees
as confidential appointees;
(3) CSC Resolution No. 91-830, dated July 11, 1991, has declared
employees in casinos and related services as confidential appointees by
operation of law; and
(4) Based on his functions as a member of the ISS, private respondent
occupies a confidential position.
Whence, according to petitioners, respondent Salas was not dismissed from
the service but, instead, his term of office had expired. They additionally
contend that the Court of Appeals erred in applying the "proximity rule"
because even if Salas occupied one of the lowest rungs in the
organizational ladder of PAGCOR, he performed the functions of one of the
most sensitive positions in the corporation.
On the other hand, respondent Salas argues that it is the actual nature of
an employee's functions, and not his designation or title, which determines
whether or not a position is primarily confidential, and that while
Presidential Decree No. 1869 may have declared all PAGCOR employees to
be confidential appointees, such executive pronouncement may be
considered as a mere initial determination of the classification of positions
which is not conclusive in case of conflict, in light of the ruling enunciated
in Tria vs. Sto. Tomas, et al. 6
We find no merit in the petition and consequently hold that the same
should be, as it is hereby, denied.
Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant
to the provisions of Section 16(e) of Republic Act No. 2260 (Civil Service Act
of 1959), which was then in force when Presidential Decree No 1869
creating the Philippine Amusement and Gaming Corporation was passed,
provided that "upon recommendation of the Commissioner, the President
may declare a position as policy-determining, primarily confidential, or
highly technical in nature." It appears that Section 16 of Presidential Decree
No. 1869 was predicated t thereon, with the text thereof providing as
follows:
All positions in the corporation, whether technical, administrative,
professional or managerial are exempt from the provisions of the Civil
Service Law, rules and regulations, and shall be governed only by the
personnel management policies set by the Board of Directors. All
employees of the casinos and related services shall be classified as
"confidential" appointees.
On the strength of this statutory declaration, petitioner PAGCOR terminated
the services of respondent Salas for lack of confidence after it supposedly
found that the latter was engaged in proxy betting. In upholding the
dismissal of respondent Salas, the CSC ruled that he is considered a
confidential employee by operation of law, hence there is no act of
dismissal to speak of but a mere expiration of a confidential employee's

term of office, such that a complaint for illegal dismissal will not prosper in
this case for lack of legal basis.
In reversing the decision of the CSC, the Court of Appeals opined that the
provisions of Section 16 of Presidential Decree No. 1869 may no longer be
applied in the case at bar because the same is deemed to have been
repealed in its entirety by Section 2(1), Article IX-B of the 1987 Constitution.
7 This is not completely correct. On this point, we approve the more logical
interpretation advanced by the CSC to the effect that "Section 16 of PD
1869 insofar as it exempts PAGCOR positions from the provisions of Civil
Service Law and Rules has been amended, modified or deemed repealed by
the 1987 Constitution and Executive Order No. 292 (Administrative Code of
1987)."
However, the same cannot be said with respect to the last portion of
Section 16 which provides that "all employees of the casino and related
services shall be classified as 'confidential' appointees." While such
executive declaration emanated merely from the provisions of Section 2,
Rule XX of the implementing rules of the Civil Service Act of 1959, the
power to declare a position as policy-determining, primarily confidential or
highly technical as defined therein has subsequently been codified and
incorporated in Section 12(9), Book V of Executive Order No. 292 or the
administrative Code of
1987. 8 This later enactment only serves to bolster the validity of the
categorization made under Section 16 of Presidential Decree No. 1869. Be
that as it may, such classification is not absolute and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were
two recognized instances when a position may be considered primarily
confidential: Firstly, when the President, upon recommendation of the
Commissioner of Civil Service, has declared the position to be primarily
confidential; and, secondly, in the absence of such declaration, when by the
nature of the functions of the office there exists "close intimacy" between
the appointee and appointing power which insures freedom of intercourse
without embarrassment or freedom from misgivings of betrayals of
personal trust or confidential matters of state. 9
At first glance, it would seem that the instant case falls under the first
category by virtue of the express mandate under Section 16 of Presidential
Decree No. 1869. An in-depth analysis, however, of the second category
evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5
thereof provided that "the non-competitive or unclassified service shall be
composed of positions expressly declared by law to be in the noncompetitive 5
or unclassified service or those which are policy-determining,
primarily confidential, or highly technical in nature." In the case of Piero,
et al. vs. Hechanova, et al., 10 the Court obliged with a short discourse
there on how the phrase "in nature" came to find its way into the law, thus:
The change from the original wording of the bill (expressly declared by law .
. . to be policy-determining, etc.) to that finally approved and enacted ("or
which are policy-determining, etc. in nature") came about because of the
observations of Senator Taada, that as originally worded the proposed bill
gave Congress power to declare by fiat of law a certain position as primarily
confidential or policy-determining, which should not be the case. The
Senator urged that since-the Constitution speaks of positions which are

"primarily confidential, policy-determining or highly technical in nature," it

is not within the power of Congress to declare what positions are primarily
confidential or policy-determining. "It is the nature alone of the position
that determines whether it is policy-determining or primarily confidential."
Hence, the Senator further observed, the matter should be left to the
"proper implementation of the laws, depending upon the nature of the
position to be filled", and if the position is "highly confidential" then the
President and the Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, "But in positions that involved both
confidential matters and matters which are routine, . . . who is going to
determine whether it is primarily confidential?" Senator Taada replied:
SENATOR TAADA: Well, at the first instance, it is the appointing power that
determines that: the nature of the position. In case of conflict then it is the
Court that determines whether the position is primarily confidential or not
(Emphasis in the original text).
Hence the dictum that, at least since the enactment of the Civil Service Act
of 1959, it is the nature of the position which finally determines whether a
position is primarily confidential, policy-determining or highly technical. And
the Court in the aforecited case explicity decreed that executive
pronouncements, such as Presidential Decree No. 1869, can be no more
than initial determinations that are not conclusive in case of conflict. It
must be so, or else it would then lie within the discretion of the Chief
Executive to deny to any officer, by executive fiat, the protection of Section
4, Article XII (now Section 2[3], Article IX-B) of the Constitution. 11 In other
words, Section 16 of Presidential Decree No. 1869 cannot be given a
literally stringent application without compromising the constitutionally
protected right of an employee to security of tenure.
The doctrinal ruling enunciated in Piero finds support in the 1935
Constitution and was reaffirmed in the 1973 Constitution, as well as in the
implementing rules of Presidential Decree No. 807, or the Civil Service
Decree of the Philippines. 12 It may well be observed that both the 1935
and 1973 Constitutions contain the provision, in Section 2, Article XII-B
thereof, that "appointments in the Civil Service, except as to those which
are policy-determining, primarily confidential, or highly technical in nature,
shall be made only according to merit and fitness, to be determined as far
as practicable by competitive examination." Corollarily, Section 5 of
Republic Act No. 2260 states that "the non-competitive or unclassified
service shall be composed of positions expressly declared by law to be in
the non-competitive or unclassified service or those which are policydetermining, primarily confidential, or highly technical in nature." Likewise,
Section 1 of the General Rules in the implementing rules of Presidential
Decree No. 807 states that "appointments in the Civil Service, except as to
those which are policy-determining, primarily confidential, or highly
technical in nature, shall be made only according to merit and fitness to be
determined as far as practicable by competitive examination." Let it here
be emphasized, as we have accordingly italicized them, that these
fundamental laws and legislative or executive enactments all utilized the
phrase "in nature" to describe the character of the positions being
classified.
The question that may now be asked is whether the Piero doctrine to
the effect that notwithstanding any statutory classification to the contrary,
it is still the nature of the position, as may be ascertained by the court in

case of conflict, which finally determines whether a position is primarily

confidential, policy-determining or highly technical is still controlling with
the advent of the 1987 Constitution and the Administrative Code of 1987,
13 Book V of which deals specifically with the Civil Service Commission,
considering that from these later enactments, in defining positions which
are policy-determining, primarily confidential or highly technical, the phrase
"in nature" was deleted. 14

For instance, I have just mentioned a position in the Atomic Energy

Commission. Shall we require a physicist to undergo a competitive
examination before appointment? Or a confidential secretary or any
position in policy-determining administrative bodies, for that matter? There
are other ways of determining merit and fitness than competitive
examination. This is not a denial of the requirement of merit and fitness
(Emphasis supplied). 15

We rule in the affirmative. The matter was clarified and extensively

discussed during the deliberations in the plenary session of the 1986
Constitutional Commission on the Civil Service provisions, to wit:

It is thus clearly deducible, if not altogether apparent, that the primary

purpose of the framers of the 1987 Constitution in providing for the
declaration of a position as policy-determining, primarily confidential or
highly technical is to exempt these categories from competitive
examination as a means for determining merit and fitness. It must be
stressed further that these positions are covered by security of tenure,
although they are considered non-competitive only in the sense that
appointees thereto do not have to undergo competitive examinations for
purposes of determining merit and fitness.

MR. FOZ. Which department of government has the power or authority to

determine whether a position is policy-determining or primarily confidential
or highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the
executive department, but the final decision is done by the court. The
Supreme Court has constantly held that whether or not a position is policydetermining, primarily confidential or highly technical, it is determined not
by the title but by the nature of the task that is entrusted to it. For instance,
we might have a case where a position is created requiring that the holder
of that position should be a member of the Bar and the law classifies this
position as highly technical. However, the Supreme Court has said before
that a position which requires mere membership in the Bar is not a highly
technical position. Since the term "highly technical" means something
beyond the ordinary requirements of the profession, it is always a question
of fact.
MR. FOZ. Does not Commissioner Bernas agree that the general rule should
be that the merit system or the competitive system should be upheld?
FR. BERNAS. I agree that that should be the general rule; that is why we are
putting this as an exception.
MR. FOZ. The declaration that certain positions are policy-determining,
primarily confidential or highly technical has been the source of practices
which amount to the spoils system.
FR. BERNAS. The Supreme Court has always said that, but if the law of the
administrative agency says that a position is primarily confidential when in
fact it is not, we can always challenge that in court. It is not enough that
the law calls it primarily confidential to make it such; it is the nature of the
duties which makes a position primarily confidential.

6 effect of a declaration that a position is policy-determining,

MR. FOZ. The
primarily confidential or highly technical as an exception is to take it
away from the usual rules and provisions of the Civil Service Law and to
place it in a class by itself so that it can avail itself of certain privileges not
available to the ordinary run of government employees and officers.
FR. BERNAS. As I have already said, this classification does not do away
with the requirement of merit and fitness. All it says is that there are
certain positions which should not be determined by competitive
examination.

In fact, the CSC itself ascribes to this view as may be gleaned from its
questioned resolution wherein it stated that "the declaration of a position
as primarily confidential if at all, merely exempts the position from the civil
service eligibility requirement." According, the Piero doctrine continues to
be applicable up to the present and is hereby maintained. Such being the
case, the submission that PAGCOR employees have been declared
confidential appointees by operation of law under the bare authority of CSC
Resolution No. 91-830 must be rejected.
We likewise find that in holding that herein private respondent is not a
confidential employee, respondent Court of Appeals correctly applied the
"proximity rule" enunciated in the early but still authoritative case of De los
Santos vs. Mallare, et al., 16 which held that:
Every appointment implies confidence, but much more than ordinary
confidence is reposed in the occupant of a position that is primarily
confidential. The latter phrase denotes not only confidence in the aptitude
of the appointee for the duties of the office but primarily close intimacy
which insures freedom of intercourse without embarrassment or freedom
from misgivings of betrayals of personal trust or confidential matters of
state. . . . (Emphasis supplied).
This was reiterated in Piero, et al. vs. Hechanova, et al., supra, the facts of
which are substantially similar to the case at bar, involving as it did
employees occupying positions in various capacities in the Port Patrol
Division of the Bureau of Customs. The Court there held that the mere fact
that the members of the Port Patrol Division are part of the Customs police
force is not in itself a sufficient indication that their positions are primarily
confidential. After quoting the foregoing passage from De los Santos, it
trenchantly declared:
As previously pointed out, there are no proven facts to show that there is
any such close intimacy and trust between the appointing power and the
appellees as would support a finding that confidence was the primary
reason for the existence of the positions held by them or for their
appointment thereto. Certainly, it is extremely improbable that the service
demands any such close trust and intimate relation between the appointing
official and, not one or two members alone but the entire Customs patrol

(Harbor Police) force, so that every member thereof can be said to hold
"primarily confidential" posts. (Emphasis supplied).
It can thus be safely determined therefrom that the occupant of a particular
position could be considered a confidential employee if the predominant
reason why he was chosen by the appointing authority was, to repeat, the
latter's belief that he can share a close intimate relationship with the
occupant which ensures freedom of discussion, without fear of
embarrassment or misgivings of possible betrayal of personal trust or
confidential matters of state. Withal, where the position occupied is remote
from that of the appointing authority, the element of trust between them is
no longer predominant. 17
Several factors lead to the conclusion that private respondent does not
enjoy such "close intimacy" with the appointing authority of PAGCOR which
would otherwise place him in the category of a confidential employee, to
wit:
1. As an Internal Security Staff member, private respondent
routinely
a. performs duty assignments at the gaming and/or non-gaming areas to
prevent irregularities, misbehavior, illegal transactions and other
anomalous activities among the employees and customers;
b. reports unusual incidents and related observations/information in
accordance with established procedures for infractions/mistakes committed
on the table and in other areas;
c. coordinates with CCTV and/or external security as necessary for the
prevention, documentation or suppression of any unwanted incidents at the
gaming and non-gaming areas;
d. acts as witness/representative of Security Department during chips
inventory, refills, yields, card shuffling and final shuffling;
e. performs escort functions during the delivery of table capital boxes,
refills and shoe boxes to the respective tables, or during transfer of yields
to Treasury. 18
Based on the nature of such functions of herein private respondent and as
found by respondent Court of Appeals, while it may be said that honesty
and integrity are primary considerations in his appointment as a member of
the ISS, his position does not involve "such close intimacy" between him
and the appointing authority, that is, the Chairman of PAGCOR, as would
7 from misgivings of betrayals of personal trust." 19
insure "freedom
2. Although appointed by the Chairman, ISS members do not directly report
to the Office of the Chairman in the performance of their official duties. An
ISS member is subject to the control and supervision of an Area Supervisor
who, in turn, only implements the directives of the Branch Chief Security
Officer. The latter is himself answerable to the Chairman and the Board of
Directors. Obviously, as the lowest in the chain of command, private
respondent does not enjoy that "primarily close intimacy" which
characterizes a confidential employee.

3. The position of an ISS member belongs to the bottom level of the salary
scale of the corporation, being in Pay Class 2 level only, whereas the
highest level is Pay Class 12.
Taking into consideration the nature of his functions, his organizational
ranking and his compensation level, it is obviously beyond debate that
private respondent cannot be considered a confidential employee. As set
out in the job description of his position, one is struck by the ordinary,
routinary and quotidian character of his duties and functions. Moreover, the
modest rank and fungible nature of the position occupied by private
respondent is underscored by the fact that the salary attached to it is a
meager P2,200.00 a month. There thus appears nothing to suggest that
private respondent's position was "highly" or, much less, "primarily"
confidential in nature. The fact that, sometimes, private respondent may
handle ordinarily "confidential matters" or papers which are somewhat
confidential in nature does not suffice to characterize his position as
primarily confidential. 20
In addition, the allegation of petitioners that PAGCOR employees have been
declared to be confidential appointees in the case of Philippine Amusement
and Gaming Corporation vs. Court of Appeals, et al., ante, is misleading.
What was there stated is as follows:
The record shows that the separation of the private respondent was done in
accordance with PD 1869, which provides that the employees of the
PAGCOR hold confidential positions. Montoya is not assailing the validity of
that law. The act that he is questioning is what he calls the arbitrary
manner of his dismissal thereunder that he avers entitled him to damages
under the Civil Code. (Emphasis ours).
Thus, the aforecited case was decided on the uncontested assumption that
the private respondent therein was a confidential employee, for the simple
reason that the propriety of Section 16 of Presidential Decree No. 1869 was
never controverted nor raised as an issue therein. That decree was
mentioned merely in connection with its provision that PAGCOR employees
hold confidential positions. Evidently, therefore, it cannot be considered as
controlling in the case at bar. Even the fact that a statute has been
accepted as valid in cases where its validity was not challenged does not
preclude the court from later passing upon its constitutionality in an
appropriate cause where that question is squarely and properly raised.
Such circumstances merely reinforce the presumption of constitutionality of
the law. 21
WHEREFORE, the impugned judgment of respondent Court of Appeals is
hereby AFFIRMED in toto.

CSC V. JAVIER (2008)

Before the Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, seeking to reverse the Decision1 of the Court of Appeals
(CA) dated September 29, 2005, as well as its Resolution of June 5, 2006, in
CA-G.R. SP No. 88568, which set aside the resolutions and orders of the
Civil Service Commission (CSC) invalidating the appointment of respondent
as Corporate Secretary of the Board of Trustees of the Government Service
and Insurance System (GSIS).
The facts are undisputed.
According to her service record,2 respondent was first employed as Private
Secretary in the GSIS, a government owned and controlled corporation
(GOCC), on February 23, 1960, on a "confidential" status. On July 1, 1962,
respondent was promoted to Tabulating Equipment Operator with
"permanent" status. The "permanent" status stayed with respondent
throughout her career. She spent her entire career with GSIS, earning
several more promotions, until on December 16, 1986, she was appointed
Corporate Secretary of the Board of Trustees of the corporation.
On July 16, 2001, a month shy of her 64th birthday,3 respondent opted for
early retirement and received the corresponding monetary benefits.4
On April 3, 2002, GSIS President Winston F. Garcia, with the approval of the
Board of Trustees, reappointed respondent as Corporate Secretary, the
same position she left and retired from barely a year earlier. Respondent
was 64 years old at the time of her reappointment.5 In its Resolution, the
Board of Trustees classified her appointment as "confidential in nature and
the tenure of office is at the pleasure of the Board."6
Petitioner alleges that respondent's reappointment on confidential status
was meant to illegally extend her service and circumvent the laws on
compulsory retirement.7 This is because under Republic Act (R.A.) No.
8291, or the Government Service Insurance System Act of 1997, the
compulsory retirement age for government employees is 65 years, thus:
Sec. 13. x x x
(b) Unless the service is extended by appropriate authorities, retirement
shall be compulsory for an employee at sixty-five (65) years of age with at
least fifteen (15) years of service: Provided, That if he has less than fifteen
(15) years of service, he may be allowed to continue in the service in
accordance with existing civil service rules and regulations.

8 service regulations, those who are in primarily confidential

Under the civil
positions may serve even beyond the age of 65 years. Rule XIII of the
Revised Omnibus Rules on Appointments and Other Personnel Actions, as
amended, provides that:
Sec. 12. (a) No person who has reached the compulsory retirement age of
65 years can be appointed to any position in the government, subject only
to the exception provided under sub-section (b) hereof.
xxxx

b. A person who has already reached the compulsory retirement age of 65

can still be appointed to a coterminous/primarily confidential position in the
government.
A person appointed to a coterminous/primarily confidential position who
reaches the age of 65 is considered automatically extended in the service
until the expiry date of his/her appointment or until his/her services are
earlier terminated.8
It is for these obvious reasons that respondent's appointment was
characterized as "confidential" by the GSIS.
On October 10, 2002, petitioner issued Resolution No. 021314, invalidating
the reappointment of respondent as Corporate Secretary, on the ground
that the
position is a permanent, career position and not primarily confidential.9
On November 2, 2002, the CSC, in a letter of even date, through its
Chairperson Karina Constantino-David, informed GSIS of CSC's invalidation
of respondent's appointment, stating, thus:
Records show that Ms. Javier was formerly appointed as Corporate
Secretary in a "Permanent" capacity until her retirement in July 16, 2001.
The Plantilla of Positions shows that said position is a career position.
However, she was re-employed as Corporate Secretary, a position now
declared as confidential by the Board of Trustees pursuant to Board
Resolution No. 94 dated April 3, 2002.
Since the position was not declared primarily confidential by the Civil
Service Commission or by any law, the appointment of Ms. Javier as
Corporate Secretary is hereby invalidated.10
Respondent and GSIS sought to reconsider the ruling of petitioner. CSC
replied that the position of Corporate Secretary is a permanent (career)
position, and not primarily confidential (non-career); thus, it was wrong to
appoint respondent to this position since she no longer complies with
eligibility requirements for a permanent career status. More importantly, as
respondent by then has reached compulsory retirement at age 65,
respondent was no longer qualified for a permanent career position.11 With
the denial of respondent's plea for reconsideration, she filed a Petition for
Review with the Court of Appeals.
On September 29, 2005, the CA rendered a Decision setting aside the
resolution of petitioner invalidating respondent's appointment.12 The CA
ruled that in determining whether a position is primarily confidential or
otherwise, the nature of its functions, duties and responsibilities must be
looked into, and not just its formal classification.13 Examining the
functions, duties and responsibilities of the GSIS Corporate Secretary, the
CA concluded that indeed, such a position is primarily confidential in
nature.
Petitioner filed a motion for reconsideration, which was denied by the CA on
June 5, 2006.
Hence, herein petition.

The petition assails the CA Decision, contending that the position of

Corporate Secretary is a career position and not primarily confidential in
nature.14 Further, it adds that the power to declare whether any position in
government is primarily confidential, highly technical or policy determining
rests solely in petitioner by virtue of its constitutional power as the central
personnel agency of the government.15
Respondent avers otherwise, maintaining that the position of Corporate
Secretary is confidential in nature and that it is within the powers of the
GSIS Board of Trustees to declare it so.16 She argues that in determining
the proper classification of a position, one should be guided by the nature
of the office or position, and not by its formal designation.17
Thus, the Court is confronted with the following issues: whether the courts
may determine the proper classification of a position in government; and
whether the position of corporate secretary in a GOCC is primarily
confidential in nature.
The Court's Ruling
The courts may determine the proper
classification of a position in government.
Under Executive Order No. 292, or the Administrative Code of 1987, civil
service positions are currently classified into either 1) career service and 2)
non-career service positions.18
Career positions are characterized by: (1) entrance based on merit and
fitness to be determined as far as practicable by competitive examinations,
or based on highly technical qualifications; (2) opportunity for advancement
to higher career positions; and (3) security of tenure.19
In addition, the Administrative Code, under its Book V, sub-classifies career
positions according to "appointment status," divided into: 1) permanent which is issued to a person who meets all the requirements for the
positions to which he is being appointed, including the appropriate
eligibility prescribed, in accordance with the provisions of law, rules and
standards promulgated in pursuance thereof; and 2) temporary - which is
issued, in the absence of appropriate eligibles and when it becomes
necessary in the public interest to fill a vacancy, to a person who meets all
the requirements for the position to which he is being appointed except the
appropriate civil service eligibility; provided, that such temporary
appointment shall not exceed twelve months, and the appointee may be
replaced sooner if a qualified civil service eligible becomes available.20

9 do not fall under the career service are considered non-career

Positions that
positions, which are characterized by: (1) entrance on bases other than
those of the usual tests of merit and fitness utilized for the career service;
and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or
which is limited to the duration of a particular project for which purpose
employment was made.21
Examples of positions in the non-career service enumerated in the
Administrative Code are:
Sec. 9. Non-Career Service. - x x x

The Non-Career Service shall include:

(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions
at the pleasure of the President and their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of
office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the government is
in accordance with a special contract to undertake a specific work or job,
requiring special or technical skills not available in the employing agency,
to be accomplished within a specific period, which in no case shall exceed
one year, and performs or accomplishes the specific work or job, under his
own responsibility with a minimum of direction and supervision from the
hiring agency; and
(5) Emergency and seasonal personnel. (Emphasis supplied)
A strict reading of the law reveals that primarily confidential positions fall
under the non-career service. It is also clear that, unlike career positions,
primarily confidential and other non-career positions do not have security
of tenure. The tenure of a confidential employee is co-terminous with that
of the appointing authority, or is at the latter's pleasure. However, the
confidential employee may be appointed or remain in the position even
beyond the compulsory retirement age of 65 years.22
Stated differently, the instant petition raises the question of whether the
position of corporate secretary in a GOCC, currently classified by the CSC as
belonging to the permanent, career service, should be classified as
primarily confidential, i.e., belonging to the non-career service. The current
GSIS Board holds the affirmative view, which is ardently opposed by
petitioner. Petitioner maintains that it alone can classify government
positions, and that the determination it made earlier, classifying the
position of GOCC corporate secretary as a permanent, career position,
should be maintained.
At present, there is no law enacted by the legislature that defines or sets
definite criteria for determining primarily confidential positions in the civil
service. Neither is there a law that gives an enumeration of positions
classified as primarily confidential.
What is available is only petitioner's own classification of civil service
positions, as well as jurisprudence which describe or give examples of
confidential positions in government.
Thus, the corollary issue arises: should the Court be bound by a
classification of a position as confidential already made by an agency or
branch of government?
Jurisprudence establishes that the Court is not bound by the classification
of positions in the civil service made by the legislative or executive
branches, or even by a constitutional body like the petitioner.23 The Court
is expected to make its own determination as to the nature of a particular
position, such as whether it is a primarily confidential position or not,

without being bound by prior classifications made by other bodies.24 The

findings of the other branches of government are merely considered initial
and not conclusive to the Court.25 Moreover, it is well-established that in
case the findings of various agencies of government, such as the petitioner
and the CA in the instant case, are in conflict, the Court must exercise its
constitutional role as final arbiter of all justiciable controversies and
disputes.26
Piero v. Hechanova,27 interpreting R.A. No. 2260, or the Civil Service Act
of 1959, emphasized how the legislature refrained from declaring which
positions in the bureaucracy are primarily confidential, policy determining
or highly technical in nature, and declared that such a determination is
better left to the judgment of the courts. The Court, with the ponencia of
Justice J.B.L. Reyes, expounded, thus:
The change from the original wording of the bill (expressly declared by law
x x x to be policy determining, etc.) to that finally approved and enacted
("or which are policy determining, etc. in nature") came about because of
the observations of Senator Taada, that as originally worded the proposed
bill gave Congress power to declare by fiat of law a certain position as
primarily confidential or policy determining, which should not be the case.
The Senator urged that since the Constitution speaks of positions which are
"primarily confidential, policy determining or highly technical in nature," it
is not within the power of Congress to declare what positions are primarily
confidential or policy determining. "It is the nature alone of the position
that determines whether it is policy determining or primarily confidential."
Hence, the Senator further observed, the matter should be left to the
"proper implementation of the laws, depending upon the nature of the
position to be filled", and if the position is "highly confidential" then the
President and the Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, "But in positions that involved both
confidential matters and matters which are routine, x x x who is going to
determine whether it is primarily confidential?" Senator Taada replied:
"SENATOR TAADA: Well. at the first instance, it is the appointing power
that determines that: the nature of the position. In case of conflict then it is
the Court that determines whether the position is primarily confidential or
not.
"I remember a case that has been decided by the Supreme Court involving
the position of a district engineer in Baguio, and there. precisely, the nature
of the position was in issue. It was the Supreme Court that passed upon the
nature of the position, and held that the President could not transfer the
district engineer in Baguio against his consent."

Senator Taada,
0 therefore, proposed an amendment to section 5 of the bill,
deleting the words "to be" and inserting in lieu thereof the words "Positions
which are by their nature" policy determining, etc., and deleting the last
words "in nature". Subsequently, Senator Padilla presented an amendment
to the Taada amendment by adopting the very words of the Constitution,
i.e., "those which are policy determining, primarily confidential and highly
technical in nature". The Padilla amendment was adopted, and it was this
last wording with which section 5 was passed and was enacted (Senate
Journal, May 10, 1959, Vol. 11, No. 32, pp. 679-681).

It is plain that, at least since the enactment of the 1959 Civil Service Act (R.
A. 2260), it is the nature of the position which finally determines whether a
position is primarily confidential, policy determining or highly technical.
Executive pronouncements can be no more than initial determinations that
are not conclusive in case of conflict. And it must be so, or else it would
then lie within the discretion of title Chief Executive to deny to any officer,
by executive fiat, the protection of section 4, Article XII, of the
Constitution.28 (Emphasis and underscoring supplied)
This doctrine in Piero was reiterated in several succeeding cases.29
Presently, it is still the rule that executive and legislative identification or
classification of primarily confidential, policy-determining or highly
technical positions in government is no more than mere declarations, and
does not foreclose judicial review, especially in the event of conflict. Far
from what is merely declared by executive or legislative fiat, it is the nature
of the position which finally determines whether it is primarily confidential,
policy determining or highly technical, and no department in government is
better qualified to make such an ultimate finding than the judicial branch.
Judicial review was also extended to determinations made by petitioner. In
Grio v. Civil Service Commission,30 the Court held:
The fact that the position of respondent Arandela as provincial attorney has
already been classified as one under the career service and certified as
permanent by the Civil Service Commission cannot conceal or alter its
highly confidential nature. As in Cadiente where the position of the city
legal officer was duly attested as permanent by the Civil Service
Commission before this Court declared that the same was primarily
confidential, this Court holds that the position of respondent Arandela as
the provincial attorney of Iloilo is also a primarily confidential position. To
rule otherwise would be tantamount to classifying two positions with the
same nature and functions in two incompatible categories.31
The framers of the 1987 Constitution were of the same disposition. Section
2 (2) Article IX (B) of the Constitution provides that:
Appointments in the civil service shall be made only according to merit and
fitness to be determined, as far as practicable, and, except to positions
which are policy-determining, primarily confidential, or highly technical, by
competitive examination.
The phrase "in nature" after the phrase "policy-determining, primarily
confidential, or highly technical" was deleted from the 1987 Constitution.32
However, the intent to lay in the courts the power to determine the nature
of a position is evident in the following deliberation:
MR. FOZ. Which department of government has the power or authority to
determine whether a position is policy-determining or primarily confidential
or highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the
executive department, but the final decision is done by the court. The
Supreme Court has constantly held that whether or not a position is policydetermining, primarily confidential or highly technical, it is determined not
by the title but by the nature of the task that is entrusted to it. For instance,
we might have a case where a position is created requiring that the holder

of that position should be a member of the Bar and the law classifies this
position as highly technical. However, the Supreme Court has said before
that a position which requires mere membership in the Bar is not a highly
technical position. Since the term 'highly technical' means something
beyond the ordinary requirements of the profession, it is always a question
of fact.
MR. FOZ. Does not Commissioner Bernas agree that the general rule should
be that the merit system or the competitive system should be upheld?
FR. BERNAS. I agree that that it should be the general rule; that is why we
are putting this as an exception.
MR. FOZ. The declaration that certain positions are policy-determining,
primarily confidential or highly technical has been the source of practices
which amount to the spoils system.
FR. BERNAS. The Supreme Court has always said that, but if the law of the
administrative agency says that a position is primarily confidential when in
fact it is not, we can always challenge that in court. It is not enough that
the law calls it primarily confidential to make it such; it is the nature of the
duties which makes a position primarily confidential.
MR. FOZ. The effect of a declaration that a position is policy-determining,
primarily confidential or highly technical - as an exception - is to take it
away from the usual rules and provisions of the Civil Service Law and to
place it in a class by itself so that it can avail itself of certain privileges not
available to the ordinary run of government employees and officers.
FR. BERNAS. As I have already said, this classification does not do away
with the requirement of merit and fitness. All it says is that there are
certain positions which should not be determined by competitive
examination.
For instance, I have just mentioned a position in the Atomic Energy
Commission. Shall we require a physicist to undergo a competitive
examination before appointment? Or a confidential secretary or any
position in policy-determining administrative bodies, for that matter? There
are other ways of determining merit and fitness than competitive
examination. This is not a denial of the requirement of merit and fitness.33
(Emphasis supplied)
This explicit intent of the framers was recognized in Civil Service
Commission v. Salas,34 and Philippine Amusement and Gaming Corporation
v. Rilloraza,35 which leave no doubt that the question of whether the
1
position of Corporate
Secretary of GSIS is confidential in nature may be
determined 1
by the Court.
The position of corporate secretary in a government owned
and controlled corporation, currently classified as a permanent
career position, is primarily confidential in nature.
First, there is a need to examine how the term "primarily confidential in
nature" is described in jurisprudence. According to Salas,36
Prior to the passage of the x x x Civil Service Act of 1959 (R.A. No. 2260),
there were two recognized instances when a position may be considered

primarily confidential: Firstly, when the President, upon recommendation of

the Commissioner of Civil Service, has declared the position to be primarily
confidential; and, secondly in the absence of such declaration, when by the
nature of the functions of the office there exists "close intimacy" between
the appointee and appointing power which insures freedom of intercourse
without embarrassment or freedom from misgivings of betrayals of
personal trust or confidential matters of state.37 (Emphasis supplied)
However, Salas declared that since the enactment of R.A. No. 2260 and
Piero,38 it is the nature of the position which finally determines whether a
position is primarily confidential or not, without regard to existing executive
or legislative pronouncements either way, since the latter will not bind the
courts in case of conflict.
A position that is primarily confidential in nature is defined as early as 1950
in De los Santos v. Mallare,39 through the ponencia of Justice Pedro Tuason,
to wit:
x x x These positions (policy-determining, primarily confidential and highly
technical positions), involve the highest degree of confidence, or are closely
bound up with and dependent on other positions to which they are
subordinate, or are temporary in nature. It may truly be said that the good
of the service itself demands that appointments coming under this category
be terminable at the will of the officer that makes them.
xxxx
Every appointment implies confidence, but much more than ordinary
confidence is reposed in the occupant of a position that is primarily
confidential. The latter phrase denotes not only confidence in the aptitude
of the appointee for the duties of the office but primarily close intimacy
which insures freedom of [discussion, delegation and reporting] without
embarrassment or freedom from misgivings of betrayals of personal trust
or confidential matters of state. x x x40 (Emphasis supplied)
Since the definition in De los Santos came out, it has guided numerous
other cases.41 Thus, it still stands that a position is primarily confidential
when by the nature of the functions of the office there exists "close
intimacy" between the appointee and appointing power which insures
freedom of intercourse without embarrassment or freedom from misgivings
of betrayals of personal trust or confidential matters of state.
In classifying a position as primarily confidential, its functions must not be
routinary, ordinary and day to day in character.42 A position is not
necessarily confidential though the one in office may sometimes handle
confidential matters or documents.43 Only ordinary confidence is required
for all positions in the bureaucracy. But, as held in De los Santos,[44] for
someone holding a primarily confidential position, more than ordinary
confidence is required.
In Ingles v. Mutuc,45 the Court, through Chief Justice Roberto Concepcion
as ponente, stated:
Indeed, physicians handle confidential matters. Judges, fiscals and court
stenographers generally handle matters of similar nature. The Presiding
and Associate Justices of the Court of Appeals sometimes investigate, by
designation of the Supreme Court, administrative complaints against

judges of first instance, which are confidential in nature. Officers of the

Department of Justice, likewise, investigate charges against municipal
judges. Assistant Solicitors in the Office of the Solicitor General often
investigate malpractice charges against members of the Bar. All of these
are "confidential" matters, but such fact does not warrant the conclusion
that the office or position of all government physicians and all Judges, as
well as the aforementioned assistant solicitors and officers of the
Department of Justice are primarily confidential in character.46 (Emphasis
supplied)

confidential, the Court took into consideration the proximity rule together
with the duties of the corporate secretary, enumerated as follows:70

It is from De los Santos that the so-called "proximity rule" was derived. A
position is considered to be primarily confidential when there is a primarily
close intimacy between the appointing authority and the appointee, which
ensures the highest degree of trust and unfettered communication and
discussion on the most confidential of matters.47 This means that where
the position occupied is already remote from that of the appointing
authority, the element of trust between them is no longer predominant.48
On further interpretation in Grio, this was clarified to mean that a
confidential nature would be limited to those positions not separated from
the position of the appointing authority by an intervening public officer, or
series of public officers, in the bureaucratic hierarchy.49

3. Analyzes and evaluates the impact, effects and relevance of matters

under Board consideration on existing Board policies and provide the
individual Board members with these information so as to guide or
enlighten them in their Board decision;

Consequently, brought upon by their remoteness to the position of the

appointing authority, the following were declared by the Court to be not
primarily confidential positions: City Engineer;50 Assistant Secretary to the
Mayor;51 members of the Customs Police Force or Port Patrol;52 Special
Assistant of the Governor of the Central Bank, Export Department;53 Senior
Executive Assistant, Clerk I and Supervising Clerk I and Stenographer in the
Office of the President;54 Management and Audit Analyst I of the Finance
Ministry Intelligence Bureau;55 Provincial Administrator;56 Internal Security
Staff of the Philippine Amusement and Gaming Corporation (PAGCOR);57
Casino Operations Manager;58 and Slot Machine Attendant.59 All positions
were declared to be not primarily confidential despite having been
previously declared such either by their respective appointing authorities or
the legislature.
The following were declared in jurisprudence to be primarily confidential
positions: Chief Legal Counsel of the Philippine National Bank;60
Confidential Agent of the Office of the Auditor, GSIS;61 Secretary of the
Sangguniang Bayan;62 Secretary to the City Mayor;63 Senior Security and
Security Guard in the Office of the Vice Mayor;64 Secretary to the Board of
a government corporation;65 City Legal Counsel, City Legal Officer or City
Attorney;66 Provincial Attorney;67 Private Secretary;68 and Board
Secretary II of the Philippine State College of Aeronautics.69

1
In fine, a primarily
confidential position is characterized by the close
proximity of2the positions of the appointer and appointee as well as the
high degree of trust and confidence inherent in their relationship.
Ineluctably therefore, the position of Corporate Secretary of GSIS, or any
GOCC, for that matter, is a primarily confidential position. The position is
clearly in close proximity and intimacy with the appointing power. It also
calls for the highest degree of confidence between the appointer and
appointee.
In classifying the position of Corporate Secretary of GSIS as primarily

1. Performs all duties, and exercises the power, as defined and enumerated
in Section 4, Title IX, P.D. No. 1146;
2. Undertakes research into past Board resolutions, policies, decisions,
directives and other Board action, and relate these to present matters
under Board consideration;

4. Records, documents and reproduces in sufficient number all proceedings

of Board meetings and disseminate relevant Board decisions/information to
those units concerned;
5. Coordinates with all functional areas and units concerned and monitors
the manner of implementation of approved Board resolutions, policies and
directives;
6. Maintains a permanent, complete, systematic and secure compilation of
all previous minutes of Board meetings, together with all their supporting
documents;
7. Attends, testifies and produces in Court or in administrative bodies duly
certified copies of Board resolutions, whenever required;
8. Undertakes the necessary physical preparations for scheduled Board
meetings;
9. Pays honoraria of the members of the Board who attend Board meetings;
10. Takes custody of
unauthorized use; and

the

corporate

seal

and

safeguards

against

11. Performs such other functions as the Board may direct and/or require.
The nature of the duties and functions attached to the position points to its
highly confidential character.71 The secretary reports directly to the board
of directors, without an intervening officer in between them.72 In such an
arrangement, the board expects from the secretary nothing less than the
highest degree of honesty, integrity and loyalty, which is crucial to
maintaining between them "freedom of intercourse without embarrassment
or freedom from misgivings or betrayals of personal trust or confidential
matters of state."73
The responsibilities of the corporate secretary are not merely clerical or
routinary in nature. The work involves constant exposure to sensitive policy
matters and confidential deliberations that are not always open to the
public, as unscrupulous persons may use them to harm the corporation.
Board members must have the highest confidence in the secretary to
ensure that their honest sentiments are always and fully expressed, in the
interest of the corporation. In this respect, the nature of the corporate
secretary's work is akin to that of a personal secretary of a public official, a

position long recognized to be primarily confidential in nature.74 The only

distinction is that the corporate secretary is secretary to the entire board,
composed of a number of persons, but who essentially act as one body,
while the private secretary works for only one person. However, the degree
of confidence involved is essentially the same.
Not only do the tasks listed point to sensitive and confidential acts that the
corporate secretary must perform, they also include "such other functions
as the Board may direct and/or require," a clear indication of a closely
intimate relationship that exists between the secretary and the board. In
such a highly acquainted relation, great trust and confidence between
appointer and appointee is required.
The loss of such trust or confidence could easily result in the board's
termination of the secretary's services and ending of his term. This is
understandably justified, as the board could not be expected to function
freely with a suspicious officer in its midst. It is for these same reasons that
jurisprudence, as earlier cited, has consistently characterized personal or
private secretaries, and board secretaries, as positions of a primarily
confidential nature.75
The CA did not err in declaring that the position of Corporate Secretary of
GSIS is primarily confidential in nature and does not belong to the career
service.
The Court is aware that this decision has repercussions on the tenure of
other corporate secretaries in various GOCCs. The officers likely assumed
their positions on permanent career status, expecting protection for their
tenure and appointments, but are now re-classified as primarily confidential
appointees. Such concern is unfounded, however, since the statutes
themselves do not classify the position of corporate secretary as
permanent and career in nature. Moreover, there is no absolute guarantee
that it will not be classified as confidential when a dispute arises. As earlier
stated, the Court, by legal tradition, has the power to make a final
determination as to which positions in government are primarily
confidential or otherwise. In the light of the instant controversy, the Court's
view is that the greater public interest is served if the position of a
corporate secretary is classified as primarily confidential in nature.
Moreover, it is a basic tenet in the country's constitutional system that
"public office is a public trust,"76 and that there is no vested right in public
office, nor an absolute right to hold office.77 No proprietary title attaches to
a public office, as public service is not a property right.78 Excepting
constitutional offices which provide for special immunity as regards salary
and tenure, no one can be said to have any vested right in an office.79 The
1
rule is that offices
in government, except those created by the constitution,
may be abolished,
altered, or created anytime by statute.80 And any issues
3
on the classification for a position in government may be brought to and
determined by the courts.81
WHEREFORE, premises considered, the Petition is DENIED. The Decision of
the Court of Appeals dated September 29, 2005, in CA-G.R. SP No. 88568,
as well as its Resolution of June 5, 2006 are hereby AFFIRMED in toto.

GRINO V. CSC (1991)

The main issue in this petition is whether or not the position of a provincial
attorney and those of his legal subordinates are primarily confidential in
nature so that the services of those holding the said items can be
terminated upon loss of confidence.
The facts of this case are simple.
Petitioner Sixto Demaisip was the first appointed Provincial Attorney of
Iloilo. He held this position from April 3, 1973 up to June 2, 1986 when he
offered to resign and his resignation was accepted by the then Acting
Governor. In his resignation letter, petitioner Demaisip recommended the
elevation of respondent Teotimo Arandela from Senior Legal Officer to
Provincial Attorney. OIC Governor Licurgo Tirador later on decided to
appoint respondent Arandela as the Provincial Attorney. Respondent Cirilo
Gelvezon, on the other hand, was promoted from Legal Officer II to Senior
Legal Officer. Respondents Teodolfo Dato-on and Nelson Geduspan were
appointed to the position of Legal Officer II.
On February 2, 1988, petitioner Simplicio Grio assumed office as the newly
elected governor of Iloilo. One month later, he informed respondent
Arandela and all the legal officers at the Provincial Attorney's Office about
his decision to terminate their services. In his letter, petitioner Grio made
mention of an article pertaining to the Iloilo office of the Provincial Attorney
which appeared in the Panay News and which "undermined that trust and
confidence" that he reposed on them. Petitioner Demaisip was reappointed
by Governor Grio as the Provincial Attorney, The latter, on the other hand,
arranged the replacements of the other legal officers. Respondent Cirilo
Gelvezon was replaced by petitioner Santos Aguadera, respondent Nelson
Geduspan was replaced by petitioner Manuel Casumpang and petitioner
Manuel Travia took the place of respondent Teodolfo Dato-on.
On March 15, 1988, petitioner Governor Grio formally terminated the
services of the respondents herein on the ground of loss of trust and
confidence. This action taken by the governor was appealed by
respondents to the Merit Systems Protection Board of the Civil Service
Commission.
On March 9, 1989, the Merit Systems Board issued an Order declaring the
respondents' termination illegal and ordering that they be immediately
restored to their positions with back salaries and other emoluments due
them. This was appealed by petitioner Grio to the Civil Service
Commission.

1 No. 89-736 dated October 9, 1989, the Civil Service

In Resolution
Commission4affirmed the Order of the Merit Systems Protection Board, and
directed that the respondents be restored to their former legal positions
and be paid back salaries and other benefits.
Petitioners filed a Motion for Reconsideration of the above-mentioned
Decision of the Civil Service Commission. The motion was denied on
December 7, 1989 in Resolution No. 89-920.
Hence, this petition for review whereby petitioners seek the reversal of
Resolution No. 89-736 of the Civil Service Commission and Resolution No.
89-920 which denied the Motion for Reconsideration.

We shall first discuss whether the position of a provincial attorney is

primarily confidential so that the holder thereof may be terminated upon
loss of confidence.
In Cadiente vs. Santos, 1 this Court ruled that the position of a city legal
officer is undeniably one which is primarily confidential in this manner:
In resolving the merits of the instant case, We find as an undeniable fact
that the position of a City Legal Officer is one which is "primarily
confidential." This Court held in the case of Claudio vs. Subido, L-30865,
August 31, 1971, 40 SCRA 481, that the position of a City Legal Officer is
one requiring that utmost confidence on the part of the mayor be extended
to said officer. The relationship existing between a lawyer and his client,
whether a private individual or a public officer, is one that depends on the
highest degree of trust that the latter entertains for the counsel selected.
As stated in the case of Pinero vs. Hechanova, L-22562, October 22, 1966,
18 SCRA 417 (citing De los Santos vs. Mallare, 87 Phil. 289), the phrase
"primarily confidential" "denotes not only confidence in the aptitude of the
appointee for the duties of the office but primarily close intimacy which
insures freedom of intercourse, without embarrassment or freedom from
misgivings of betrayals of personal trust on confidential matters of state.
(Emphasis supplied.)
The tenure of officials holding primarily confidential positions ends upon
loss of confidence, because their term of office lasts only as long as
confidence in them endure; and thus their cessation involves no removal
(Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591-596). When
such confidence is lost and the officer holding such position is separated
from the service, such cessation entails no removal but an expiration of his
term. In the case of Hernandez vs. Villegas, L-17287, June 30, 1965, 14
SCRA 548, it was held
It is to be understood of course that officials and employees holding
primarily confidential positions continue only for so long as confidence in
them endures. The termination of their official relation can be justified on
the ground of loss of confidence because in that case their cessation from
office involves no removal but merely the expiration of the term of office
two different causes for the termination of official relations recognized in
the Law of Public Officers.
In the case at bar, when the respondent City Mayor of Davao terminated
the services of the petitioner, he was not removed or dismissed. There
being no removal or dismissal it could not, therefore, be said that there was
a violation of the constitutional provision that "no officer or employee in the
civil service shall be suspended or dismissed except for cause as provided
by law" (Article XII-B, Section 1 (3), 1973 Constitution).
The matter of expiration of a term of an officer holding a primarily
confidential position, as distinguished from a removal or dismissal, was
further explained by this Court, in the case of Ingles vs. Mutuc, L-20390,
November 29, 1960, 26 SCRA 171, in this wise:
When an incumbent of a primarily confidential position holds office at the
pleasure of the appointing power, and the pleasure turns into a displeasure,
the incumbent is not removed or dismissed from office his term merely
expires, in much the same way as an officer, whose right thereto ceases

upon expiration of the fixed term for which he had been appointed or
elected, is not and cannot be deemed removed or dismissed therefrom,
upon expiration of said term.
The main difference between the former the primary confidential officer
and the latter is that the latter's term is fixed or definite, whereas that of
the former is not pre-fixed, but indefinite, at the time of his appointment or
election, and becomes fixed and determined when the appointing power
expresses its decision to put an end to the services of the incumbent. When
this event takes place, the latter is not removed or dismissed from office
his term merely expired.
The foregoing merely elaborates what this Court, speaking thru Justice
J.B.L. Reyes, stressed in the case Corpus vs. Cuaderno, L-23721, March 31,
1965, 13 SCRA 591. In said case We stated that:
The tenure of officials holding primarily confidential positions ends upon
loss of confidence, because their term of office lasts only as long as
confidence in them endures, and thus their cessation involves no removal.
2
In Besa vs. Philippine National Bank, 3 where petitioner, who was the Chief
Legal Counsel with the rank of Vice President of the respondent Philippine
National Bank, questioned his being transferred to the position of
Consultant on Legal Matters in the Office of President, this Court,
considering said position to be primarily confidential held
It cannot be denied of course that the work of the Chief Legal Counsel of
respondent Bank, as of any lawyer for that matter, is impressed with a
highly technical aspect. As had been pointed out, however, it does not
mean that thereby a client is precluded from substituting in his stead
another practitioner. That is his right; Ms decision to terminate the
relationship once made is impressed with the attribute of finality. The
lawyer cannot be heard to complain; it is enough that his right to
compensation earned be duly respected.
In that sense, it is equally clear that where the position partakes of the
attributes of being both technical and confidential, there can be no
insistence of a fixed or a definite term if the latter aspect predominates. To
paraphrase the language of the Chief Justice in the opinion previously cited,
the incumbent of a primarily confidential position, as was the case of
petitioner, should realize that at any time the appointing power may decide
that his services are no longer needed. As thus correctly viewed, Corpus v.
Cuaderno cannot be read as lending support to petitioner's efforts to retain
his position as Chief Legal Counsel of respondent Bank, contrary to its
wishes as so1explicitly declared in its Resolution No. 1053.

The question now is should the ruling in Cadiente be made applicable to

a provincial attorney? According to the petitioners, Cadiente must be
applied because by the nature of the functions of a provincial attorney and
a city legal officer, their positions are both primarily confidential.
Respondents, on the other hand, maintain that since the Civil Service
Commission has already classified the position of private respondent
Arandela as a career position and certified the same as permanent, he is
removable only for cause, and therefore Cadiente is not applicable.

We agree with the petitioners and answer the question earlier propounded
in the affirmative. A city legal officer appointed by a city mayor to work for
and in behalf of the city has for its counterpart in the province a provincial
attorney appointed by the provincial governor. In the same vein, a
municipality may have a municipal attorney who is to be named by the
appointing power. The positions of city legal officer and provincial attorney
were created under Republic Act No. 5185 which categorized them together
as positions of "trust", to wit:
Sec. 19. Creation of positions of Provincial Attorney and City Legal officer.
To enable the provincial and city governments to avail themselves of the
full time and trusted services of legal officers, the positions of provincial
attorney and city legal officer may be created and such officials shall be
appointed in such manner as is provided for under Section four of this Act.
For this purpose the functions hitherto performed by the provincial and city
fiscals in serving as legal adviser and legal officer for civil cases of the
province and city shall be transferred to the provincial attorney and city
legal officer, respectively. (Emphasis supplied.) 4
By virtue of Republic Act No. 5185, both the provincial attorney and city
legal officer serve as the legal adviser and legal officer for the civil cases of
the province and the city that they work for. Their services are precisely
categorized by law to be "trusted services."
A comparison of the functions, powers and duties of a city legal officer as
provided in the Local Government Code with those of the provincial
attorney of Iloilo would reveal the close similarity of the two positions. Said
functions clearly reflect the highly confidential nature of the two offices and
the need for a relationship based on trust between the officer and the head
of the local government unit he serves. The "trusted services" to be
rendered by the officer would mean such trusted services of a lawyer to his
client which is of the highest degree of trust. 5
The fact that the position of respondent Arandela as provincial attorney has
already been classified as one under the career service and certified as
permanent by the Civil Service Commission cannot conceal or alter its
highly confidential nature. As in Cadiente where the position of the city
legal officer was duly attested as permanent by the Civil Service
Commission before this Court declared that the same was primarily
confidential, this Court holds that the position of respondent Arandela as
the provincial attorney of Iloilo is also a primarily confidential position. To
rule otherwise would be tantamount to classifying two positions with the
same nature and functions in two incompatible categories. This being the
case, and following the principle that the tenure of an official holding a
primarily confidential position ends upon loss of confidence, 6 the Court
finds that private respondent Arandela was not dismissed or removed from
office when his services were terminated. His term merely expired.
The attorney-client relationship is strictly personal because it involves
mutual trust and confidence of the highest degree, irrespective of whether
the client is a private person or a government functionary. 7 The personal
character of the relationship prohibits its delegation in favor of another
attorney without the client's consent. 8
However, the legal work involved, as distinguished from the relationship,
can be delegated. 9 The practice of delegating work of a counsel to his
subordinates is apparent in the Office of the Provincial Attorney wherein it

can be gleaned from the power granted to such officer to exercise

administrative supervision and control over the acts and decision of his
subordinates. 10
It is therefore possible to distinguish positions in the civil service where
lawyers act as counsel in confidential and non-confidential positions by
simply looking at the proximity of the position in question in relation to that
of the appointing authority. Occupants of such positions would be
considered confidential employees if the predominant reason they were
chosen by the appointing authority is the latter's belief that he can share a
close intimate relationship with the occupant which measures freedom of
discussion, without fear of embarrassment or misgivings of possible
betrayal of personal trust on confidential matters of state. 11
This implies that positions in the civil service of such nature would be
limited to those not separated from the position of the appointing authority
by an intervening public officer, or series of public officers, in the
bureaucratic hierarchy. This is an additional reason why the positions of
"City Legal Officer" and "Private Secretary to the President" were
considered primarily confidential by the Court. 12 On the other hand, a
customs policeman serving in the Harbor Patrol, in relation to the
Commissioner of Customs, and an executive assistant, stenographer, or
clerk in the Office of the President, were not considered so by the Court.13
There is no need to extend the professional relationship to the legal staff
which assists the confidential employer above described. Since the
positions occupied by these subordinates are remote from that of the
appointing authority, the element of trust between them is no longer
predominant. The importance of these subordinates to the appointing
authority now lies in the contribution of their legal skills to facilitate the
work of the confidential employee. At this level of the bureaucracy, any
impairment of the appointing authority's interest as a client, which may be
caused through the breach of residual trust by any of these lower-ranked
lawyers, can be anticipated and prevented by the confidential employee, as
a reasonably competent office head, through the exercise of his power to
"review, approve, reverse, or modify" their acts and decisions. 14 At this
level, the client can be protected without need of imposing upon the lowerranked lawyers the fiduciary duties inherent in the attorney-client
relationship. Hence, there is now no obstacle to giving full effect to the
security of tenure principle to these members of the civil service.
Thus, with respect to the legal assistants or subordinates of the provincial
attorney namely, Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan,
the Cadiente and Besa rulings cannot apply. To recall, said cases specifically
dealt with the positions of city legal officer of the city and chief legal
counsel of 1
the PNB. There was no reference to their legal staff or
subordinates.
6 As head of their respective departments, the city legal
officer, the provincial attorney or the PNB chief legal counsel cannot be
likened to their subordinates. The latter have been employed due to their
technical qualifications. Their positions are highly technical in character and
not confidential, so they are permanent employees, and they belong to the
category of classified employees under the Civil Service Law. Thus, the
items of Senior Legal Officer and Legal Officer II remain permanent as
classified by the Civil Service Commission. Consequently, the holders of the
said items, being permanent employees, enjoy security of tenure as
guaranteed under the Constitution.

This notwithstanding, petitioners contend that respondents are estopped

from protesting the termination of their services because of their actions
which, if taken together, would allegedly reveal that they have accepted
their termination, such as: applying for clearances, not remaining in office
and signing their payroll for March 15, 1988 acknowledging therein that
their appointment "terminated/expired."
We cannot agree with petitioners in this regard. The respondents did the
above-mentioned acts because their services were actually dispensed with
by petitioner Governor Grio. As a consequence of their termination, they
could not remain in office and as required of any government employee
who is separated from the government service, they had to apply for
clearances. However, this did not mean that they believed in principle that
they were validly terminated. The same should not prevent them from later
on questioning the validity of said termination.
The facts clearly show that respondents protested their termination with
the Civil Service Commission within a month from the time of their
termination. The Court holds that the said protest was filed within a
reasonable period of time.
WHEREFORE, and in view of the foregoing, the petition is GRANTED with
respect to the position of provincial attorney of Iloilo. Respondent Teotimo
Arandela is hereby ordered to vacate said position upon the finality of this
Decision. The Decision of the respondent Civil Service Commission
pertaining to respondents Cirilo Gelvezon, Teodolfo Dato-on and Nelson
Geduspan is hereby AFFIRMED.

BRIONES V. OSMENA (1958)

1. PUBLIC OFFICERS; ABOLITION OF OFFICE; RIGHT CANNOT BE EXERCISED
IN VIOLATION OF CIVIL SERVICE LAW. While abolition of the office does
not imply removal of the incumbent, the rule is true only where the
abolition is made in good faith; the right to abolish can not be used to cover
the discharge of employees in violation of the civil service law nor can it be
exercised for personal or political reasons. (Gacho, Et. Al. v. Osmea, Et Al.,
103 Phil., 837.)
DECISION

Two (2) Laborers at P120 each per month P1,440.00

Two (2) Stenographers at P150 each per month P1,800.00
One Receptionist at P130 per month P 780.00
Public Relations Officer at P300 per month P1,800.00
Two Assistant Public Relations Officers at P150 each per
month P1,800.00
One Stenographer at P150 per month P 900.00

REYES, J.B.L., J.:

One Laborer at P120 per month P 720.00

This is an action for mandamus with damages, to declare the abolition of

petitioners positions void and to order the respondent City Mayor to
reinstate them to their former positions.

One Janitor at P120 per month P 720.00

Petitioner Concepcion G. Briones is a first grade civil service eligible. On

March 4, 1937, she was appointed Clerk-Stenographer in the Office of the
City Treasurer of Cebu and on August 5, 1937, she was transferred to the
Office of the City Mayor, in the same capacity as Clerk-Stenographer, but
with permanent status, since then she remained in service continuously,
receiving repeated promotions and increases in salary.

month P1,800.00

Petitioner Faustino O. Rosagaran, on the other hand, is a second grade civil

service eligible. He was employed in the Office of the City Mayor of Cebu
since July, 1940, and promoted to Administrative Officer. In 1955, he was
publicly declared and adjudged "Model Employee." (Annex "G", records, p.
22).
On January 5, 1956, the Municipal Board of the City of Cebu, acting upon
the request of the respondent City Mayor embodied in his letter, dated
January 4, 1956, passed Resolution No. 21, series of 1956, creating 35
positions in the City Mayors office, and appropriating therefor the
necessary amount for salaries for six months, the amounts of P28,000 for
office equipment, P2,000 for office supplies and an additional amount of
P10,000 for the City Mayors discretionary fund.
The new positions were:chanrob1es virtual 1aw library
Private Secretary at P255 a month P1,530.00

Assistant Private
7 Secretary at P215 a month P1,290.00
Two (2) Confidential Assistants at P200 each per month P2,400.00
Two (2) Liaison Officers at P250 each per month P3,000.00
One Driver at P175 per month P1,050.00
One Driver at P120 per month P 720.00
One Janitor at P120 per month P 720.00

Chief, Complaints and Investigation Division at P300 per

Two (2) Legal Assistants at P200 each per month P2,400.00

One Laborer at P120 per month P 720.00
One Janitor at P120 per month P 720.00
Three (3) Informers at P150 each per month P2,700.00
Seven (7) Informers at P120 each per month P5,040.00

Total P34,050.00

On February 14, 1956, the Municipal Board in its Resolution No. 187, series
of 1956, approved Ordinance No. 192, abolishing 15 positions in the City
Mayors office and 17 positions in the Office of the Municipal Board, or a
total of 32 positions in both offices. Among the positions abolished in the
Office of the City Mayor were those occupied by petitioners. (Exh. "H", pp.
23-24). The Ordinance was approved by the City Mayor on February 20,
1956.
Pursuant to said Ordinance No. 192, the City Mayor, on February 23, 1956,
wrote separate letters to petitioners notifying them of the abolition of their
positions and advising them of the termination of their services "effective
at the close of business hours on March 15, 1956." (Exhs. I and I-1, Records,
pp. 25-26). In reply thereto, petitioners Briones and Rosagaran,
respectively, wrote in March 1956, separate letters to the respondent City
Mayor (1) acknowledging receipt his letters of separation, (2) protesting the
abolition of their positions, and (3) informing him that they will not
relinquish their positions "until otherwise determined by higher competent
authorities or courts." (Exhs. J and J-1, Records, pp. 27-28).

As the respondent City Mayor persisted in terminating their services, added

to the fact that the respondents City Treasurer and City Auditor refused to
pay their salaries after March 16, 1956, petitioners filed the instant petition
for reinstatement, back salaries, moral damages and attorneys fees.
The Court of First Instance of Ceb decided in favor of the petitioners and
declared the abolition of their offices null and void for lack of approval of
the Department Head, as required by the Circular of April 3, 1954 and by
Executive Order No. 506, series of 1934; consequently, it rendered
judgment against defendants ordering them to reinstate the two petitioners
to their former positions and to pay their back salaries as well as the costs
of the suit. From this judgment the respondents appealed.
Appellants contend that the provisions of Executive Order No. 506, Series of
1934, as reiterated in the Provincial Circular of April 3, 1954, requiring
previous approval of the Department Head concerned before abolition of
positions by local legislative bodies can take effect, is no longer operative
since the Commonwealth, in view of the fact that the Constitution vests in
the President of the Philippines (Art. VII, section 10 (1) only general
supervision, and not control, over local governments. This contention is
sustained by the recent doctrines of this Court, particularly Rodriguez v.
Montinola (94 Phil., 964; 50 Off. Gaz., [10] 4820) and Dominguez v. Pascual
(101 Phil., 31).
The case of Pulutan v. Dizon, 99 Phil., 168; 52 Off. Gaz., 3047, invoked by
the trial court, is of no application since that case referred to police officers,
whose removal or suspension is governed by entirely different laws
(Executive Order No. 175, Series 1938, and Republic Act 557). Moreover, in
the Pulutan case, the validity and constitutionality of the Provincial Circular
and of Executive Order No. 506, supra, was not in issue.
Nevertheless, in our opinion, the decision appealed from should be
sustained, but on different grounds. Our review of the evidence on record
convinced us that the reasons given for the abolition of the positions of the
appellees (alleged to be economy and efficiency) are untrue, and constitute
a mere subterfuge for the removal without cause of the said appellees, in
violation of the security of Civil Service tenures as provided by the
Constitution.
Considering that the appellees have served in the office of the Mayor of
Cebu, since Commonwealth days, before the war; that their efficiency and
merit has been attested by repeated and constant promotions and
increases in salary; that petitioner Rosagaran was even proclaimed "Model
Employee" as recently as 1955; and that just a short time before the
1 positions, the respondents had created for the same office
abolition of their
of the City 8
Mayor no less than 35 new positions calling for an outlay of
P68,100 per annum, almost P6,000 a month, the excuse of promoting
efficiency and economy is most transparent and unimpressive. A decent
respect for the Civil Service provisions of our Constitution dictates that civil
service eligibles, like petitioners herein who have rendered long and
honorable service, should not be sacrificed in favor of non-eligibles given
positions of recent creation, nor should they be left at the mercy of political
changes. In Pulutan v. Dizon (supra) we said:jgc:chanrobles.com.ph
"It is evident that the mayor could not legally remove the petitioner without
cause, for being a member of the Civil Service, his tenure of office is

protected by Section 4, Article

says:chanrob1es virtual 1aw library

XII

of

the

Constitution,

which

No officer or employee in the Civil Service shall be removed or suspended

except for cause as provided by law.
The Committee on Civil Service of the Constitutional Convention, in
recommending said provision said:chanrob1es virtual 1aw library
. . . The merit system will be ineffective if no safeguards are placed around
the separation and removal of the public employees. The Committees
report requires that removal shall be made only for cause and in the
manner provided by law. This means that there should be bona fide reasons
and action may be taken only after the employee shall have been given a
fair hearing. This affords to public employees reasonable security of
tenure." (Aruego, The Framing of the Philippine Constitution, 1949 Ed., p.
567)
This Court has always upheld these salutary principles. In our recent
decision in Gacho, Et. Al. v. Osmea, etc. Et. Al., 94 Phil., 208, we ruled that
while abolition of the office does not imply removal of the incumbent, the
rule is true only where the abolition is made in good faith; that the right to
abolish can not be used to discharge employees in violation of the civil
service law nor can it be exercised for personal or political reasons. That
ruling is conclusive on the case now before us.
Appellants (respondents below) aver that the petition for mandamus should
have been dismissed because the appellees have not exhausted the
available administrative remedies. The Stipulation of Facts, however,
expressly admitted paragraph 18 of the petition, alleging "that all
administrative remedies have been exhausted by the petitioners for the
speedy and ample protection of their rights." (Records, p. 53). The
assignment of error is not only groundless but improper.
The decision appealed from is affirmed, with costs against respondents in
both instances. So ordered

ABAKADA GURO V. PURISIMA (2008)

This petition for prohibition1 seeks to prevent respondents from
implementing and enforcing Republic Act (RA) 93352 (Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and the Bureau of
Customs (BOC). The law intends to encourage BIR and BOC officials and
employees to exceed their revenue targets by providing a system of
rewards and sanctions through the creation of a Rewards and Incentives
Fund (Fund) and a Revenue Performance Evaluation Board (Board).3 It
covers all officials and employees of the BIR and the BOC with at least six
months of service, regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of
their revenue targets for the year, as determined by the Development
Budget and Coordinating Committee (DBCC). Any incentive or reward is
taken from the fund and allocated to the BIR and the BOC in proportion to
their contribution in the excess collection of the targeted amount of tax
revenue.5
The Boards in the BIR and the BOC are composed of the Secretary of the
Department of Finance (DOF) or his/her Undersecretary, the Secretary of
the Department of Budget and Management (DBM) or his/her
Undersecretary, the Director General of the National Economic
Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a representative
from the officials nominated by their recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the
allocation, distribution and release of the Fund; (2) set criteria and
procedures for removing from the service officials and employees whose
revenue collection falls short of the target; (3) terminate personnel in
accordance with the criteria adopted by the Board; (4) prescribe a system
for performance evaluation; (5) perform other functions, including the
issuance of rules and regulations and (6) submit an annual report to
Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC)
were tasked to promulgate and issue the implementing rules and
regulations of RA 9335,8 to be approved by a Joint Congressional Oversight
Committee created for such purpose.9

classification or distinction as to why such a system should not apply to

officials and employees of all other government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix
revenue targets to the President as it lacks a sufficient standard on that
matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC
officials may be dismissed from the service if their revenue collections fall
short of the target by at least 7.5%, the law does not, however, fix the
revenue targets to be achieved. Instead, the fixing of revenue targets has
been delegated to the President without sufficient standards. It will
therefore be easy for the President to fix an unrealistic and unattainable
target in order to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight
committee on the ground that it violates the doctrine of separation of
powers. While the legislative function is deemed accomplished and
completed upon the enactment and approval of the law, the creation of the
congressional oversight committee permits legislative participation in the
implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General,
question the petition for being premature as there is no actual case or
controversy yet. Petitioners have not asserted any right or claim that will
necessitate the exercise of this Courts jurisdiction. Nevertheless,
respondents acknowledge that public policy requires the resolution of the
constitutional issues involved in this case. They assert that the allegation
that the reward system will breed mercenaries is mere speculation and
does not suffice to invalidate the law. Seen in conjunction with the declared
objective of RA 9335, the law validly classifies the BIR and the BOC because
the functions they perform are distinct from those of the other government
agencies and instrumentalities. Moreover, the law provides a sufficient
standard that will guide the executive in the implementation of its
provisions. Lastly, the creation of the congressional oversight committee
under the law enhances, rather than violates, separation of powers. It
ensures the fulfillment of the legislative policy and serves as a check to any
over-accumulation of power on the part of the executive and the
implementing agencies.
After a careful consideration of the conflicting contentions of the parties,
the Court finds that petitioners have failed to overcome the presumption of
constitutionality in favor of RA 9335, except as shall hereafter be discussed.
Actual Case And Ripeness

Petitioners, invoking their right as taxpayers filed this petition challenging

1
the constitutionality
of RA 9335, a tax reform legislation. They contend that,
by establishing
9 a system of rewards and incentives, the law "transform[s]
the officials and employees of the BIR and the BOC into mercenaries and
bounty hunters" as they will do their best only in consideration of such
rewards. Thus, the system of rewards and incentives invites corruption and
undermines the constitutionally mandated duty of these officials and
employees to serve the people with utmost responsibility, integrity, loyalty
and efficiency.

An actual case or controversy involves a conflict of legal rights, an assertion

of opposite legal claims susceptible of judicial adjudication.10 A closely
related requirement is ripeness, that is, the question must be ripe for
adjudication. And a constitutional question is ripe for adjudication when the
governmental act being challenged has a direct adverse effect on the
individual challenging it.11 Thus, to be ripe for judicial adjudication, the
petitioner must show a personal stake in the outcome of the case or an
injury to himself that can be redressed by a favorable decision of the
Court.12

Petitioners also claim that limiting the scope of the system of rewards and
incentives only to officials and employees of the BIR and the BOC violates
the constitutional guarantee of equal protection. There is no valid basis for

In this case, aside from the general claim that the dispute has ripened into
a judicial controversy by the mere enactment of the law even without any
further overt act,13 petitioners fail either to assert any specific and

concrete legal claim or to demonstrate any direct adverse effect of the law
on them. They are unable to show a personal stake in the outcome of this
case or an injury to themselves. On this account, their petition is
procedurally infirm.
This notwithstanding, public interest requires the resolution of the
constitutional issues raised by petitioners. The grave nature of their
allegations tends to cast a cloud on the presumption of constitutionality in
favor of the law. And where an action of the legislative branch is alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and employees must at
all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism, and
justice, and lead modest lives.
Public office is a public trust. It must be discharged by its holder not for his
own personal gain but for the benefit of the public for whom he holds it in
trust. By demanding accountability and service with responsibility,
integrity, loyalty, efficiency, patriotism and justice, all government officials
and employees have the duty to be responsive to the needs of the people
they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of
their duties. This presumption necessarily obtains in favor of BIR and BOC
officials and employees. RA 9335 operates on the basis thereof and
reinforces it by providing a system of rewards and sanctions for the purpose
of encouraging the officials and employees of the BIR and the BOC to
exceed their revenue targets and optimize their revenue-generation
capability and collection.15
The presumption is disputable but proof to the contrary is required to rebut
it. It cannot be overturned by mere conjecture or denied in advance (as
petitioners would have the Court do) specially in this case where it is an
underlying principle to advance a declared public policy.

reinforces dedication to duty, industry, efficiency and loyalty to public

service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law
which awards to officers of the customs as well as other parties an amount
not exceeding one-half of the net proceeds of forfeitures in violation of the
laws against smuggling. Citing Dorsheimer v. United States,18 the U.S.
Supreme Court said:
The offer of a portion of such penalties to the collectors is to stimulate and
reward their zeal and industry in detecting fraudulent attempts to evade
payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled
to a reward when, as a consequence of their zeal in the enforcement of tax
and customs laws, they exceed their revenue targets. In addition, RA 9335
establishes safeguards to ensure that the reward will not be claimed if it
will be either the fruit of "bounty hunting or mercenary activity" or the
product of the irregular performance of official duties. One of these
precautionary measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the
BOC. The officials, examiners, and employees of the [BIR] and the [BOC]
who violate this Act or who are guilty of negligence, abuses or acts of
malfeasance or misfeasance or fail to exercise extraordinary diligence in
the performance of their duties shall be held liable for any loss or injury
suffered by any business establishment or taxpayer as a result of such
violation, negligence, abuse, malfeasance, misfeasance or failure to
exercise extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the
same conditions and among persons similarly situated; it is equality among
equals, not similarity of treatment of persons who are classified based on
substantial differences in relation to the object to be accomplished.19
When things or persons are different in fact or circumstance, they may be
treated in law differently. In Victoriano v. Elizalde Rope Workers Union,20
this Court declared:

A law enacted
by Congress enjoys the strong presumption of
0
constitutionality. To justify its nullification, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal one.16
To invalidate RA 9335 based on petitioners baseless supposition is an
affront to the wisdom not only of the legislature that passed it but also of
the executive which approved it.

The guaranty of equal protection of the laws is not a guaranty of equality in

the application of the laws upon all citizens of the [S]tate. It is not,
therefore, a requirement, in order to avoid the constitutional prohibition
against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons
according to the circumstances surrounding them. It guarantees equality,
not identity of rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the same. The
equal protection clause does not forbid discrimination as to things that are
different. It does not prohibit legislation which is limited either in the object
to which it is directed or by the territory within which it is to operate.

Public service is its own reward. Nevertheless, public officers may by law be
rewarded for exemplary and exceptional performance. A system of
incentives for exceeding the set expectations of a public office is not
anathema to the concept of public accountability. In fact, it recognizes and

The equal protection of the laws clause of the Constitution allows

classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not

Petitioners claim that the implementation of RA 9335 will turn BIR and BOC
officials and employees into "bounty hunters and mercenaries" is not only
without any factual and legal basis; it is also purely speculative.

invalid because of simple inequality. The very idea of classification is that of

inequality, so that it goes without saying that the mere fact of inequality in
no manner determines the matter of constitutionality. All that is required of
a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for
real differences, that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard
is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of
enacting laws over matters within its jurisdiction, the state is recognized as
enjoying a wide range of discretion. It is not necessary that the
classification be based on scientific or marked differences of things or in
their relation. Neither is it necessary that the classification be made with
mathematical nicety. Hence, legislative classification may in many cases
properly rest on narrow distinctions, for the equal protection guaranty does
not preclude the legislature from recognizing degrees of evil or harm, and
legislation is addressed to evils as they may appear.21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that is, a
classification that has a reasonable foundation or rational basis and not
arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR
and the BOC.23 Since the subject of the law is the revenue- generation
capability and collection of the BIR and the BOC, the incentives and/or
sanctions provided in the law should logically pertain to the said agencies.
Moreover, the law concerns only the BIR and the BOC because they have
the common distinct primary function of generating revenues for the
national government through the collection of taxes, customs duties, fees
and charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue,
which shall be headed by and subject to the supervision and control of the
Commissioner of Internal Revenue, who shall be appointed by the President
upon the recommendation of the Secretary [of the DOF], shall have the
following functions:
1.
2.
3.
4.
5.

Assess and collect all taxes, fees and charges and account for all
revenues collected;
Exercise duly delegated police powers for the proper performance of its
functions and duties;
Prevent2and prosecute tax evasions and all other illegal economic
activities;
1
Exercise supervision and control over its constituent and subordinate
units; and
Perform such other functions as may be provided by law.24

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be
headed and subject to the management and control of the Commissioner of
Customs, who shall be appointed by the President upon the

recommendation of the Secretary[of the DOF] and hereinafter referred to as

Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and
penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic
frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance
of vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports
under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.25
Both the BIR and the BOC are bureaus under the DOF. They principally
perform the special function of being the instrumentalities through which
the State exercises one of its great inherent functions taxation.
Indubitably, such substantial distinction is germane and intimately related
to the purpose of the law. Hence, the classification and treatment accorded
to the BIR and the BOC under RA 9335 fully satisfy the demands of equal
protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power: (1) the
completeness test and (2) the sufficient standard test. A law is complete
when it sets forth therein the policy to be executed, carried out or
implemented by the delegate.26 It lays down a sufficient standard when it
provides adequate guidelines or limitations in the law to map out the
boundaries of the delegates authority and prevent the delegation from
running riot.27 To be sufficient, the standard must specify the limits of the
delegates authority, announce the legislative policy and identify the
conditions under which it is to be implemented.28
RA 9335 adequately states the policy and standards to guide the President
in fixing revenue targets and the implementing agencies in carrying out the
provisions of the law. Section 2 spells out the policy of the law:
SEC. 2. Declaration of Policy. It is the policy of the State to optimize the
revenue-generation capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system
of rewards and sanctions through the creation of a Rewards and Incentives
Fund and a Revenue Performance Evaluation Board in the above agencies
for the purpose of encouraging their officials and employees to exceed their
revenue targets.
Section 4 "canalized within banks that keep it from overflowing"29 the
delegated power to the President to fix revenue targets:
SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund,
hereinafter referred to as the Fund, is hereby created, to be sourced from
the collection of the BIR and the BOC in excess of their respective revenue
targets of the year, as determined by the Development Budget and
Coordinating Committee (DBCC), in the following percentages:

Excess of Collection of the Excess the Revenue Targets

Percent (%) of the Excess Collection to Accrue to the Fund
30% or below
15%
More than 30%
15% of the first 30% plus 20% of the remaining excess
The Fund shall be deemed automatically appropriated the year immediately
following the year when the revenue collection target was exceeded and
shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection
expected of the BIR and the BOC for a given fiscal year as stated in the
Budget of Expenditures and Sources of Financing (BESF) submitted by the
President to Congress. The BIR and the BOC shall submit to the DBCC the
distribution of the agencies revenue targets as allocated among its
revenue districts in the case of the BIR, and the collection districts in the
case of the BOC.
xxx

xxx

xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection

expected respectively of the BIR and the BOC for a given fiscal year as
approved by the DBCC and stated in the BESF submitted by the President
to Congress.30 Thus, the determination of revenue targets does not rest
solely on the President as it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Boards authority
and identifies the conditions under which officials and employees whose
revenue collection falls short of the target by at least 7.5% may be
removed from the service:
SEC. 7. Powers and Functions of the Board. The Board in the agency shall
have the following powers and functions:
xxx

xxx

xxx

(b) To set the criteria and procedures for removing from service officials and
employees whose revenue collection falls short of the target by at least
seven and a half percent (7.5%), with due consideration of all relevant
factors affecting
the level of collection as provided in the rules and
2
regulations promulgated under this Act, subject to civil service laws, rules
2
and regulations and compliance with substantive and procedural due
process: Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not
exceeding two years in operation, as has no historical record of collection
performance that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee
in the middle of the period under consideration unless the transfer was due
to nonperformance of revenue targets or potential nonperformance of
revenue targets: Provided, however, That when the district or area of

responsibility covered by revenue or customs officials or employees has

suffered from economic difficulties brought about by natural calamities or
force majeure or economic causes as may be determined by the Board,
termination shall be considered only after careful and proper review by the
Board.
(c) To terminate personnel in accordance with the criteria adopted in the
preceding paragraph: Provided, That such decision shall be immediately
executory: Provided, further, That the application of the criteria for the
separation of an official or employee from service under this Act shall be
without prejudice to the application of other relevant laws on accountability
of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt
Practices Act;
xxx

xxx

xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and

employees of the BIR and the BOC. The guarantee of security of tenure only
means that an employee cannot be dismissed from the service for causes
other than those provided by law and only after due process is accorded
the employee.31 In the case of RA 9335, it lays down a reasonable
yardstick for removal (when the revenue collection falls short of the target
by at least 7.5%) with due consideration of all relevant factors affecting the
level of collection. This standard is analogous to inefficiency and
incompetence in the performance of official duties, a ground for disciplinary
action under civil service laws.32 The action for removal is also subject to
civil service laws, rules and regulations and compliance with substantive
and procedural due process.
At any rate, this Court has recognized the following as sufficient standards:
"public interest," "justice and equity," "public convenience and welfare" and
"simplicity, economy and welfare."33 In this case, the declared policy of
optimization of the revenue-generation capability and collection of the BIR
and the BOC is infused with public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. There is hereby
created a Joint Congressional Oversight Committee composed of seven
Members from the Senate and seven Members from the House of
Representatives. The Members from the Senate shall be appointed by the
Senate President, with at least two senators representing the minority. The
Members from the House of Representatives shall be appointed by the
Speaker with at least two members representing the minority. After the
Oversight Committee will have approved the implementing rules and
regulations (IRR) it shall thereafter become functus officio and therefore
cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for
the purpose of approving the implementing rules and regulations (IRR)
formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it
approved the said IRR. From then on, it became functus officio and ceased
to exist. Hence, the issue of its alleged encroachment on the executive

function of implementing and enforcing the law may be considered moot

and academic.
This notwithstanding, this might be as good a time as any for the Court to
confront the issue of the constitutionality of the Joint Congressional
Oversight Committee created under RA 9335 (or other similar laws for that
matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the
concept of congressional oversight in Macalintal v. Commission on
Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities undertaken
by Congress to enhance its understanding of and influence over the
implementation of legislation it has enacted. Clearly, oversight concerns
post-enactment measures undertaken by Congress: (a) to monitor
bureaucratic compliance with program objectives, (b) to determine whether
agencies are properly administered, (c) to eliminate executive waste and
dishonesty, (d) to prevent executive usurpation of legislative authority, and
(d) to assess executive conformity with the congressional perception of
public interest.
The power of oversight has been held to be intrinsic in the grant of
legislative power itself and integral to the checks and balances inherent in
a democratic system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight power with increased
frequency to check the perceived "exponential accumulation of power" by
the executive branch. By the beginning of the 20th century, Congress has
delegated an enormous amount of legislative authority to the executive
branch and the administrative agencies. Congress, thus, uses its oversight
power to make sure that the administrative agencies perform their
functions within the authority delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight
powers may be divided into three categories, namely: scrutiny,
investigation and supervision.

more intense digging of facts. The power of Congress to conduct

investigation is recognized by the 1987 Constitution under section 21,
Article VI, xxx
xxx
xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises its
oversight power is thru legislative supervision. "Supervision" connotes a
continuing and informed awareness on the part of a congressional
committee regarding executive operations in a given administrative area.
While both congressional scrutiny and investigation involve inquiry into
past executive branch actions in order to influence future executive branch
performance, congressional supervision allows Congress to scrutinize the
exercise of delegated law-making authority, and permits Congress to retain
part of that delegated authority.
Congress exercises supervision over the executive agencies through its
veto power. It typically utilizes veto provisions when granting the President
or an executive agency the power to promulgate regulations with the force
of law. These provisions require the President or an agency to present the
proposed regulations to Congress, which retains a "right" to approve or
disapprove any regulation before it takes effect. Such legislative veto
provisions usually provide that a proposed regulation will become a law
after the expiration of a certain period of time, only if Congress does not
affirmatively disapprove of the regulation in the meantime. Less frequently,
the statute provides that a proposed regulation will become law if Congress
affirmatively approves it.
Supporters of legislative veto stress that it is necessary to maintain the
balance of power between the legislative and the executive branches of
government as it offers lawmakers a way to delegate vast power to the
executive branch or to independent agencies while retaining the option to
cancel particular exercise of such power without having to pass new
legislation or to repeal existing law. They contend that this arrangement
promotes democratic accountability as it provides legislative check on the
activities of unelected administrative agencies. One proponent thus
explains:

b. Congressional investigation

It is too late to debate the merits of this delegation policy: the policy is too
deeply embedded in our law and practice. It suffices to say that the
complexities of modern government have often led Congress-whether by
actual or perceived necessity- to legislate by declaring broad policy goals
and general statutory standards, leaving the choice of policy options to the
discretion of an executive officer. Congress articulates legislative aims, but
leaves their implementation to the judgment of parties who may or may not
have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of our
constitutional scheme could be effected: Congress proposes, the Executive
disposes. One safeguard, of course, is the legislative power to enact new
legislation or to change existing law. But without some means of overseeing
post enactment activities of the executive branch, Congress would be
unable to determine whether its policies have been implemented in
accordance with legislative intent and thus whether legislative intervention
is appropriate.

While congressional scrutiny is regarded as a passive process of looking at

the facts that are readily available, congressional investigation involves a

Its opponents, however, criticize the legislative veto as undue

encroachment upon the executive prerogatives. They urge that any post-

a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of attention
2
to administrative
operations. Its primary purpose is to determine economy
and efficiency
3 of the operation of government activities. In the exercise of
legislative scrutiny, Congress may request information and report from the
other branches of government. It can give recommendations or pass
resolutions for consideration of the agency involved.
xxx

xxx

xxx

enactment measures undertaken by the legislative branch should be

limited to scrutiny and investigation; any measure beyond that would
undermine the separation of powers guaranteed by the Constitution. They
contend that legislative veto constitutes an impermissible evasion of the
Presidents veto authority and intrusion into the powers vested in the
executive or judicial branches of government. Proponents counter that
legislative veto enhances separation of powers as it prevents the executive
branch and independent agencies from accumulating too much power.
They submit that reporting requirements and congressional committee
investigations allow Congress to scrutinize only the exercise of delegated
law-making authority. They do not allow Congress to review executive
proposals before they take effect and they do not afford the opportunity for
ongoing and binding expressions of congressional intent. In contrast,
legislative veto permits Congress to participate prospectively in the
approval or disapproval of "subordinate law" or those enacted by the
executive branch pursuant to a delegation of authority by Congress. They
further argue that legislative veto "is a necessary response by Congress to
the accretion of policy control by forces outside its chambers." In an era of
delegated authority, they point out that legislative veto "is the most
efficient means Congress has yet devised to retain control over the
evolution and implementation of its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme
Court resolved the validity of legislative veto provisions. The case arose
from the order of the immigration judge suspending the deportation of
Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The
United States House of Representatives passed a resolution vetoing the
suspension pursuant to 244(c)(2) authorizing either House of Congress,
by resolution, to invalidate the decision of the executive branch to allow a
particular deportable alien to remain in the United States. The immigration
judge reopened the deportation proceedings to implement the House order
and the alien was ordered deported. The Board of Immigration Appeals
dismissed the aliens appeal, holding that it had no power to declare
unconstitutional an act of Congress. The United States Court of Appeals for
Ninth Circuit held that the House was without constitutional authority to
order the aliens deportation and that 244(c)(2) violated the constitutional
doctrine on separation of powers.
On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional.
But the Court shied away from the issue of separation of powers and
instead held that the provision violates the presentment clause and
bicameralism. It held that the one-house veto was essentially legislative in
purpose and effect. As such, it is subject to the procedures set out in Article
I of the Constitution requiring the passage by a majority of both Houses and
presentment to the President. x x x x x x x x x

Two weeks after

4 the Chadha decision, the Court upheld, in memorandum
decision, two lower court decisions invalidating the legislative veto
provisions in the Natural Gas Policy Act of 1978 and the Federal Trade
Commission Improvement Act of 1980. Following this precedence, lower
courts invalidated statutes containing legislative veto provisions although
some of these provisions required the approval of both Houses of Congress
and thus met the bicameralism requirement of Article I. Indeed, some of
these veto provisions were not even exercised.35 (emphasis supplied)
In Macalintal, given the concept and configuration of the power of
congressional oversight and considering the nature and powers of a

constitutional body like the Commission on Elections, the Court struck down
the provision in RA 9189 (The Overseas Absentee Voting Act of 2003)
creating a Joint Congressional Committee. The committee was tasked not
only to monitor and evaluate the implementation of the said law but also to
review, revise, amend and approve the IRR promulgated by the
Commission on Elections. The Court held that these functions infringed on
the constitutional independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not
unconstitutional per se, meaning, it neither necessarily constitutes an
encroachment on the executive power to implement laws nor undermines
the constitutional separation of powers. Rather, it is integral to the checks
and balances inherent in a democratic system of government. It may in fact
even enhance the separation of powers as it prevents the overaccumulation of power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond
the legislative sphere," the Constitution imposes two basic and related
constraints on Congress.37 It may not vest itself, any of its committees or
its members with either executive or judicial power.38 And, when it
exercises its legislative power, it must follow the "single, finely wrought and
exhaustively considered, procedures" specified under the Constitution,39
including the procedure for enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this should be
limited to scrutiny and investigation. In particular, congressional oversight
must be confined to the following:
(1) scrutiny based primarily on Congress power of appropriation and the
budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any
matter pertaining to their departments and its power of confirmation40 and
(2) investigation and monitoring41 of the implementation of laws pursuant
to the power of Congress to conduct inquiries in aid of legislation.42
Any action or step beyond that will undermine the separation of powers
guaranteed by the Constitution. Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an
administrative agency to present the proposed implementing rules and
regulations of a law to Congress which, by itself or through a committee
formed by it, retains a "right" or "power" to approve or disapprove such
regulations before they take effect. As such, a legislative veto in the form of
a congressional oversight committee is in the form of an inward-turning
delegation designed to attach a congressional leash (other than through
scrutiny and investigation) to an agency to which Congress has by law
initially delegated broad powers.43 It radically changes the design or
structure of the Constitutions diagram of power as it entrusts to Congress a
direct role in enforcing, applying or implementing its own laws.44
Congress has two options when enacting legislation to define national
policy within the broad horizons of its legislative competence.45 It can itself
formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with
those standards.46 In the latter case, the law must be complete in all its
essential terms and conditions when it leaves the hands of the

legislature.47 Thus, what is left for the executive branch or the concerned
administrative agency when it formulates rules and regulations
implementing the law is to fill up details (supplementary rule-making) or
ascertain facts necessary to bring the law into actual operation (contingent
rule-making).48
Administrative regulations enacted by administrative agencies to
implement and interpret the law which they are entrusted to enforce have
the force of law and are entitled to respect.49 Such rules and regulations
partake of the nature of a statute50 and are just as binding as if they have
been written in the statute itself. As such, they have the force and effect of
law and enjoy the presumption of constitutionality and legality until they
are set aside with finality in an appropriate case by a competent court.51
Congress, in the guise of assuming the role of an overseer, may not pass
upon their legality by subjecting them to its stamp of approval without
disturbing the calculated balance of powers established by the Constitution.
In exercising discretion to approve or disapprove the IRR based on a
determination of whether or not they conformed with the provisions of RA
9335, Congress arrogated judicial power unto itself, a power exclusively
vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be
subjected to approval by Congress as a condition for their effectivity
violates the cardinal constitutional principles of bicameralism and the rule
on presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative
and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal
laws)53 is vested in Congress which consists of two chambers, the Senate
and the House of Representatives. A valid exercise of legislative power
requires the act of both chambers. Corrollarily, it can be exercised neither
solely by one of the two chambers nor by a committee of either or both
chambers. Thus, assuming the validity of a legislative veto, both a singlechamber legislative veto and a congressional committee legislative veto
are invalid.
Additionally,2Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a
law, be presented to the President. If he approves the same, he shall sign it,
otherwise, he shall veto it and return the same with his objections to the
House where it originated, which shall enter the objections at large in its
Journal and proceed to reconsider it. If, after such reconsideration, twothirds of all the Members of such House shall agree to pass the bill, it shall
be sent, together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the Members
of that House, it shall become a law. In all such cases, the votes of each
House shall be determined by yeas or nays, and the names of the members

voting for or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated within
thirty days after the date of receipt thereof; otherwise, it shall become a
law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for
approval or veto. In the absence of presentment to the President, no bill
passed by Congress can become a law. In this sense, law-making under the
Constitution is a joint act of the Legislature and of the Executive. Assuming
that legislative veto is a valid legislative act with the force of law, it cannot
take effect without such presentment even if approved by both chambers
of Congress.
In sum, two steps are required before a bill becomes a law. First, it must be
approved by both Houses of Congress.54 Second, it must be presented to
and approved by the President.55 As summarized by Justice Isagani Cruz56
and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the
approval of bills:
A bill is introduced by any member of the House of Representatives or the
Senate except for some measures that must originate only in the former
chamber.
The first reading involves only a reading of the number and title of the
measure and its referral by the Senate President or the Speaker to the
proper committee for study.
The bill may be "killed" in the committee or it may be recommended for
approval, with or without amendments, sometimes after public hearings are
first held thereon. If there are other bills of the same nature or purpose,
they may all be consolidated into one bill under common authorship or as a
committee bill.
Once reported out, the bill shall be calendared for second reading. It is at
this stage that the bill is read in its entirety, scrutinized, debated upon and
amended when desired. The second reading is the most important stage in
the passage of a bill.
The bill as approved on second reading is printed in its final form and
copies thereof are distributed at least three days before the third reading.
On the third reading, the members merely register their votes and explain
them if they are allowed by the rules. No further debate is allowed.
Once the bill passes third reading, it is sent to the other chamber, where it
will also undergo the three readings. If there are differences between the
versions approved by the two chambers, a conference committee58
representing both Houses will draft a compromise measure that if ratified
by the Senate and the House of Representatives will then be submitted to
the President for his consideration.
The bill is enrolled when printed as finally approved by the Congress,
thereafter authenticated with the signatures of the Senate President, the
Speaker, and the Secretaries of their respective chambers59
The Presidents role in law-making.

The final step is submission to the President for approval. Once approved, it
takes effect as law after the required publication.60
Where Congress delegates the formulation of rules to implement the law it
has enacted pursuant to sufficient standards established in the said law,
the law must be complete in all its essential terms and conditions when it
leaves the hands of the legislature. And it may be deemed to have left the
hands of the legislature when it becomes effective because it is only upon
effectivity of the statute that legal rights and obligations become available
to those entitled by the language of the statute. Subject to the
indispensable requisite of publication under the due process clause,61 the
determination as to when a law takes effect is wholly the prerogative of
Congress.62 As such, it is only upon its effectivity that a law may be
executed and the executive branch acquires the duties and powers to
execute the said law. Before that point, the role of the executive branch,
particularly of the President, is limited to approving or vetoing the law.63
From the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. Under this principle, a
provision that requires Congress or its members to approve the
implementing rules of a law after it has already taken effect shall be
unconstitutional, as is a provision that allows Congress or its members to
overturn any directive or ruling made by the members of the executive
branch charged with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck down as
unconstitutional. While there may be similar provisions of other laws that
may be invalidated for failure to pass this standard, the Court refrains from
invalidating them wholesale but will do so at the proper time when an
appropriate case assailing those provisions is brought before us.64
The next question to be resolved is: what is the effect of the
unconstitutionality of Section 12 of RA 9335 on the other provisions of the
law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. If any provision of this Act is declared invalid
by a competent court, the remainder of this Act or any provision not
affected by such declaration of invalidity shall remain in force and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down
the following rules:

The general6
rule is that where part of a statute is void as repugnant to the
Constitution, while another part is valid, the valid portion, if separable from
the invalid, may stand and be enforced. The presence of a separability
clause in a statute creates the presumption that the legislature intended
separability, rather than complete nullity of the statute. To justify this
result, the valid portion must be so far independent of the invalid portion
that it is fair to presume that the legislature would have enacted it by itself
if it had supposed that it could not constitutionally enact the other. Enough
must remain to make a complete, intelligible and valid statute, which
carries out the legislative intent. x x x

The exception to the general rule is that when the parts of a statute are so
mutually dependent and connected, as conditions, considerations,
inducements, or compensations for each other, as to warrant a belief that
the legislature intended them as a whole, the nullity of one part will vitiate
the rest. In making the parts of the statute dependent, conditional, or
connected with one another, the legislature intended the statute to be
carried out as a whole and would not have enacted it if one part is void, in
which case if some parts are unconstitutional, all the other provisions thus
dependent, conditional, or connected must fall with them.
The separability clause of RA 9335 reveals the intention of the legislature to
isolate and detach any invalid provision from the other provisions so that
the latter may continue in force and effect. The valid portions can stand
independently of the invalid section. Without Section 12, the remaining
provisions still constitute a complete, intelligible and valid law which carries
out the legislative intent to optimize the revenue-generation capability and
collection of the BIR and the BOC by providing for a system of rewards and
sanctions through the Rewards and Incentives Fund and a Revenue
Performance Evaluation Board.
To be effective, administrative rules and regulations must be published in
full if their purpose is to enforce or implement existing law pursuant to a
valid delegation. The IRR of RA 9335 were published on May 30, 2006 in
two newspapers of general circulation66 and became effective 15 days
thereafter.67 Until and unless the contrary is shown, the IRR are presumed
valid and effective even without the approval of the Joint Congressional
Oversight Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA
9335 creating a Joint Congressional Oversight Committee to approve the
implementing rules and regulations of the law is declared
UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of
the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of
RA 9335, the rest of the provisions remain in force and effect.

CSC V. SOJOR (2008)

IS the president of a state university outside the reach of the disciplinary
jurisdiction constitutionally granted to the Civil Service Commission (CSC)
over all civil servants and officials?
Does the assumption by the CSC of jurisdiction over a president of a state
university violate academic freedom?
The twin questions, among others, are posed in this petition for review on
certiorari of the Decision1 of the Court of Appeals (CA) which annulled two
(2) CSC Resolutions2 against respondent Henry A. Sojor.
The Facts
The uncontroverted facts that led to the controversy, as found by the CSC
and the CA, are as follows:
On August 1, 1991, respondent Sojor was appointed by then President
Corazon Aquino as president of the Central Visayas Polytechnic College
(CVPC) in Dumaguete City. In June 1997, Republic Act (R.A.) No. 8292, or
the "Higher Education Modernization Act of 1997," was enacted. This law
mandated that a Board of Trustees (BOT) be formed to act as the governing
body in state colleges. The BOT of CVPC appointed respondent as
president, with a four-year term beginning September 1998 up to
September 2002.3 Upon the expiration of his first term of office in 2002, he
was appointed president of the institution for a second four-year term,
expiring on September 24, 2006.4
On June 25, 2004, CVPC was converted into the Negros Oriental State
University (NORSU).5 A Board of Regents (BOR) succeeded the BOT as its
governing body.
Meanwhile, three (3) separate administrative cases against respondent
were filed by CVPC faculty members before the CSC Regional Office (CSCRO) No. VII in Cebu City, to wit:
1. ADMC DC No. 02-20(A) Complaint for dishonesty, grave misconduct and
conduct prejudicial to the best interest of the service filed on June 26, 2002
by Jose Rene A. Cepe and Narciso P. Ragay. It was alleged that respondent
approved the release of salary differentials despite the absence of the
required Plantilla and Salary Adjustment Form and valid appointments.6
2. ADM DC No. 02-20 Complaint for dishonesty, misconduct and
falsification of official documents filed on July 10, 2002 by Jocelyn Juanon
and Carolina2Fe Santos. The complaint averred that respondent maliciously
allowed the 7antedating and falsification of the reclassification differential
payroll, to the prejudice of instructors and professors who have pending
request for adjustment of their academic ranks.7
3. ADM DC No. 02-21 Complaint for nepotism filed on August 15, 2002 by
Rose Marie Palomar, a former part-time instructor of CVPC. It was alleged
that respondent appointed his half-sister, Estrellas Sojor-Managuilas, as
casual clerk, in violation of the provisions against nepotism under the
Administrative Code.8

Before filing his counter-affidavits, respondent moved to dismiss the first

two complaints on grounds of lack of jurisdiction, bar by prior judgment and
forum shopping.
He claimed that the CSC had no jurisdiction over him as a presidential
appointee. Being part of the non-competitive or unclassified service of the
government, he was exclusively under the disciplinary jurisdiction of the
Office of the President (OP). He argued that CSC had no authority to
entertain, investigate and resolve charges against him; that the Civil
Service Law contained no provisions on the investigation, discipline, and
removal of presidential appointees. He also pointed out that the subject
matter of the complaints had already been resolved by the Office of the
Ombudsman.9
Finding no sufficient basis to sustain respondents arguments, the CSC-RO
denied his motion to dismiss in its Resolution dated September 4, 2002.10
His motion for reconsideration11 was likewise denied. Thus, respondent
was formally charged with three administrative cases, namely: (1)
Dishonesty, Misconduct, and Falsification of Official Document; (2)
Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest
of the Service; and (3) Nepotism.12
Respondent appealed the actions of the regional office to the Commission
proper (CSC), raising the same arguments in his motion to dismiss.13 He
argued that since the BOT is headed by the Committee on Higher Education
Chairperson who was under the OP, the BOT was also under the OP. Since
the president of CVPC was appointed by the BOT, then he was a
presidential appointee. On the matter of the jurisdiction granted to
CSC by virtue of Presidential Decree (P.D.) No. 80714 enacted in October
1975, respondent contended that this was superseded by the provisions of
R.A. No. 8292,15 a later law which granted to the BOT the power to remove
university officials.
CSC Disposition
In a Resolution dated March 30, 2004,16 the CSC dismissed respondents
appeal and authorized its regional office to proceed with the investigation.
He was also preventively suspended for 90 days. The fallo of the said
resolution states:
WHEREFORE, the appeal of Henry A. Sojor, President of Central Visayas
Polytechnic College, is hereby DISMISSED. The Civil Service Commission
Regional Office No. VII, Cebu City, is authorized to proceed with the formal
investigation of the cases against Sojor and submit the investigation
reports to the Commission within one hundred five (105) days from receipt
hereof. Finally, Sojor is preventively suspended for ninety (90) days.17
In decreeing that it had jurisdiction over the disciplinary case against
respondent, the CSC opined that his claim that he was a presidential
appointee had no basis in fact or in law. CSC maintained that it had
concurrent jurisdiction with the BOT of the CVPC. We quote:
His appointment dated September 23, 2002 was signed by then
Commission on Higher Education (CHED) Chairman Ester A. Garcia.
Moreover, the said appointment expressly stated that it was approved and
adopted by the Central Visayas Polytechnic College Board of Trustees on

August 13, 2002 in accordance with Section 6 of Republic Act No. 8292
(Higher education Modernization Act of 1997), which explicitly provides
that, "He (the president of a state college) shall be appointed by the Board
of Regents/Trustees, upon recommendation of a duly constituted search
committee." Since the President of a state college is appointed by the
Board of Regents/Trustees of the college concerned, it is crystal clear that
he is not a presidential appointee. Therefore, it is without doubt that Sojor,
being the President of a state college (Central Visayas Polytechnic College),
is within the disciplinary jurisdiction of the Commission.

resolutions and permanently enjoined the CSC from proceeding with the
administrative investigation. The dispositive part of the CA decision reads:

The allegation of appellant Sojor that the Commission is bereft of

disciplinary jurisdiction over him since the same is exclusively lodged in the
CVPC Board of Trustees, being the appointing authority, cannot be
considered. The Commission and the CVPC Board of Trustees have
concurrent jurisdiction over cases against officials and employees of the
said agency. Since the three (3) complaints against Sojor were filed with the
Commission and not with the CVPC, then the former already acquired
disciplinary jurisdiction over the appellant to the exclusion of the latter
agency.18 (Emphasis supplied)

SO ORDERED.22

The CSC categorized respondent as a third level official, as defined under

its rules, who are under the jurisdiction of the Commission proper.
Nevertheless, it adopted the formal charges issued by its regional office
and ordered it to proceed with the investigation:
Pursuant to the Uniform Rules on Administrative Cases in the Civil Service,
Sojor, being a third level official, is within the disciplinary jurisdiction of the
Commission Proper. Thus, strictly speaking, the Commission has the sole
jurisdiction to issue the formal charge against Sojor. x x x However, since
the CSC RO No. VII already issued the formal charges against him and
found merit in the said formal charges, the same is adopted. The CSC RO
No. VII is authorized to proceed with the formal investigation of the case
against Sojor in accordance with the procedure outlined in the aforestated
Uniform Rules.19 (Emphasis supplied)
No merit was found by the CSC in respondents motion for reconsideration
and, accordingly, denied it with finality on July 6, 2004.20
Respondent appealed the CSC resolutions to the CA via a petition for
certiorari and prohibition. He alleged that the CSC acted without or in
excess of its jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction when it issued the assailed resolutions; that
CSC encroached upon the academic freedom of CVPC; and that the power
to remove, suspend, and discipline the president of CVPC was exclusively
lodged in the BOT of CVPC.

2
CA Disposition
8

On September 29, 2004, the CA issued a writ of preliminary injunction

directing the CSC to cease and desist from enforcing its Resolution dated
March 30, 2004 and Resolution dated July 6, 2004.21 Thus, the formal
investigation of the administrative charges against Sojor before the CSC-RO
was suspended.
On June 27, 2005, after giving both parties an opportunity to air their sides,
the CA resolved in favor of respondent. It annulled the questioned CSC

WHEREFORE, in view of all the foregoing, and finding that the respondent
Civil Service Commission acted without jurisdiction in issuing the assailed
Resolution Nos. 040321 and 040766 dated March 20, 2004 and July 6,
2004, respectively, the same are hereby ANNULLED and SET ASIDE. The
preliminary injunction issued by this Court on September 29, 2004 is
hereby made permanent.

The CA ruled that the power to appoint carries with it the power to remove
or to discipline. It declared that the enactment of R.A. No. 929923 in 2004,
which converted CVPC into NORSU, did not divest the BOT of the power to
discipline and remove its faculty members, administrative officials, and
employees. Respondent was appointed as president of CVPC by the BOT by
virtue of the authority granted to it under Section 6 of R.A. No. 8292.24 The
power of the BOT to remove and discipline erring employees, faculty
members, and administrative officials as expressly provided for under
Section 4 of R.A. No. 8292 is also granted to the BOR of NORSU under
Section 7 of R.A. No. 9299. The said provision reads:
Power and Duties of Governing Boards. The governing board shall have
the following specific powers and duties in addition to its general powers of
administration and exercise of all the powers granted to the board of
directors of a corporation under Section 36 of Batas Pambansa Blg. 68,
otherwise known as the Corporation Code of the Philippines:
xxxx
to fix and adjust salaries of faculty members and administrative officials
and employees x x x; and to remove them for cause in accordance with the
requirements of due process of law. (Emphasis added)
The CA added that Executive Order (E.O.) No. 292,25 which grants
disciplinary jurisdiction to the CSC over all branches, subdivisions,
instrumentalities, and agencies of the government, including governmentowned or controlled corporations with original charters, is a general law.
According to the appellate court, E.O. No. 292 does not prevail over R.A. No.
9299,26 a special law.
Issues
Petitioner CSC comes to Us, seeking to reverse the decision of the CA on
the ground that THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
PETITIONER ACTED WITHOUT JURISDICTION IN ISSUING RESOLUTION NO.
040321 DATED MARCH 30, 2004 AND RESOLUTION NO. 04766 DATED JULY
6, 2004.27
Our Ruling
The petition is meritorious.
I. Jurisdiction of the CSC

The Constitution grants to the CSC administration over the entire civil
service.28 As defined, the civil service embraces every branch, agency,
subdivision, and instrumentality of the government, including every
government-owned or controlled corporation.29 It is further classified into
career and non-career service positions. Career service positions are those
where: (1) entrance is based on merit and fitness or highly technical
qualifications; (2) there is opportunity for advancement to higher career
positions; and (3) there is security of tenure. These include:
(1) Open Career positions for appointment to which prior qualification in an
appropriate examination is required;
(2) Closed Career positions which are scientific, or highly technical in
nature; these include the faculty and academic staff of state colleges and
universities, and scientific and technical positions in scientific or research
institutions which shall establish and maintain their own merit systems;
(3) Positions in the Career Executive Service; namely, Undersecretary,
Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional
Director, Assistant Regional Director, Chief of Department Service and other
officers of equivalent rank as may be identified by the Career Executive
Service Board, all of whom are appointed by the President;
(4) Career officers, other than those in the Career Executive Service, who
are appointed by the President, such as the Foreign Service Officers in the
Department of Foreign Affairs;
(5) Commissioned officers and enlisted men of the Armed Forces which
shall maintain a separate merit system;
(6) Personnel of government-owned or controlled corporations, whether
performing governmental or proprietary functions, who do not fall under
the non-career service; and
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.30
Career positions are further grouped into three levels. Entrance to the first
two levels is determined through competitive examinations, while entrance
to the third level is prescribed by the Career Executive Service Board.31
The positions covered by each level are:
(a) The first level shall include clerical, trades, crafts, and custodial service
positions which involve non-professional or subprofessional work in a nonsupervisory or supervisory capacity requiring less than four years of
collegiate studies;

(b) The second

9 level shall include professional, technical, and scientific
positions which involve professional, technical, or scientific work in a nonsupervisory or supervisory capacity requiring at least four years of college
work up to Division Chief level; and
(c) The third level shall cover positions in the Career Executive Service.32
On the other hand, non-career service positions are characterized by: (1)
entrance not by the usual tests of merit and fitness; and (2) tenure which is
limited to a period specified by law, coterminous with the appointing

authority or subject to his pleasure, or limited to the duration of a particular

project for which purpose employment was made.33 The law states:
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions
at the pleasure of the President and their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of
office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the government is
in accordance with a special contract to undertake a specific work or job,
requiring special or technical skills not available in the employing agency,
to be accomplished within a specific period, which in no case shall exceed
one year, and performs or accomplishes the specific work or job, under his
own responsibility with a minimum of direction and supervision from the
hiring agency; and
(5) Emergency and seasonal personnel.34
It is evident that CSC has been granted by the Constitution and the
Administrative Code jurisdiction over all civil service positions in the
government service, whether career or non-career. From this grant of
general jurisdiction, the CSC promulgated the Revised Uniform Rules on
Administrative Cases in the Civil Service.35 We find that the specific
jurisdiction, as spelled out in the CSC rules, did not depart from the general
jurisdiction granted to it by law. The jurisdiction of the Regional Office of the
CSC and the Commission central office (Commission Proper) is specified in
the CSC rules as:
Section 4. Jurisdiction of the Civil Service Commission. The Civil Service
Commission shall hear and decide administrative cases instituted by, or
brought before it, directly or on appeal, including contested appointments,
and shall review decisions and actions of its offices and of the agencies
attached to it.
Except as otherwise provided by the Constitution or by law, the Civil
Service Commission shall have the final authority to pass upon the
removal, separation and suspension of all officers and employees in the
civil service and upon all matters relating to the conduct, discipline and
efficiency of such officers and employees.
Section 5. Jurisdiction of the Civil Service Commission Proper. The Civil
Service Commission Proper shall have jurisdiction over the following cases:
A. Disciplinary
1. Decisions of Civil Service Regional Offices brought before it on petition
for review;
2. Decisions of heads of departments, agencies, provinces, cities,
municipalities and other instrumentalities, imposing penalties exceeding
thirty days suspension or fine in an amount exceeding thirty days salary
brought before it on appeal;

4. Complaints against third level officials who are not presidential

appointees;

Respondent, a state university president with a fixed term of office

appointed by the governing board of trustees of the university, is a noncareer civil service officer. He was appointed by the chairman and members
of the governing board of CVPC. By clear provision of law, respondent is a
non-career civil servant who is under the jurisdiction of the CSC.

5. Complaints against Civil Service officials and employees which are not
acted upon by the agencies and such other complaints requiring direct or
immediate action, in the interest of justice;

II. The power of the BOR to discipline officials and employees is not
exclusive. CSC has concurrent jurisdiction over a president of a state
university.

6. Requests for transfer of venue of hearing on cases being heard by Civil

Service Regional Offices;

Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of

1997, under which law respondent was appointed during the time material
to the present case, provides that the schools governing board shall have
the general powers of administration granted to a corporation. In addition,
Section 4 of the law grants to the board the power to remove school faculty
members, administrative officials, and employees for cause:

3. Complaints brought against Civil Service Commission Proper personnel;

7. Appeals from the Order of Preventive Suspension; and

8. Such other actions or requests involving issues arising out of or in
connection with the foregoing enumerations.
B. Non-Disciplinary
1. Decisions of Civil Service Commission Regional Offices brought before it;
2. Requests for favorable recommendation on petition for executive
clemency;
3. Protests against the appointment, or other personnel actions, involving
third level officials; and
4. Such other analogous actions or petitions arising out of or in relation with
the foregoing enumerations.
Section 6. Jurisdiction of Civil Service Regional Offices. The Civil Service
Commission Regional Offices shall have jurisdiction over the following
cases:
A. Disciplinary
1. Complaints initiated by, or brought before, the Civil Service Commission
Regional Offices provided that the alleged acts or omissions were
committed within the jurisdiction of the Regional Office, including Civil
Service examination anomalies or irregularities and the persons complained
of are employees of agencies, local or national, within said geographical
areas;
2. Complaints involving Civil Service Commission Regional Office personnel
3
who are appointees
of said office; and

3. Petitions to place respondent under Preventive Suspension.

B. Non-Disciplinary
1. Disapproval of appointments brought before it on appeal;
2. Protests against the appointments of first and second level employees
brought before it directly or on appeal. (Emphasis supplied)

Section 4. Powers and Duties of Governing Boards. The governing board

shall have the following specific powers and duties in addition to its general
powers of administration and the exercise of all the powers granted to the
board of directors of a corporation under Section 36 of Batas Pambansa Blg.
68, otherwise known as the Corporation Code of the Philippines:
xxxx
h) to fix and adjust salaries of faculty members and administrative officials
and employees subject to the provisions of the revised compensation and
classification system and other pertinent budget and compensation laws
governing hours of service, and such other duties and conditions as it may
deem proper; to grant them, at its discretion, leaves of absence under such
regulations as it may promulgate, any provisions of existing law to the
contrary not withstanding; and to remove them for cause in accordance
with the requirements of due process of law. (Emphasis supplied)
The above section was subsequently reproduced as Section 7(i) of the
succeeding law that converted CVPC into NORSU, R.A. No. 9299. Notably,
and in contrast with the earlier law, R.A. No. 9299 now provides that the
administration of the university and exercise of corporate powers of the
board of the school shall be exclusive:
Sec. 4. Administration. The University shall have the general powers of a
corporation set forth in Batas Pambansa Blg. 68, as amended, otherwise
known as "The Corporation Code of the Philippines." The administration of
the University and the exercise of its corporate powers shall be vested
exclusively in the Board of Regents and the president of the University
insofar as authorized by the Board.
Measured by the foregoing yardstick, there is no question that
administrative power over the school exclusively belongs to its BOR. But
does this exclusive administrative power extend to the power to remove its
erring employees and officials?
In light of the other provisions of R.A. No. 9299, respondents argument that
the BOR has exclusive power to remove its university officials must fail.
Section 7 of R.A. No. 9299 states that the power to remove faculty
members, employees, and officials of the university is granted to the BOR
"in addition to its general powers of administration." This provision is

essentially a reproduction of Section 4 of its predecessor, R.A. No. 8292,

demonstrating that the intent of the lawmakers did not change even with
the enactment of the new law. For clarity, the text of the said section is
reproduced below:
Sec. 7. Powers and Duties of the Board of Regents. The Board shall have
the following specific powers and duties in addition to its general powers of
administration and the exercise of all the powers granted to the Board of
Directors of a corporation under existing laws:
xxxx
i. To fix and adjust salaries of faculty members and administrative officials
and employees, subject to the provisions of the Revised Compensation and
Position Classification System and other pertinent budget and
compensation laws governing hours of service and such other duties and
conditions as it may deem proper; to grant them, at its discretion, leaves of
absence under such regulations as it may promulgate, any provision of
existing law to the contrary notwithstanding; and to remove them for cause
in accordance with the requirements of due process of law.36 (Emphasis
supplied)
Verily, the BOR of NORSU has the sole power of administration over the
university. But this power is not exclusive in the matter of disciplining and
removing its employees and officials.
Although the BOR of NORSU is given the specific power under R.A. No. 9299
to discipline its employees and officials, there is no showing that such
power is exclusive. When the law bestows upon a government body the
jurisdiction to hear and decide cases involving specific matters, it is to be
presumed that such jurisdiction is exclusive unless it be proved that
another body is likewise vested with the same jurisdiction, in which case,
both bodies have concurrent jurisdiction over the matter.37
All members of the civil service are under the jurisdiction of the CSC, unless
otherwise provided by law. Being a non-career civil servant does not
remove respondent from the ambit of the CSC. Career or non-career, a civil
service official or employee is within the jurisdiction of the CSC.
This is not a case of first impression.
In University of the Philippines v. Regino,38 this Court struck down the
claim of exclusive jurisdiction of the UP BOR to discipline its employees. The
Court held then:

3 Law (PD 807) expressly vests in the Commission appellate

The Civil Service
jurisdiction in
1 administrative disciplinary cases involving members of the
Civil Service. Section 9(j) mandates that the Commission shall have the
power to "hear and decide administrative disciplinary cases instituted
directly with it in accordance with Section 37 or brought to it on appeal."
And Section 37(a) provides that, "The Commission shall decide upon appeal
all administrative disciplinary cases involving the imposition of a penalty of
suspension for more than thirty (30) days, or fine in an amount exceeding
thirty days salary, demotion in rank or salary or transfer, removal or
dismissal from office." (Emphasis supplied)

Under the 1972 Constitution, all government-owned or controlled

corporations, regardless of the manner of their creation, were considered
part of the Civil Service. Under the 1987 Constitution, only governmentowned or controlled corporations with original charters fall within the scope
of the Civil Service pursuant to Article IX-B, Section 2(1), which states:
"The Civil Service embraces all branches, subdivisions, instrumentalities,
and agencies of the government, including government-owned or
controlled corporations with original charters."
As a mere government-owned or controlled corporation, UP was clearly a
part of the Civil Service under the 1973 Constitution and now continues to
be so because it was created by a special law and has an original charter.
As a component of the Civil Service, UP is therefore governed by PD 807
and administrative cases involving the discipline of its employees come
under the appellate jurisdiction of the Civil Service Commission.39
(Emphasis supplied)
In the more recent case of Camacho v. Gloria,40 this Court lent credence to
the concurrent jurisdiction of the CSC when it affirmed that a case against a
university official may be filed either with the universitys BOR or directly
with the CSC. We quote:
Further, petitioner contends that the creation of the committee by the
respondent Secretary, as Chairman of the USP Board of Regents, was
contrary to the Civil Service Rules. However, he cites no specific provision
of the Civil Service Law which was violated by the respondents in forming
the investigating committee. The Civil Service Rules embodied in Executive
Order 292 recognize the power of the Secretary and the university, through
its governing board, to investigate and decide matters involving disciplinary
action against officers and employees under their jurisdiction. Of course
under EO 292, a complaint against a state university official may be filed
either with the universitys Board of Regents or directly with the Civil
Service Commission, although the CSC may delegate the investigation of a
complaint and for that purpose, may deputize any department, agency,
official or group of officials to conduct such investigation.41 (Emphasis
supplied)
Thus, CSC validly took cognizance of the administrative complaints directly
filed before the regional office, concerning violations of civil service rules
against respondent.
III. Academic freedom may not be invoked when there are alleged violations
of civil service laws and rules.
Certainly, academic institutions and personnel are granted wide latitude of
action under the principle of academic freedom. Academic freedom
encompasses the freedom to determine who may teach, who may be
taught, how it shall be taught, and who may be admitted to study.42
Following that doctrine, this Court has recognized that institutions of higher
learning has the freedom to decide for itself the best methods to achieve
their aims and objectives, free from outside coercion, except when the
welfare of the general public so requires.43 They have the independence to
determine who to accept to study in their school and they cannot be
compelled by mandamus to enroll a student.44

That principle, however, finds no application to the facts of the present

case. Contrary to the matters traditionally held to be justified to be within
the bounds of academic freedom, the administrative complaints filed
against Sojor involve violations of civil service rules. He is facing charges of
nepotism, dishonesty, falsification of official documents, grave misconduct,
and conduct prejudicial to the best interest of the service. These are
classified as grave offenses under civil service rules, punishable with
suspension or even dismissal.45
This Court has held that the guaranteed academic freedom does not give
an institution the unbridled authority to perform acts without any statutory
basis.46 For that reason, a school official, who is a member of the civil
service, may not be permitted to commit violations of civil service rules
under the justification that he was free to do so under the principle of
academic freedom.
Lastly, We do not agree with respondents contention that his appointment
to the position of president of NORSU, despite the pending administrative
cases against him, served as a condonation by the BOR of the alleged acts
imputed to him. The doctrine this Court laid down in Salalima v. Guingona,
Jr.47 and Aguinaldo v. Santos48 are inapplicable to the present
circumstances. Respondents in the mentioned cases are elective officials,
unlike respondent here who is an appointed official. Indeed, election
expresses the sovereign will of the people.49 Under the principle of vox
populi est suprema lex, the re-election of a public official may, indeed,
supersede a pending administrative case. The same cannot be said of a reappointment to a non-career position. There is no sovereign will of the
people to speak of when the BOR re-appointed respondent Sojor to the post
of university president.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
is REVERSED and SET ASIDE. The assailed Resolutions of the Civil Service
Commission are REINSTATED.

3
2

CSC V. MAGNAYE (2010)

The Civil Service Commission (CSC) assails in this petition for review on
certiorari,1 the February 20, 2008 Decision2 and the June 11, 2008
resolution of the Court of Appeals (CA) in CA-G.R. SP No. 85508. The CA
reversed the July 20, 2004 Decision of the Civil Service Commission
Regional Office No. IV (CSCRO-IV) and ordered the reinstatement of
respondent Gregorio Magnaye, Jr. (Magnaye) with payment of backwages
and other monetary benefits.
THE FACTS
In March 2001, Mayor Roman H. Rosales of Lemery, Batangas, appointed
Magnaye as Utility Worker I at the Office of Economic Enterprise [Operation
of Market] (OEE). After a few days, Mayor Rosales detailed him to the
Municipal Planning and Development Office.
In the May elections of that year, Mayor Rosales was defeated by Raul L.
Bendaa, who assumed office on June 30, 2001. Thereafter, Magnaye was
returned to his original assignment at the OEE. On July 11, 2001, Bendaa
also placed him on detail at the Municipal Planning and Development Office
to assist in the implementation of a Survey on the Integrated Rural
Accessibility Planning Project.
On August 13, 2001, the new mayor served him a notice of termination
from employment effective the following day for unsatisfactory conduct and
want of capacity.
Magnaye questioned his termination before the CSC head office on the
ground that Mayor Bendaa was not in a position to effectively evaluate his
performance because it was made less than one and one-half months after
his (Mayor Bendaas) assumption to office. He added that his termination
was without basis and was politically motivated.
The CSC head office dismissed, without prejudice, Magnayes complaint
because he failed to attach a certificate of non-forum shopping. Thereafter,
Magnaye filed a complaint with the regional office of the Civil Service
(CSCRO-IV).
The CSCRO-IV dismissed Magnayes complaint for lack of merit. It upheld
his dismissal from the service on the ground that Mayor Bendaas own
assessment, together with the evaluation made by his supervisors,
constituted sufficient and reasonable grounds for his termination.
Magnaye sought recourse through a petition for review with the Court of
3 CSCRO-IVs alleged errors of fact and of law, nonAppeals, citing
observance 3
of due process, and grave abuse of discretion amounting to
lack or excess of jurisdiction. Adopting the stance of the Office of the
Solicitor General, the CA ruled in Magnayes favor, mainly on the ground
that he was denied due process since he was not informed of what
constituted the alleged unsatisfactory conduct and want of capacity that
led to his termination. It summarized the positions of the OSG as follows:
On January 18, 2005, the Office of the Solicitor General (OSG) filed its
manifestation and motion, in lieu of comment, praying that the assailed
decision be set aside. The OSG argued that Petitioners termination was
illegal. The notice of termination did not cite the specific instances

indicating Petitioners alleged unsatisfactory conduct or want of capacity. It

was only on July 29, 2003, or almost two years after Petitioners dismissal
on August 13, 2001 that his former Department Heads, Engr. Magsino and
Engr. Masongsong, submitted an assessment and evaluation report to
Mayor Bendaa, which the latter belatedly solicited when the Petitioner
appealed to the CSC Regional Office. Hence, the circumstances behind
Petitioners dismissal became questionable.
The OSG also found no evidence at the CSC Regional Office level that
Petitioner was informed of his alleged poor performance. There was no
evidence that Petitioner was furnished copies of 1) Mayor Bendaas letter,
dated July 29, 2003, addressed to CSC Regional Office praying that
Petitioners termination be sustained; and 2) the performance evaluation
report, dated July 29, 2003, prepared by Engr. Magsino and Engr.
Masongsong. The OSG claimed that Petitioner was denied due process
because his dismissal took effect a day after he received the notice of
termination. No hearing was conducted to give Petitioner the opportunity to
refute the alleged causes of his dismissal. The OSG agreed with Petitioners
claim that there was insufficient time for Mayor Bendaa to determine his
fitness or unfitness for the position.3 [Emphasis supplied]
Thus, the fallo of the CA Decision4 reads:
"WHEREFORE, the petition is Granted. The Civil Service Commission
Regional Office No. 4s Decision, dated July 20, 2004 is hereby Set Aside.
Accordingly, Petitioner is ORDERED REINSTATED with full payment of
backwages and other monetary benefits. This case is hereby REMANDED to
the Civil Service Commission for reception of such evidence necessary for
purposes of determining the amount of backwages and other monetary
benefits to which Petitioner is entitled.
SO ORDERED."
THE ISSUES
In this petition, the Civil Service Commission submits the following for our
consideration:
"I. The dropping of respondent from the rolls of the local government unit of
Lemery, Batangas was in accord with Civil Service Law, rules and
jurisprudence.
II. The respondent resorted to a wrong mode of appeal and violated the rule
on exhaustion of administrative remedies and the corollary doctrine of
primary jurisdiction."
The principal issue, therefore, is whether or not the termination of Magnaye
was in accordance with the pertinent laws and the rules.
The eligibility of respondent Magnaye has not been put in issue.
THE COURTS RULING
The Court upholds the decision of the Court of Appeals.

The CSC, in arguing that Magnayes termination was in accord with the Civil
Service law, cited Section 4(a), Rule II of the 1998 CSC Omnibus Rules on
Appointments and Other Personnel Actions which provides that:
Sec. 4. Nature of appointment. The nature of appointment shall be as
follows:
a. Original refers to the initial entry into the career service of persons who
meet all the requirements of the position. xxx
It is understood that the first six months of the service following an original
appointment will be probationary in nature and the appointee shall undergo
a thorough character investigation. A probationer may be dropped from the
service for unsatisfactory conduct or want of capacity anytime before the
expiration of the probationary period. Provided that such action is
appealable to the Commission.
However, if no notice of termination for unsatisfactory conduct is given by
the appointing authority to the employee before the expiration of the sixmonth probationary period, the appointment automatically becomes
permanent.
Under Civil Service rules, the first six months of service following a
permanent appointment shall be probationary in nature, and the
probationer may be dropped from the service for unsatisfactory conduct or
want of capacity anytime before the expiration of the probationary period.
5
The CSC is of the position that a civil service employee does not enjoy
security of tenure during his 6-month probationary period. It submits that
an employees security of tenure starts only after the probationary period.
Specifically, it argued that "an appointee under an original appointment
cannot lawfully invoke right to security of tenure until after the expiration of
such period and provided that the appointee has not been notified of the
termination of service or found unsatisfactory conduct before the expiration
of the same."6
The CSC position is contrary to the Constitution and the Civil Service Law
itself. Section 3 (2) Article 13 of the Constitution guarantees the rights of all
workers not just in terms of self-organization, collective bargaining,
peaceful concerted activities, the right to strike with qualifications, humane
conditions of work and a living wage but also to security of tenure, and
Section 2(3), Article IX-B is emphatic in saying that, "no officer or employee
of the civil service shall be removed or suspended except for cause as
provided by law."

Consistently,4 Section 46 (a) of the Civil Service Law provides that "no
officer or employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law after due process."
Our Constitution, in using the expressions "all workers" and "no officer or
employee," puts no distinction between a probationary and a permanent or
regular employee which means that both probationary and permanent
employees enjoy security of tenure. Probationary employees enjoy security
of tenure in the sense that during their probationary employment, they
cannot be dismissed except for cause or for failure to qualify as regular

employees. This was clearly stressed in the case of Land Bank of the
Philippines v. Rowena Paden,7 where it was written:
To put the case in its proper perspective, we begin with a discussion on the
respondent's right to security of tenure. Article IX (B), Section 2(3) of the
1987 Constitution expressly provides that
"[n]o officer or employee of the civil service shall be removed or suspended
except for cause provided by law." At the outset, we emphasize that the
aforementioned constitutional provision does not distinguish between a
regular employee and a probationary employee. In the recent case of Daza
v. Lugo8 we ruled that:
The Constitution provides that "[N]o officer or employee of the civil service
shall be removed or suspended except for cause provided by law." Sec. 26,
par. 1, Chapter 5, Book V, Title I-A of the Revised Administrative Code of
1987 states:
All such persons (appointees who meet all the requirements of the position)
must serve a probationary period of six months following their original
appointment and shall undergo a thorough character investigation in order
to acquire permanent civil service status. A probationer may be dropped
from the service for unsatisfactory conduct or want of capacity any time
before the expiration of the probationary period; Provided, That such action
is appealable to the Commission.
Thus, the services of respondent as a probationary employee may only be
terminated for a just cause, that is, unsatisfactory conduct or want of
capacity. [Emphasis supplied]
x x x.
X x x the only difference between regular and probationary employees from
the perspective of due process is that the latter's termination can be based
on the wider ground of failure to comply with standards made known to
them when they became probationary employees."
The constitutional and statutory guarantee of security of tenure is extended
to both those in the career and non-career service positions, and the cause
under which an employee may be removed or suspended must naturally
have some relation to the character or fitness of the officer or employee,
for the discharge of the functions of his office, or expiration of the project
for which the employment was extended. 9 Further, well-entrenched is the
rule on security of tenure that such an appointment is issued and the
moment the appointee assumes a position in the civil service under a
completed appointment, he acquires a legal, not merely equitable right (to
the position), which is protected not only by statute, but also by the
Constitution [Article IX-B, Section 2, paragraph (3)] and cannot be taken
away from him either by revocation of the appointment, or by removal,
except for cause, and with previous notice and hearing.10
While the CSC contends that a probationary employee does not enjoy
security of tenure, its Omnibus Rules recognizes that such an employee
cannot be terminated except for cause. Note that in the Omnibus Rules it
cited,11 a decision or order dropping a probationer from the service for
unsatisfactory conduct or want of capacity anytime before the expiration of

the probationary period "is appealable to the Commission." This can only
mean that a probationary employee cannot be fired at will.

terminated for unsatisfactory conduct or want of capacity, effective August

14, 2001.

Notably, jurisprudence has it that the right to security of tenure is

unavailing in certain instances. In Orcullo Jr. v. Civil Service Commission,12
it was ruled that the right is not available to those employees whose
appointments are contractual and co-terminous in nature. Such
employment is characterized by "a tenure which is limited to a period
specified by law, or that which is coterminous with the appointing authority
or subject to his pleasure, or which is limited to the duration of a particular
project for which purpose employment was made."13 In Amores M.D. v.
Civil Service Commission,14 it was held that a civil executive service
appointee who meets all the requirements for the position, except only the
appropriate civil service eligibility, holds the office in a temporary capacity
and is, thus, not entitled to a security of tenure enjoyed by permanent
appointees.1avvphi1

You are further notified that after a thorough character investigation made
during your such probationary period under my administration, your
appointment for employment need not be necessary to be automatically
permanent in status.18

Clearly, Magnayes appointment is entirely different from those situations.

From the records, his appointment was never classified as co-terminous or
contractual. Neither was his eligibility as a Utility Worker I challenged by
anyone.
In support of its position that an appointee cannot lawfully invoke the right
to a security of tenure during the probationary period, petitioner CSC
banked on the case of Lucero v. Court of Appeals and Philippine National
Bank.15 This case is, however, not applicable because it refers to a private
entity where the rules of employment are not exactly similar to those in the
government service.
Mayor Bendaa dismissed Magnaye for lack of capacity and unsatisfactory
conduct. Section 26, paragraph 1, Chapter 5, Book V, Title I-A of the
Revised Administrative Code of 1987 states:
(1)
Appointment through
certification.An
appointment through
certification to a position in the civil service, except as herein otherwise
provided, shall be issued to a person who has been selected from a list of
qualified persons certified by the Commission from an appropriate register
of eligibles, and who meets all the other requirements of the position.
All such persons must serve a probationary period of six months following
their original appointment and shall undergo a thorough character
investigation in order to acquire permanent civil service status. A
probationer may be dropped from the service for unsatisfactory conduct or
want of capacity any time before the expiration of the probationary period:
Provided, That such action is appealable to the Commission.

While unsatisfactory
conduct and want of capacity are valid causes that
5
may be invoked for dismissal from the service,16 the CA observed that the
Memorandum issued by Mayor Bendaa terminating Magnayes
employment did not specify the acts constituting his want of capacity and
unsatisfactory conduct. It merely stated that the character investigation
conducted during his probationary period showed that his employment
"need not be necessary to be permanent in status."17 Specifically, the
notice of termination partly reads:
You are hereby notified that your service as Utility Worker I, this
municipality under six (6) month probationary period, is considered

This notice indisputably lacks the details of Magnayes unsatisfactory

conduct or want of capacity. Section VI, 2.2(b) of the Omnibus Guidelines on
Appointments and other Personnel Actions (CSC Memorandum Circular No.
38, Series of 1993, as amended by CSC Memorandum Circular No. 12,
Series of 1994), provides:
2.2. Unsatisfactory or Poor Performance
xxx
b. An official who, for one evaluation period, is rated poor in performance,
may be dropped from the rolls after due notice. Due notice shall mean that
the officer or employee is informed in writing of the status of his
performance not later than the fourth month of that rating period with
sufficient warning that failure to improve his performance within the
remaining period of the semester shall warrant his separation from the
service. Such notice shall also contain sufficient information which shall
enable the employee to prepare an explanation. [Emphasis and
underscoring supplied]
Magnaye asserts that no performance evaluation was made between March
2001 when he was hired by Mayor Rosales until August 14, 2001 when his
services were terminated by Mayor Bendaa.19 It was only on July 29,
2003, at Mayor Bendaas behest, that his two supervisors prepared and
submitted the evaluation report after the CSCRO-IV directed him to file an
answer to Magnayes appeal.20
This has not been rebutted. It being not disputed, it was an error on the
part of the CSCRO-IV to rely on such belated performance appraisal.
Common sense dictates that the evaluation report, submitted only in 2003,
could not have been the basis for Magnayes termination.
Besides, Mayor Bendaas own assessment of Magnayes performance
could not have served as a sufficient basis to dismiss him because said
mayor was not his immediate superior and did not have daily contacts with
him. Additionally, Mayor Bendaa terminated his employment less than one
and one-half months after his assumption to office. This is clearly a short
period within which to assess his performance. In the case of Miranda v.
Carreon,21 it was stated:
The 1987 Constitution provides that "no officer or employee of the civil
service shall be removed or suspended except for cause provided by law."
Under the Revised Administrative Code of 1987, a government officer or
employee may be removed from the service
on two (2) grounds: (1) unsatisfactory conduct and (2) want of capacity.
While the Code does not define and delineate the concepts of these two
grounds, however, the Civil Service Law (Presidential Decree No. 807, as
amended) provides specific grounds for dismissing a government officer or

employee from the service. Among these grounds are inefficiency and
incompetence in the performance of official duties. In the case at bar,
respondents were dismissed on the ground of poor performance. Poor
performance falls within the concept of inefficiency and incompetence in
the performance of official duties which, as earlier mentioned, are grounds
for dismissing a government official or employee from the service.
But inefficiency or incompetence can only be determined after the passage
of sufficient time, hence, the probationary period of six (6) months for the
respondents. Indeed, to be able to gauge whether a subordinate is
inefficient or incompetent requires enough time on the part of his
immediate superior within which to observe his performance. This
condition, however, was not observed in this case. x x x. [Emphasis and
underscoring supplied]
The CSC is the central personnel agency of the government exercising
quasi-judicial functions.22 "In cases filed before administrative or quasijudicial bodies, a fact may be deemed established if it is supported by
substantial evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion."23 The
standard of substantial evidence is satisfied when, on the basis of the
evidence on record, there is reasonable ground to believe that the person
terminated was evidently wanting in capacity and had unsatisfactory
conduct. In this case, the evidence against Magnaye was woefully
inadequate.
Moreover, Magnaye was denied due process. We ruled in Tria v. Chairman
Patricia Sto. Tomas24 that the prohibition in Article IX (B) (2) (3) of the
Constitution against dismissal of a civil service officer or employee "except
for cause provided by law" is a guaranty of both procedural and substantive
due process. Procedural due process requires that the dismissal comes only
after notice and hearing,25 while substantive due process requires that the
dismissal be "for cause."26
Magnaye was denied procedural due process when he received his notice of
termination only a day before he was dismissed from the service. Evidently,
he was effectively deprived of the opportunity to defend himself from the
charge that he lacked the capacity to do his work and that his conduct was
unsatisfactory. As well, during his appeal to the CSCRO-IV, he was not
furnished with the submissions of Mayor Bendaa that he could have
opposed. He was also denied substantive due process because he was
dismissed from the service without a valid cause for lack of any factual or
legal basis for his want of capacity and unsatisfactory conduct.
Thus, we reject petitioners argument that the CA erred when it acted upon
3 remedy availed of by respondent when he filed a petition for
the erroneous
review considering
that the assailed decision is not in the nature of
6
"awards, judgments, final orders or resolutions of or authorized by any
quasi-judicial agency in the exercise of its quasi-judicial functions" as
prescribed under Rule 43 of the Rules of Court. While Sections 71 and 72 of
Rule V (B) of the Uniform Rules on Administrative Cases in the Civil
Service 27 provide for the remedy of an appeal from decisions of its
regional offices to the Commission proper, Magnayes petition to the CA
comes under the exceptions to the doctrine of exhaustion of administrative
remedies. The CA correctly cited Republic v. Lacap,28 where a violation of
due process is listed to be among the noted exceptions to the rule. As

discussed above, Magnayes dismissal was tainted with irregularity because

the notice given to him comes short of the notice contemplated by law and
jurisprudence. The CA correctly exercised jurisdiction over this case where
standards of due process had been patently breached.
Having been illegally dismissed, Magnaye should be reinstated to his
former position without loss of seniority and paid backwages and other
monetary benefits from the time of his dismissal up to the time of his
reinstatement. In our decision in Civil Service Commission v. Gentallan,29
we ruled that for reasons of justice and fairness, an illegally dismissed
government employee who is later ordered reinstated is entitled to
backwages and other monetary benefits from the time of his illegal
dismissal until his reinstatement because he is considered as not having
left his office.
WHEREFORE, the petition is DENIED. The February 20, 2008 Decision of the
Court of Appeals and its June 11, 2008 Resolution denying the motion for
reconsideration in CA-G.R. No. SP No. 85508 are AFFIRMED.

SANTOS V. YATCO (1959)

Petition for certiorari to revoke the order of the respondent judge cancelling
his previous order of execution. For the reasons stated hereinafter, it should
be denied.
It appears that in civil Case No. Q-2664 of Quezon City Court of First
Instance, the parties submitted on December 9, 1957, a compromise
agreement whereby, referring to the sale by installment of a parcel of land
made by plaintiffs Pacita V. De los Santos and Jose v. de los Santos to
defendant Francisco Mendoez, they asked the court to render a judgment
subject t the following conditions:

Defendant further alleged, also under oath, among other things, that he
applied for and secured the necessary loan from the GSIS; that plaintiffs
had been so advised on March 28, 1958; but plaintiff Pacita V. de los Santos
"arbitrarily and illegally demands and continuous demanding of defendant
that before she complies with the content of said (verbal) agreement,
defendant should pay her P1,000.00 by way of attorney's fees plus the
balance of defendant's indebtedness computed by her in the amount of
P14,363.00, excluding interest yet, all to be taken from defendant's GSIS
loan as approved, and that the P1,000.00 already paid by defendant to her
as stated in paragraph 4, supra, is considered by her forfeited in her favor. .
. ."

a. On or before December 26, 1957, defendant shall pay to plaintiffs the

amount of P1,000.00;
b. Defendant shall pay P300.00 monthly installment within the first five
days of every month beginning January, 1958, until the balance shall have
been paid in full;
c. The balance shall bear interest at 10% per annum;
d. That balance of defendant to pay P1,000.00 on or before December 26,
1957 and/or any two (2) successive monthly installments shall be cause for
plaintiffs to demand of defendant to immediately vacate the premises with
forfeiture in plaintiffs favor of all previous payments made; that if
defendant will refuse to voluntarily vacate, plaintiffs can ask for execution
of judgment against the defendant;
e. That plaintiffs shall execute the necessary ABSOLUTE DEED OF SALE of
the lot, Lot No. 4, Block No. 13 T. C.T. No. 25094, Quezon City Registry, in
favor of defendant upon payment in full of the balance. Wherefore, the
court issued on December 10, 1957, a decision approving the agreement,
and saying "judgment is hereby rendered in accordance with the terms and
conditions set forth therein, for the parties to comply therewith."

This urgent motion was taken up on April 19, 1958. After listening to the
parties, the judge in open court ordered; "in view of the statement of
counsel for plaintiffs that they are still open to an amicable settlement,
action on the motion to quash writ of execution of the defendant is held in
abeyance for two (2) weeks during which period they can settle the case
amicably and report to the Court whatever with agreement they may have
reached."

On March 10, 1958, plaintiffs in the same case filed a motion for execution,
because defendant had allegedly neglected to pay monthly installments
since January 1958. Plaintiffs set the motion for hearing on March 15, 1958.
However, on March 14, 1958, defendants moved (with the conformity of
plaintiffs' counsel) for postponement to March 22, 1958 "to give the parties
sufficient time to come to a more just, fair and equitable agreement."
(Annex "E") And the judge postponed, as requested.

The judge called the parties to a pre-trial or conference on June 2, 1958.

Noting defendant's insistance on non-violation of the compromises
agreement, he set the case for hearing on June 3, 1958. On said date
according to the Judge, Atty. Bernardo (for plaintiffs) refused to attend the
hearing, and defendant proved the material allegations of his urgent
motion as hereinabove set forth.

It is not clear happened at the hearing on March 22, 1958. According to

plaintiffs, Mendoez admitted he violated the agreement, asked for, and
was granted, two days to settle with plaintiffs, but he failed to do so.
According to defendant there was a misunderstanding at the hearing. The
fact is, the court issued on March 25, 1958, an order of execution. However,
defendant Mendoez filed on April 17, 1958, an urgent motion to quash the
3
writ of execution,
asserting under oath that "immediately after the
execution of7the compromise agreement . . . plaintiff Pacita V. de los Santos
and defendant Francisco Mendoez entered into a verbal agreement
whereby the former assured and led defendant to believe that provided he
could pay in full and at one time the balance of his indebtedness to her
through a GSIS Government Service Insurance System) loan which she is
willing to facilitate for defendant, she would execute the necessary deed of
absolute sale in favor of the defendant for Lot No. 4, Block No. 13-C, Pcs3312-AMD of T.C.T. No. 25094 of Quezon City and would consider the terms
and conditions favorable to her in their compromise agreement
unenforceable against defendant. . . ."

On April 28, 1958, defendant manifested in writing that he conferred with

plaintiff Pacita V. de los Santos on April 22, 1958, that he made known to
her "that he is ready to pay and is offering her the sum of P13,563, his
balance indebtedness to her, in accordance with their verbal agreement on
December 9, 1957 . . . Plaintiff Pacita V. de los Santos brushed aside
defendant's offer of payment, and instead, stated that she will abide by
their said agreement only if she will be paid P14,500.00. She added that
she is demanding now, P14,500.00 after she has forfeited the P1,000.00
already paid by defendant to her, and that she can not allow the P1,000.00
be deducted from the remaining balance of P14,563.00."

Wherefore, convinced that there was no justification or the issuance of the

writ of execution, the Hon. Nicasio Yatco, Judge, quashed it by his order of
June 4, 1958. Hence this petition for certiorari to revoke that particular
order, which petition must necessarily be based on lack of jurisdiction or
abuse of discretion. 1
There is no question in this country that a judge has jurisdiction to quash a
writ of execution issued by him, particularly where it was improvidently
issued. (Dimayuga vs. Raymundo, 76 Phil., 143, 42 Off. Gaz., 2121). See
also Garcia vs, Muoz, 103 Phil., 628.
Was there abuse of discretion? We think not. In the first place, there being
opposition on the part of the defendant, who alleged and proved a
subsequent verbal agreement amending the compromise, execution could
not validly be decreed without a hearing. As we said in Co. vs. Lucero, 100
Phil., 160, 52 Off. Gaz., (17), 7255, when under similar circumstances a
breach of the compromise agreement is alleged, "there arises a cause of
action which must be passed upon by the court requiring a hearing to
determine whether such breach had really taken place." In the second

place, the allegations proved by Mendoez about their verbal agreement,

his having secured a loan from the GSIS and his consequent ability to
discharge his obligation seemingly justified the court's refusal to eject
defendant from the premises (on execution) was the consequent forfeiture
in favor of the plaintiffs of more than P12,000.00 already paid by defendant
as previous installments of the purchase price, 3not to mention the of
defendants use of the house and theatre erected that parcel of land. Upon
the other hand, the respondent judge's action caused no irreparable or
undue harm plaintiffs, because the latter still have the judgment Mendoez.
Note particularly that their unpaid continuous to earn 10% interest.
Wherefore, as the court had jurisdiction and has committed not grave
abuse of discretion, the writ of certiorari may not be issued.
Petition denied, with costs against petitioners.

3
8

DE LA CRUZ V. CA (1999)
Petitioners are public school teachers from various schools in Metro Manila
who were simultaneously charged, preventively suspended, and eventually
dismissed in October 1990 by then Secretary Isidro D. Cario of the
Department of Education, Culture and Sports (DECS), in decisions issued by
him which uniformly read This is a mutu-propio administrative complaint
separately filed by the Secretary of Education, Culture and Sports against
the following public school teachers . . . . based on the report submitted by
their respective school principals wherein it was alleged that the abovenamed teachers participated in the mass action/illegal strike in Sept. 19-21,
1990 and subsequently defied the return-to-work order dated September
17, 1990 issued by this Office, which acts constitute grave misconduct,
gross neglect of duty, gross violation of Civil Service Law, Rules and
Regulations and reasonable office regulations, refusal to perform official
duty, gross insubordination conduct prejudicial to the best interest of the
service and absence without official leave (AWOL), in violation of
Presidential Decree 807, otherwise known as the Civil Service Decree of the
Philippines.
Required to explain within a period of not less than 72 hours but not more
than 5 days from receipt of the complaint, respondents failed to submit the
required answer within the given time up to the present, and despite the
denial of their request for extension of 30 days within which to submit their
answers dated September 25, 1990 filed by their counsel, Atty. Gregorio
Fabros, in a letter of this Office to him dated Septmber 28, 1990,
respondents failed to submit the same, which failure, is considered a waiver
on their part of their right to answer the charges and to controvert the
same.
Wherefore, after a careful evaluation of the records, this Office finds the
respondents guilty as charged. In accordance with Memorandum Circular
30 s. 1989 of the Civil Service Commission on Guidelines in the Application
of Penalty in Administrative Cases, the herein respondents are dismissed
from Office effective immediately.
The decisions dismissing petitioners were immediately implemented.
Petitioners appealed to the Merit Systems Protection Board (MSPB) and
then to the Civil Service Commission (CSC). In 1993 the CSC found
petitioners guilty of "conduct prejudicial to the best interest of the service"
for having participated in the mass actions and imposed upon them the
reduced penalty of six (6) months' suspension. However, in view of the
length of time that petitioners had been out of the service by reason of the
immediate implementation of the dismissal orders of Secretary Cario, the
CSC likewise3 ordered petitioners' automatic reinstatement in the service
without back9wages.
Petitioners were unhappy with the CSC decision. They initially filed petitions
for certiorari with this Court, docketed as G.R. Nos. 111998, 2 1144355506, 3 and 116312-19, 4 which were all referred to the Court of Appeals
pursuant to Revised Administrative Circular No. 1-95 5 and there redocketed as CA-G.R. SP No. 37620, CA-G.R. SP No. 37619 and CA-G.R. SP
Nos. 37784, 37808-37014, respectively.
On 29 November 1995 the Special Third Division of the Court of Appeals 6
rendered a joint decision in CA-G.R. SP Nos. 37619-20 dismissing the

petitions for lack of merit. 7 The appellate court ruled that the questioned
resolutions of the Civil Service Commission finding petitioners guilty of
conduct prejudicial to the best interest of the service were based on
reasonable and justifiable grounds; that petitioners' perceived grievances
were no excuse for them not to conduct classes and defy the return-to-work
order issued by their superiors; that the immediate execution of the
dismissal orders of Secretary Cario was sanctioned by Sec. 47, par. (2), of
the Administrative Code of 1987 (E.O. No. 292) as well as Sec. 37, par. (b),
Art. IX of PD No. 807, 8 and Sec. 32, Rule XIV of the Omnibus Rules
Implementing Book V of E. O. No. 292. Their motion for reconsideration
having been denied on 15 May 1997, 9 petitioners then appealed by
certiorari to this Court on 26 June 1997, docketed as G.R. No. 129221.
Meanwhile, on 24 April 1998 the Tenth Division of the Court of
Appeals 10 rendered a joint decision in CA-G.R. SP No. 37784 and Nos.
37808-14 likewise dismissing the petitions for lack of merit. 11 The
appellate court rejected petitioners' contention that they should not have
been penalized for participating in the September/October 1990 mass
actions because they were merely exercising their constitutional right to
free assembly. In so ruling the Court of Appeals cited Manila Public School
Teachers Association v. Laguio, Jr. 12 wherein this Court ruled that the
public school teachers' mass actions of September/October 1990 were "to
all intents and purposes a strike . . . constitut[ing] a concealed and
unauthorized stoppage of, or absence from, work which it was the teachers'
duty to perform, undertaken for essentially economic reasons." Petitioners'
contention.that secretary Cario's decision to dismiss them was not
supported by evidence was likewise rejected in view of petitioners'
admissions and/or failure to refute the factual finding that petitioners
actually joined the mass actions based on the report of absences submitted
by their respective school principals. Their motion for reconsideration
having been denied in the resolution of 20 August 1996, 13 petitioners then
filed a petition for review on certiorari with this Court on 1 October 1996,
docketed as G.R. No. 126183.
By resolution of 7 October 1997 we granted petitioners' motion for the
consolidation of G.R. Nos. 126183 and 129221 involving as they did
common questions of fact and law.
Petitioners contend that the Court of Appeals grievously erred in affirming
the CSC resolutions finding them guilty of conduct prejudicial to the best
interest of the service when their only "offense" was to exercise their
constitutional right to peaceably assemble and petition the government for
redress of their grievances. Moreover petitioners insist that the mass
actions of September/October 1990 were not "strikes" as there was no
actual disruption of classes. Petitioners therefore ask for exoneration or, in
the alternative, award of back wages for the period of three (3) years when
they were not allowed to work while awaiting resolution of their appeals by
the MSPB and CSC, deducting the period of six (6) months' suspension
eventually meted them.
The petitions must be denied in view of previous rulings of this Court
already settling all the issues raised by petitioners. It is a very desirable
and necessary judicial practice that when a court has laid down a principle
of law as applicable to a certain state of facts, it will adhere to that principle
and apply it to all future cases where the facts are substantially the same.
14 Stare decisis et non quieta movere. Stand by the decisions and disturb
not what is settled. 15

As early as 18 December 1990 we have categorically ruled in the

consolidated cases of Manila Public School Teachers Association v.
Laguio Jr., 16 and Alliance of Concerned Teachers v. Hon. Isidro Cario 17
that the mass actions of September/October 1990 staged by Metro Manila
public school teachers "amounted to a strike in every sense of the term,
constituting as they did, a concerted and unauthorized stoppage of or
absence from work which it was said teachers' sworn duty to perform,
carried out for essentially economic reasons to protest and pressure the
Government to correct what, among other grievances, the strikers
perceived to be the unjust or prejudicial implementation of the salary
standardization law insofar as they were concerned, the non-payment or
delay in payment of various fringe benefits and allowances to which they
were entitled, and the imposition of additional teaching loads and longer
teaching hours." In Rolando Gan v. Civil Service Commission, 18 we denied
the claim that the teachers were thereby denied their rights to peaceably
assemble and petition the government for redress of grievances reasoning
that this constitutional liberty to be upheld, like any other liberty, must be
exercised within reasonable limits so as not to prejudice the public welfare.
But the public school teachers in the case of the 1990 mass actions did not
exercise their constitutional rights within reasonable limits. On the contrary,
they committed acts prejudicial to the best interest of the service by
staging the mass protests on regular school days, abandoning their classes
and refusing to go back even after they had been ordered to do so. Had the
teachers availed of their free time recess, after classes, weekends or
holidays to dramatize their grievances and to dialogue with the proper
authorities within the bounds of law, no one not the DECS, the CSC or
even the Supreme Court could have held them liable for their
participation in the mass actions. 19
With respect to our ruling in PBM Employees Organization v. Philippine
Blooming Mills Co., Inc., 20 invoked by petitioners, we have likewise already
ruled in the Rolando Gan case 21 that the PBM ruling that the rights of
free expression and assembly could not be lightly disregarded as they
occupy a preferred position in the hierarchy of civil liberties was not
applicable to defend the validity of the 1990 mass actions because what
were pitted therein against the rights of free expression and of assembly
were inferior property rights while the higher consideration involved in the
case of the striking teachers was the education of the youth which must, at
the very least, be equated with the freedom of assembly and to petition the
government for redress of grievances. 22
We affirmed the foregoing rulings in Bagana v. Court of Appeals 23 by
denying a similar petition filed by another group of teachers who
participated in the 1990 mass actions but who claimed to have been
4
merely exercising
their constitutional right to free assembly. We held in
Bagana that0the Court of Appeals committed no reversible error in affirming
the CSC resolutions finding the teachers guilty of conduct prejudicial to the
best interest of the service and imposing penalties of six (6) months'
suspension without pay. In Bangalisan v. Court of Appeals 24 we added that
the persistent refusal of the striking teachers to call the mass actions by
the conventional term "strike" did not erase the true nature of the mass
actions as unauthorized stoppages of work the purpose of which was to
obtain a favorable response to the teachers' economic grievances. We
again stressed that the teachers were penalized not because they
exercised their right to peaceably assemble but because of the manner by
which such right was exercised, i.e., going on unauthorized and unilateral

absences thus disrupting classes in various schools in Metro Manila which

produced adverse effects upon the students for whose education the
teachers were responsible. But herein petitioners contend that classes were
not actually disrupted because substitute teachers were immediately
appointed by Secretary Cario. Besides being a purely factual assertion
which this Court cannot take cognizance of in a petition for review, the fact
that the prompt remedial action taken by Secretary Cario might have
partially deflected the adverse effects of the mass protests did not erase
the administrative liability of petitioners for the intended consequences
thereof which were the very reason why such prompt remedial action
became necessary.
Considering the foregoing, we find that respondent Court of Appeals did not
err in sustaining the CSC resolutions finding petitioners guilty of conduct
prejudicial to the best interest of the service. As an alternative prayer,
petitioners ask that in the event their exoneration is not decreed they be
awarded back wages for the period when they were not allowed to work by
reason of the supposed unjustified immediate implementation of the
dismissal orders of Secretary Cario while awaiting resolution of their
appeals by the MSPB and CSC.
The issue of whether back wages may be awarded to teachers ordered
reinstated to the service after the dismissal orders of Secretary Cario were
commuted by the CSC to six (6) months' suspension is already settled.
In Bangalisan v. Court of Appeals 25 we resolved the issue in the negative
on the ground that the teachers were neither exonerated nor unjustifiably
suspended, two (2) circumstances necessary for the grant of back wages in
administrative disciplinary cases. Like herein petitioners, those in
Bangalisan were also teachers who participated in the 1990 mass actions
for which they were dismissed by Secretary Cario but ordered merely
suspended for six (6) months by the Civil Service Commission. On a plea
that the immediate implementation of the dismissal orders of Secretary
Cario was unjustified, thus warranting an award of back wages the Court
said
As to the immediate execution of the decision of the Secretary against
petitioners, the same is authorized by Section 47, paragraph (2), of
Executive Order No. 292, thus: "The Secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities shall have jurisdiction
to investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction. Their decision shall be final
in case the penalty imposed is suspension for not more than thirty days or
fine in an amount not exceeding thirty days' salary. In case the decision
rendered by a bureau or office is appealable to the Commission, the same
shall be executory except when the penalty is removal, in which case the
same shall be executory only after confirmation by the Secretary
concerned. And since it was already the final dismissal orders of Secretary
Cario which were being carried out, immediate implementation even
pending appeal was clearly sanctioned by the aforequoted provision of the
Administrative Code of 1987. 26 Hence, being legal, the immediate
execution of the dismissal orders could not be considered unjustified.
The cases cited by petitioners to support their prayer for back salaries,
namely, Abellera v. City of Baguio 27 and Bautista v. Peralta 28 being cases
which involved the unjustified immediate execution of the dismissal orders
of the then Civil Service Commissioner pending appeal to the Civil Service

Board of Appeals are therefore not applicable to justify petitioners' prayer.

Neither could petitioners be considered to have been exonerated from the
charges levelled against them by Secretary Cario from the mere fact that
they were found guilty only of conduct prejudicial to the best interest of the
service by the CSC. It must be remembered that Secretary Cario charged
petitioners with grave misconduct, gross neglect of duty, gross violation of
civil service law, rules and regulations, etc., for having participated in the
1990 illegal mass actions. On appeal the CSC while affirming the factual
finding that petitioners indeed participated in the mass the factual finding
that petitioners indeed participated in the mass actions found them liable
only for conduct prejudicial to the best interest of the service. Clearly the
CSC decision did not proceed from a finding that petitioners did not commit
the acts complained of. Having been found to have actually participated in
the illegal mass actions although found answerable for a lesser offense,
petitioners could not be considered as fully innocent of the charges against
them. 29 Being found liable for a lesser offense is not equivalent to
exoneration. 30
Thus in Bangalisan we denied the claim for back wages of those teachers
who were found to have actually participated in the 1990 mass actions but
granted the claim of one Rodolfo Mariano who was absent only because he
attended the wake and interment of his grandmother. In Jacinto v. Court of
Appeals 31 we again denied the claim for back wages of teachers found to
have given cause for their suspension i.e., their unjustified abandonment of
classes to the prejudice of their students but granted the claim of Merlinda
Jacinto who was absent because of illness.
Petitioners do not deny, nay they even admit, having participated in the
1990 mass actions. Thus having given cause for their supension, their
prayer for backwages must be denied conformably with settled rulings of
this Court.
WHEREFORE, the petitions are DENIED and the assailed Decisions of the
Court of Appeals dated 29 November 1995 and 24 April 1996 are
AFFIRMED. No costs.

4
1

FLORES V. DRILON (1993)

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 the
proviso 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", 4 since 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 upon4prior authority of the Commission. The Commission shall not
grant the authority
sought unless it is satisfied that the position to be filled
2
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 fulltime 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.

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.

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

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 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.

4 is apparently based on a wrong premise. Congress did not

This argument
contemplate3making 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.

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.4Yes, 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 expressly provided 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.

4
5

PERALTA V. MATHAY (1971)

There is need in this appeal from a decision of respondent Auditor General
Ismael Mathay for an inquiry into the meaning and significance of the
constitutional inhibition against an officer or employee of the government
receiving additional or double compensation unless specifically authorized
by law, 1 the decisive legal question being whether or not the cost of living
allowance as well as incentive and Christmas bonuses paid to petitioner
Pedro G. Peralta, a Trustee of the Government Service Insurance System,
hereinafter called the GSIS, did fall within such a ban. The answer given by
respondent Auditor General was in the affirmative. After a careful study of
the matter, this Court arrives at a similar conclusion. Hence this appeal
cannot prosper.
The facts are undisputed. As set forth in the brief of petitioner, the GSIS, on
May 17, 1966, in a resolution duly passed, granted him an optional
retirement gratuity of P40,336.07. Of that amount, he was not able to
collect the sum of P7,032.26, covering P3,982.26 as cost of living
allowance, P1,275.00 as incentive bonus, and P1,775.00 as Christmas
bonus. Such items were not passed in audit. the view of respondent Auditor
General being that they should be deducted from his gratuity, although
during petitioners incumbency as Trustee, no question was raised when he
was paid such allowance and bonuses. Respondent Auditor General justified
his action on the ground that they "partake of the nature of additional
compensation," a trustees remuneration being fixed by law in the form of a
per diem of P25.00 for every board meeting of the GSIS attended.
Respondent so ruled on June 28, 1966, and maintained such a stand on
September 1, 1966 when he denied a motion for reconsideration. Hence
this appeal for review filed on September 29, 1966.
The ruling of respondent Auditor General, being in accordance with what
the Constitution requires, must be upheld.
1. It is expressly provided in the Constitution: "No officer or employee of the
government shall receive additional or double compensation unless
specifically authorized by law." 2 This is to manifest a commitment to the
fundamental principle that a public office is a public trust. It is expected of
a government official or employee that he keeps uppermost in mind the
demands of public welfare. He is there to render public service. He is of
course entitled to be rewarded for the performance of the functions
entrusted to him, but that should not be the overriding consideration. The
intrusion of the thought of private gain should be unwelcome. The
temptation to further personal ends, public employment as a means for the
acquisition of wealth, is to be resisted. That at least is the ideal. There is
then to be an awareness on the part of an officer or employee of the
government4that he is to receive only such compensation as may be fixed
by law. With
6 such a realization, he is expected not to avail himself of
devious or circuitous means to increase the remuneration attached to his
position. It is an entirely different matter if the legislative body would itself
determine for reasons satisfactory to it that he should receive something
more. If it were to be thus though, there must be a law to that effect. So the
Constitution decrees.
As is expressly declared in the Constitution, the Civil Service is to embrace
"all branches and subdivisions of the Government . . .." 3 Conformably to
the above, the Philippine Civil Service, by law, includes "all branches,
subdivisions and instrumentalities of the Government, including

government-owned or controlled corporations . . .." 4 Petitioner has not

disputed, nor can he dispute that as a trustee, he was an officer of the
government, the GSIS having been established in order "to promote the
efficiency and welfare of the employees of the Government of the
Philippines and to replace the [then] pension systems established in
[previous acts.]" 5 As such officer, petitioner cannot receive additional or
double compensation unless specifically authorized by law. Under the GSIS
Act, he is entitled as trustee "to a per diem of P25.00 for each day of actual
attendance in session." 6 As in the case of government-controlled
corporations, the term "per diems" was used in the sense of the
compensation or remuneration attached to the office of Trustee 7 Such is
not the meaning usually attached to it. So it was noted in Lexal
Laboratories v. National Chemical Industries Workers Union. 8 A "per diem"
is commonly identified with the daily allowance "for each day he (an officer
or employee) was away from his home base." Its usual signification is thus
that of a reimbursement for expenses incurred in the performance of ones
duties. If employed in a statute, as in this case, in the concept of
remuneration, however, there must be, to justify an additional
compensation, a specific law that so provides. Otherwise, fidelity to the
constitutional command is lacking.
A similar approach is called for in determining the nature of a cost of living
allowance. If it could rightfully be considered as in the nature of a
reimbursement rather than additional emoluments or perquisites, then the
ruling of respondent Auditor General cannot find support in the
Constitution. What was said in an American State decision 9 has relevance.
It was therein categorically stated "that it is universally held that an
allowance for expenses incident to the discharge of the duties of office is
not an increase of salary, a perquisite, nor an emolument of office." 10 To
the same effect is this excerpt appearing later in the opinion: "A careful
and, we believe, exhaustive examination of the decisions fails to disclose a
single case in which it has ever been held that a legislative act, providing
for an allowance, for expenses incurred in the discharge of official duties, to
a public officer, whose salary or compensation was fixed at a stated sum,
was in violation of provisions such as are found in many state Constitutions,
forbidding an increase of salary official terms, or forbidding the granting of
`fees, `perquisites, or `emoluments to such officer. Legislative acts which
directly in terms, or as construed, attempted to increase such salaries,
have been held invalid. But no decision has been found or, as we believe,
can be found, which holds a legislative act to be unconstitutional which
merely relieves an officer, who received a fixed salary or compensation,
from expending such salary for expenses incident to the performance of his
official duties." 11 It is worth noting that there are specific provisions in the
applicable statutes allowing trustees or directors, traveling expenses which
may be collected by the board of directors of the Philippine Virginia Tobacco
Administration; 12 traveling and subsistence expenses by the members and
board of directors of the Central Luzon-Cagayan Valley Authority; 13 and
traveling and other necessary expenses by the members of the Philippine
Medical Care Commission. 14 Such provisions are prompted by what may
appear to be an excess of caution, for the accepted doctrine is that an
allowance to take care of expenses incurred by an official to enable him to
fulfill his task cannot be looked upon as an additional compensation. Such a
principle does not come to the aid of petitioner though. He was unable to
show that the cost of living allowance received by him was in the nature of
a reimbursement. It did amount then to an additional compensation.

So it is in the case of the bonuses received by him. It is quite obvious that

by its very nature, a bonus partakes of an additional remuneration or
compensation. 15 The very characterization of what was received by
petitioner as bonuses being intended by way of an incentive to spur him
possibly to more diligent efforts and to add to the feeling of well-being
traditionally associated with the Christmas season would remove any doubt
that the Auditor General had no choice except to deduct from petitioners
gratuity such items.
2. It is apparent that respondent Auditor General accorded respect and
deference to a constitutional command. To impute legal error to his
actuation is to be oblivious of the fundamental postulate that the
Constitution is supreme. Obedience is mandatory. It cannot be disregarded.
Every public official is sworn to uphold it. There can be no justification for
any other course of action. To condone whether by intent or inadvertence

4
7

any deviation from what it prescribes is to display less than full fealty to the
cardinal precept of our polity. A mistaken sympathy for the situation in
which the petitioner did find himself cannot suffice to confer authority on
respondent to grant what is asked of him in view of the constitutional ban.
Both petitioner, who was himself once a public official, and respondent
Auditor General must be cognizant of the paramount character of the
Constitution. Thus everyone in the public service is only the more strongly
bound to submit to such supremacy and abide by the limitations which it
imposes upon every aspect of the authority thus conferred. 16
WHEREFORE, the decision of the Auditor General of June 28, 1966, as
reiterated in its order denying the motion for reconsideration of September
1, 1966, is affirmed. Without pronouncement as to costs.